Filed 07/22/20 by Cler k of Supreme Court


### IN THE SUPREME COURT STATE OF NORTH DAKOTA

2020 ND 162

In the Interest of Edward Skorick
Tessa M. Vaagen, Assistant State’s Attorney, Petitioner and Appellee

v. Edward Skorick, Resp ondent and Appellant

No. 20190349

Appeal from the District Court of Bu rleigh County, South Central Judicial District, the Honorable James S. Hill, Judge.

REVERSED AND REMANDED. Opinion of the Court by VandeWalle, Justice. Tessa M. Vaagen, Assistant State’s A ttorney, Bismarck, ND , petitioner and appellee. Tyler J. Morrow, Grand Forks, ND , for respondent and appellant.1 Interest of Skorick No. 20190349
VandeWalle, Justice.
[¶1] Edward Skorick appealed from a distr ict court order civilly committing him as a sexually dangerous individual . Skorick argues the court erroneously considered experts’ repor ts in making its decision. We reverse and remand for further proceedings.

I
[¶2] In September 2018, the State peti tioned to have Skorick civilly committed as a sexually dangerous indivi dual. Two experts, Dr. Richard Travis and Dr. Stacey Benson, submitted repor ts and each opined that Skorick met the criteria of a sexually dangerous in dividual and recommended that Skorick be committed as a sexually dangerous individual.
[¶3] Dr. Travis testified at the September 2019 hearing about his report relating to his opinion that Skorick i s a sexually dange rous individual . After Dr. Travis’ testimony on di rect examination, Skorick’ s attorney moved to strike Dr. Travis’ report, claiming the State did not offer his report into evidence at the hearing. The State argu ed it was not requ ired to admit th e report as an exhibit because the report was filed in the Odyssey system in 2018. The district court denied the motion an d stated Dr. Travis’ report would stand as part of the record.
[¶4] In October 2019, the district court issued an order finding Skorick engaged in sexually pred atory conduct, he has a congenital or acquired condition that is manifest ed by a sexual disorder, a personality disorder, or other mental disorder or dysfunction, and his condit ions make him likely to engage in further acts of sexually pred atory conduct that pose a danger to others. The court also found Skorick continues to have serious difficulty controlling his behavior. The court orde red Skorick civilly committed as a sexually danger ous individual.2 II
[¶5] Skorick argues the district court erre d by considering Dr. Benson’s and Dr. Travis’ reports in finding Skorick was a sexually dangerous individual.
[¶6] A district court has broad discretion in deciding whether to admit or exclude evidence. State v. Muhammad , 2019 ND 159, ¶ 6, 931 N.W.2d 181. A court abuses its discretion when it acts arbitrarily, unconscionably, or unreasonably, it misinterprets or misapp lies the law, or when its decision is not based on a rational mental process leading to a reasoned decision. Larson v. Larson , 2016 ND 76, ¶ 32, 878 N.W.2d 54.
[¶7] Civil commitment of sexually dang erous individuals is governed by N.D.C.C. ch. 25-03.3. “At the commi tment proceeding, any testimony and reports of an expert who conducted an examination are admissible, including risk assessment evaluations.” N.D.C.C. § 25-03.3-13. “The effect of this language is to allow the admission of expert re ports which would otherwise be excluded from admission as hear say pursuant to N.D.R.Ev. 807.” Matter of Gomez , 2018 ND 16, ¶ 15, 906 N.W.2d 87.
[¶8] Civil commitment proceedings are civi l in nature, and the North Dakota Rules of Civil Procedure apply. Gomez , 2018 ND 16, ¶ 10, 906 N.W.2d 87. Under N.D.R.Civ.P. 61, no error in admitting or excluding evidence is grounds for vacating a judgment or order. All errors and defe cts that do not affect a party’s substantial rights are harmle ss errors and must be disregarded. N.D.R.Civ.P. 61. If evidence was erro neously admitted, we will consider the entire record and decide in light of a ll the evidence whether the error was so prejudicial the defendant’s rights were affected and a different result would have occurred absent the error. State v. Azure , 2017 ND 195, ¶ 22, 899 N.W.2d 294.
[¶9] Here, it appears the distr ict court relied on Dr. Benson’s and Dr. Travis’ reports in making its deci sion. The district court’s memorandum decision and order stated that although Dr. Benson did not testify at the hearing, the court “received and reviewed her re port.” The court’s order al so states, “The [report] of each psychologist was reviewed extens ively by the court in preparation for3 the hearing and again following the heari ng. The findings that follow are based upon a weighing of the te stimony and credibility of ea ch psychologist in light of their respective ev aluative findings.”
[¶10] The State concedes the district cour t may have erroneously considered Dr. Benson’s report. The State did not o ffer the report into evidence at the commitment hearing; however, it argues any error in considering the report was harmless. But the court’ s order specifically mentio ned Dr. Benson’s report seven times in its findings of fact. To the extent the court relied on Dr. Benson’s report in making its decisi on, we cannot conclude its reliance on the report was harmless. We conclude th e court abused its discre tion in considering Dr. Benson’s report.
[¶11] With regard to Dr. Travis’ report, the State did not offer it into evidence, and the district court’s order is silent on whether it was part of the hearing record. The court denied Skorick’s motion to strike Dr. Travis’ report at the commitment hearing and stated “[t]he repo rt stands as part of the record.” It is unclear whether the court meant the re port was part of th e complete record before the court or the hearing record . Because we are uncertain whether Dr. Travis’ report was admitted at the he aring, we reverse and remand for a determination of whether the report was pa rt of the hearing re cord. If not, the court must make findings on whethe r Skorick is a sexually dangerous individual on the basis of Dr. Travis’ testimony at the hearing.

