                Filed 6/27/19 by Clerk of Supreme Court
                       IN THE SUPREME COURT
                      STATE OF NORTH DAKOTA


                                   2019 ND 169


In the Matter of R.A.S.,
       ----------
Birch P. Burdick, Cass County                              Petitioner and Appellee
State’s Attorney,

       v.

R.A.S.,                                                  Respondent and Appellant


                                  No. 20190016


      Appeal from the District Court of Cass County, East Central Judicial District,
the Honorable Steven L. Marquart, Judge.

       REVERSED.

       Opinion of the Court by Crothers, Justice.

       Leah J. Viste, Assistant State’s Attorney, Fargo, ND, for petitioner and
appellee.

       Tyler J. Morrow, Grand Forks, ND, for respondent and appellant.
                                   Matter of R.A.S.
                                    No. 20190016


       Crothers, Justice.
[¶1]   R.A.S. appeals from a district court order denying his petition for discharge
and continuing commitment as a sexually dangerous individual. The order denying
R.A.S.’s petition for discharge is reversed for lack of findings sufficient to conclude
the due process requirement has been met under Kansas v. Crane, 534 U.S. 407
(2002).


                                            I
[¶2]   R.A.S. was convicted of gross sexual imposition in 1991 and sentenced to
eight years. In 2001 R.A.S. was convicted of possession of stolen property, and in
2002 assault on a corrections officer. As part of the sentence for the possession of
stolen property charge, the district court recommended R.A.S. receive a mental health
evaluation. Before his scheduled release in 2004, the State successfully petitioned to
commit R.A.S. as a sexually dangerous individual. In 2007 R.A.S. requested his
statutory right to review his commitment. The district court found R.A.S. continued
to be a sexually dangerous individual. R.A.S. appealed the finding and this Court
remanded because there were insufficient findings of fact and the district court used
a conclusory statement that the State met its burden of proof. Matter of R.A.S.,
2008 ND 185, ¶¶ 7-8, 756 N.W.2d 771. The district court made explicit findings
detailing R.A.S.’s conduct and how it related to the criteria for establishing a sexually
dangerous individual.       We affirmed.        Matter of R.A.S., 2009 ND 101,
766 N.W.2d 712. In 2010, 2012, and 2016 R.A.S. petitioned for discharge and did
not appeal the district court orders denying his petitions.
[¶3]   On May 2, 2018, R.A.S. requested a discharge hearing under N.D.C.C. §
25-03.3-18. At the January 11, 2019 hearing, a psychologist testified R.A.S. is likely
to engage in further acts of sexually predatory conduct based on actuarial tests and
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review of past conduct. The psychologist testified to a situation where R.A.S.
requested a lower prescribed level of medication. The State Hospital agreed and
revoked some of R.A.S.’s privileges at the onset of the lower dosage to determine
whether the new dosage met his medical needs. R.A.S. protested the revocation of
privileges by refusing two doses of his medication, but later agreed to remain on the
higher dosage in return for his privileges continuing intact. The psychologist testified
R.A.S.’s refusal to twice take the prescribed medication demonstrated his inability to
control his behavior.
[¶4]   The district court used this situation as the basis for finding R.A.S. is unable
to control his behavior. On January 15, 2019, the district court denied R.A.S.’s
application for discharge. R.A.S. timely appealed.


                                           II
[¶5]   This Court reviews civil commitments of sexually dangerous individuals under
a modified clearly erroneous standard, and we will affirm the district court’s decision
unless it is induced by an erroneous view of the law, or we are firmly convinced the
decision is not supported by clear and convincing evidence. Interest of Tanner,
2017 ND 153, ¶ 4, 897 N.W.2d 901. At a discharge hearing, the burden is on the
State to prove by clear and convincing evidence the petitioner remains a sexually
dangerous individual. N.D.C.C. § 25-03.3-18(4). The State must prove three
statutory elements to show the petitioner remains a sexually dangerous individual:
       “[1] [the individual] engaged in sexually predatory conduct and [2] . . .
       has a congenital or acquired condition that is manifested by a sexual
       disorder, a personality disorder, or other mental disorder or dysfunction
       [3] that makes that individual likely to engage in further acts of sexually
       predatory conduct which constitute a danger to the physical or mental
       health or safety of others.”
N.D.C.C. § 25-03.3-01(8).
[¶6]   The State also must meet substantive due process requirements by proving the
individual has serious difficulty in controlling his behavior. Tanner, 2017 ND 153,