III
[¶12] The order is reversed and remanded for proceedings consistent with this opinion.
[¶13] Gerald W. VandeWalle Jerod E. Tufte Daniel J. Crothers Jon J. Jensen, C.J.4 McEvers, Justice, dissenting.
[¶14] I respectfully dissent. I agree th e district abused its discretion in considering Dr. Benson’s report because it was never offere d into evidence. Majority, at ¶ 10. Even a ssuming the court abused its discretion in considering Dr. Travis’ report, I would affirm because the error is harmless.
[¶15] The appellant has the burden to estab lish not only the trial court erred, but also the error was highly prejudicial. Howes v. Kelly Services, Inc. , 2002 ND 208, ¶ 3, 654 N.W.2d 422. Even when the district court abuses its discretion in admitting evidence it is not reversible er ror unless “all the competent evidence is insufficient to support the judgment or unless it affirmatively appears that the incompeten t evidence induced the court to make an essential finding which would no t otherwise have been made.” Interest of J.S.L. , 2009 ND 43, ¶ 25, 763 N.W.2d 783 (r elying on N.D.R.Civ.P. 61 setting forth rule on harmless error) (citations omitted). “U nder N.D.R.Civ.P. 61, no error in admitting or excluding evidence is ground for granting a new trial or otherwise disturbing a judgment or order.” Solwey v. Solwey , 2018 ND 82, ¶ 23, 908 N.W.2d 690. I am not convinced the court was induced by either of the reports in making its findings.
[¶16] In order to determine whether the district court’s error was harmless, we must consider what findings are requ ired and look at the findings made and evidence on which they were based. This was an involuntary commitment hearing under N.D.C.C. ch. 25-03.3, which authorizes commitment if the person is found to be a “sexually dangerous individual.” See Matter of Barrera , 2008 ND 25, ¶ 5, 744 N.W.2d 744.
A “sexually dangerous in dividual” is defined by a three-part test: (1) the individual has engaged in sexually predatory conduct; (2) the individual has a congenital or acquired condition that is manifested by a sexual disorder, a personality disorder, or other mental disorder or dysfunction; and5 (3) the disorder makes the individual likely to enga ge in further acts of sexually predatory conduc t which constitute a danger to the physical or mental heal th or safety of others.

Id. (relying on Matter of Anderson , 2007 ND 50, ¶ 22, 730 N.W.2d 570 and N.D.C.C. § 25-03.3-01(8)). This Court ha s construed the defini tion of a sexually dangerous individual to mean “proof of a nexus between the requisite disorder and dangerousness encompasses proof th at the disorder involves serious difficulty in contro lling behavior.” Matter of G.R.H. , 2006 ND 56, ¶ 18, 711 N.W.2d 587 (discussing the due process requirements of Kansas v. Crane , 534 U.S. 407 (2002)).

[¶17] The district court found Dr. Travis te stified extensively and persuasively at the hearing regarding th e contents of his report. The court indicated its findings of fact were based upon a we ighing of the testimo ny and the credibility of each psychologist in light of th eir respective evaluative findings.
[¶18] In its finding on the first statutory el ement, the district court referred to Dr. Travis’ testimony regarding Skorick’s history of predatory conduct stating, “Dr. Travis testified that Mr. Skorick has a documented history of acting out sexually as an adolesce nt and has a clear history of sexually predatory conduct.” The court then go es on to observe neither Dr. Travis nor Dr. Benson dispute Skorick’s convictions satisfy the element for “sexually predatory conduct.” It is hard to imagine how considering Dr. Benson’s report, which was consistent with Dr. Travis’ testimony, could be prejudicial to Skorick.
[¶19] In its finding on the second statuto ry element, the district court again considered the reports of Dr. Travis an d Dr. Benson, which provided similar, but not identical diagnoses. The cour t stated: “While the diagnoses are not identical, there are some similarities and Dr. Travis testified persuasively regarding his reasoning for his de termination.” The further found:

Dr. Travis testified that these diagnoses are ev idenced by his extensive criminal history that included numerous offenses of sexual acts against prepubescent and pubescent fema le victims. . . . . Dr. Travis expressed that he is particularly concerned because Mr. Skorick continues to co mmit sexual acts despite the6 consequences that follow for his ac tions and he even continues to commit sexual acts wh ile in the NDDOCR.
[¶20] Again, I fail to see the prejudice to Skorick by the district court considering the reports, when ultimately it was Dr. Travis’ testimony the court found persuasive in making its fi nding on the second element.
[¶21] In regard to the thir d statutory element, th e district court again considered Dr. Travis’ and Dr. Benson’s re ports which came to similar results. The court noted that Dr. Travis expl ained through his te stimony Skorick is “well above average risk to reoffend,” and his mental health disorders and his pattern of sexually predat ory conduct show that Sk orick cannot control his behavior in the community and he will lik ely reoffend. The court also noted, Dr. Travis testified to the fact that Skorick takes no ow nership for his past behavior and shows no remo rse for his victims which sh ows Skorick’s antisocial personality disorder continues to be a problem and will cont inue to aggravate his other disorders. Because Dr. Travis ’ testimony was adequa te to meet this element, Skorick has failed to show he wa s prejudiced. In addition, in regard to the three statutory prongs, Skorick’ s attorney conceded there was testimony in support, stating, “I will wholly admit without going forward on any cross that the State has provided testi mony as to those three things.”
[¶22] In regard to Skorick’s difficulty co ntrolling his behavior, and the nexus between his disorder an d his dangerousness, th e district court again considered the testimony and the repor ts of Dr. Travis and Dr. Benson. The court stated Dr. Travis te stified Skorick has seriou s difficulty controlling his behavior, noting more than fifty ma jor violations and a score of minor violations while in custody. The court noted Dr. Travis te stified Skorick was sexually aggressive towards another in mate and Skorick ma sturbating in front of another inmate was a display of Skor ick’s repressed sexu al aggression he could no longer control. Th e court noted, “Dr. Travis specifically testified that Mr. Skorick would have cont inued difficulty controlling his behavior due to his combined sexual disorders and person ality disorder, combined with his continued behavior while in the NDDOC R, the raised fist at one of the NDDOCR staff members, and Mr. Skorick’s lack of treatment.”7 [¶23] Because the testimony of Dr. Travis supports the district court’s findings Skorick meets all three elements of a se xually dangerous individual, and there is a nexus he has serious difficulty co ntrolling his behavior, I would affirm.
[¶24] Lisa Fair McEvers