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¶ 5, 897 N.W.2d 901. Consistent with the holding in Kansas v. Crane, 534 U.S. 407
(2002), the definition of a sexually dangerous individual requires “proof of a nexus
between the requisite disorder and dangerousness to encompass proof that the
disorder involves serious difficulty in controlling behavior and suffices to distinguish
a dangerous sexual offender whose disorder subjects him to civil commitment from
the dangerous but typical recidivist in the ordinary criminal case.” Interest of Carter,
2019 ND 67, ¶ 4, 924 N.W.2d 112 (internal quotation marks omitted). Neither our
law nor Kansas v. Crane, “require the conduct evidencing the individual’s serious
difficulty in controlling his behavior to be sexual in nature.” Matter of Wolff,
2011 ND 76, ¶ 7, 796 N.W.2d 644.
[¶7]   Constitutional considerations require a causal connection between the disorder
and inability to control behavior, which would likely result in future sexually
predatory conduct. Tanner, 2017 ND 153, ¶ 5, 897 N.W.2d 901; Matter of J.M.,
2019 ND 125, ¶ 9, 927 N.W.2d 422. The district court may consider sexual and non-
sexual conduct demonstrating an individual’s serious difficulty controlling behavior,
but the presence of a mental disorder or condition alone does not satisfy the
requirement of clear and convincing evidence the individual is likely to engage in
further sexually predatory conduct. J.M., 2019 ND 125, ¶ 9, 927 N.W.2d 422. The
district court must state the specific factual findings used as a base for legal
conclusions, and errs as a matter of law if the findings are insufficient or do not
support the legal conclusions. Id. at ¶ 10.


                                           III
[¶8]   R.A.S. concedes the State met its burden on the first two prongs of N.D.C.C.
§ 25-03.3-01(8). R.A.S. stipulated to factor one during the discharge hearing,
conceding he engaged in sexually predatory conduct. R.A.S. acknowledged he suffers
from specified paraphilic, exhibitionistic, bipolar I, and specified personality disorders
with antisocial and schizotypal features. The district court also found clear and
convincing evidence of the third prong, that R.A.S. is likely to engage in further acts
                                            3
of sexually predatory conduct, based on actuarial test scores and dynamic risk factors
placing R.A.S. at above-average risk of re-offending. The psychologist testified these
factors have caused R.A.S. to act out sexually as recently as 2016.
[¶9]   In addition to the three statutory requirements, substantive due process requires
proof R.A.S. has serious difficulty controlling his behavior. A district court’s finding
that an individual has serious difficulty controlling behavior is deferred to when it is
supported by specific findings demonstrating the difficulty. See Interest of G.L.D.,
2011 ND 52, ¶ 7, 795 N.W.2d 346 (serious difficulty controlling behavior existed
when the individual frequently assaulted staff and peers); Matter of Wolff,
2011 ND 76, ¶ 9, 796 N.W.2d 644 (serious difficulty controlling behavior existed
when the individual yelled profanities, had an explosive temper, refused to attend
treatment, and acted sexually with a peer); Matter of M.D., 2012 ND 261, ¶ 10,
825 N.W.2d 838 (serious difficulty controlling behavior existed when individual
engaged in a sexual relationship with a peer, stated he would take advantage of a
minor if he knew he would not be caught, would use drugs if they were offered to
him, and would provide oral sex if someone came to his door and wanted it).
[¶10] Conversely, error is found when findings do not support a decision that an
individual has serious difficulty controlling behavior.       See Matter of Midgett,
2009 ND 106, ¶ 9, 766 N.W.2d 717 (error by not specifically stating the facts upon
which the district court relied or making a finding on whether petitioner had serious
difficulty in controlling his behavior); Interest of Johnson, 2016 ND 29, ¶ 6,
876 N.W.2d 25 (error in merely analyzing an individual’s criminal history, not stating
the specific facts used for reliance, and not making specific findings regarding serious
difficulty controlling behavior); Matter of J.M., 2019 ND 125, ¶ 16, 927 N.W.2d 422
(error in finding a minor rule infraction, standing alone, supported a determination of
serious difficulty controlling behavior).
[¶11] R.A.S argues the findings here are insufficient to demonstrate he has serious
difficulty controlling his behavior. The district court found “In November of 2018,
[R.A.S], without permission from his doctors, quit taking Olanzapine for two doses.
                                            4
The [c]ourt concludes that by intentionally disobeying his obligation to take
Olanzapine, this demonstrates [R.A.S.]’s inability to control his actions.” The district
court did not make any further findings supporting R.A.S.’s serious difficulty
controlling his behavior. While the district court may rely on non-sexual conduct,
“[t]he evidence must clearly show . . . a serious difficulty in controlling sexually
predatory behavior.” Interest of J.M., 2006 ND 96, ¶ 10, 713 N.W.2d 518. The
isolated instances of refusing two doses of prescribed medication do not establish a
serious difficulty controlling behavior. Therefore, the finding that R.A.S. is a sexually
dangerous individual is clearly erroneous.


                                           IV
[¶12] The district court’s order denying R.A.S.’s petition for discharge is reversed
and R.A.S shall be released from civil commitment.
[¶13] Daniel J. Crothers
      Lisa Fair McEvers
      Jon J. Jensen
      Jerod E. Tufte
      Gerald W. VandeWalle, C.J.




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