            Filed October 29, 2019 by Clerk of Supreme Court


                     IN THE SUPREME COURT
                     STATE OF NORTH DAKOTA

                               2019 ND 263

In the Matter of Lawrence Didier


Frederick Fremgen,
Stutsman County State’s Attorney,                    Petitioner and Appellee
     v.
Lawrence Didier,                                  Respondent and Appellant



                               No. 20190015

Appeal from the District Court of Stutsman County, Southeast Judicial
District, the Honorable Cherie LaVonne Clark, Judge.

AFFIRMED

Opinion of the Court by McEvers, Justice.

Lilie A. Schoenack, Assistant State’s Attorney, Jamestown, ND, for petitioner
and appellee.

Tyler J. Morrow, Grand Forks, ND, for respondent and appellant.
                             Matter of Didier
                              No. 20190015


McEvers, Justice.

[¶1] Lawrence Didier appeals from an order denying his petition for
discharge from civil commitment as a sexually dangerous individual. On
appeal, Didier argues the district court’s factual basis was insufficient to
legally conclude he met the substantive due process requirement of the
inability to control his behavior. Didier also argues he did not receive a fair
hearing that comports with procedural due process. We affirm.

                                       I

[¶2] Didier has previously been convicted of two counts of sexual assault,
one count of gross sexual imposition, and one count of indecent exposure
occurring in 1988, 1998, and 2008. After these convictions, in May 2010,
the State petitioned the district court to commit Didier as a sexually
dangerous individual. In November 2010, the court ordered Didier’s
commitment pursuant to N.D.C.C. ch. 25-03.3. Didier applied for discharge
in April 2018. On January 9, 2019, the court held a hearing on his
application. Dr. Deirdre D’Orazio, a doctor of clinical and forensic
psychology, completed an annual re-evaluation of Didier. On January 15,
2019, the court issued an order denying Didier’s application.

                                      II

[¶3] “This Court reviews civil commitments of sexually dangerous
individuals under a ‘modified clearly erroneous’ standard of review.” In
Interest of Voisine, 2018 ND 181, ¶ 5, 915 N.W.2d 647. “We will affirm a
trial court’s order denying a petition for discharge unless it is induced by an
erroneous view of the law or we are firmly convinced it is not supported by
clear and convincing evidence. We give great deference to the court’s
credibility determinations of expert witnesses and the weight to be given
their testimony.” In the Interest of Tanner, 2017 ND 153, ¶ 4, 897 N.W.2d
901 (citation omitted). We have explained that the district court is “the best


                                      1
credibility evaluator in cases of conflicting testimony and we will not
second-guess the court’s credibility determinations.” In re Wolff, 2011 ND
76, ¶ 5, 796 N.W.2d 644.

[¶4] At a discharge hearing, the State bears the burden of proof to show
by clear and convincing evidence the committed individual remains a
sexually dangerous individual. N.D.C.C. § 25-03.3-18(4).

      Under N.D.C.C. § 25-03.3-01(8), the State must prove three
      elements:

      (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; and (3) the disorder makes the
      individual likely to engage in further acts of sexually predatory
      conduct.

Voisine, 2018 ND 181, ¶ 6, 915 N.W.2d 647 (citing Tanner, 2017 ND 153, ¶
4, 897 N.W.2d 901). Additionally, to comport with the statute’s language
and constitutional substantive due process concerns this Court has stated:

      We therefore construe “sexually dangerous individual” as
      meaning “proof of a nexus between the requisite disorder and
      dangerousness encompasses 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.”


Voisine, at ¶ 6 (quoting Wolff, 2011 ND 76, ¶ 7, 796 N.W.2d 644). See also
Kansas v. Crane, 534 U.S. 407, 411-413 (2002). The court may consider
sexual and nonsexual 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 that the individual is likely to engage in further sexually predatory
conduct. Matter of R.A.S., 2019 ND 169, ¶ 7, 930 N.W.2d at 162.
Specifically, we defer to a district court’s determination an individual has

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serious difficulty controlling behavior when “it is supported by specific
findings demonstrating the difficulty.” In re Johnson, 2016 ND 29, ¶ 5, 876
N.W.2d 25.

                                      III

[¶5] Didier stipulated to elements one and two in the district court. Even
though these elements were stipulated, the court found clear and convincing
evidence Didier had previously engaged in sexually predatory conduct. He
had been convicted of sexual assault in 1988, gross sexual imposition in
1998, indecent exposure in 2008, and sexual assault in 2008. As to the
second element, the court found clear and convincing evidence Didier had a
diagnosis of a congenital or acquired condition that is manifested by a
sexual disorder. Dr. D’Orazio diagnosed Didier with several disorders,
including    pedophilic    disorder,   antisocial   personality     disorder,
polymorphous sexual compulsivity, intellectual disability, and severe
alcohol use disorder, which she included in her report and testified to at the
hearing.

[¶6] Didier does not contend that the State failed to meet its burden on the
third statutory element that he is likely to engage in further acts of
predatory conduct. Relying on Dr. D’Orazio’s report and testimony, the
district court found by clear and convincing evidence that the State had met
its burden.

[¶7] On appeal, Didier argues there are not sufficient facts to conclude he
remains a sexually dangerous individual. Primarily, Didier argues there
were insufficient facts to conclude he continues to have an inability to
control his behaviors, as “the entirety of the evidence resides in past conduct
or conduct that neither the state itself nor the state’s expert witness offered
as a factual basis.” A court’s determination an individual has serious
difficulty controlling behavior is deferred to when “it is supported by specific
findings demonstrating the difficulty.” Johnson, 2016 ND 29, ¶ 5, 876
N.W.2d 25. The State argues specific findings demonstrating difficulty does
not require specific instances of affirmative acts of misconduct and adopting



                                       3
Didier’s argument would require affirmative acts of misconduct each review
period.

[¶8] Evidence in the record supports the district court’s finding clear and
convincing evidence exists that the respondent will have serious difficulty
controlling his behavior. “To determine whether an individual has serious
difficulty in controlling behavior, all relevant conduct may be considered.”
In re J.T.N., 2011 ND 231, ¶ 13, 807 N.W.2d 570. “[C]onduct in proximity
to the hearing is relevant, the past still has some relevance.” Voisine, 2018
ND 181, ¶ 18, 915 N.W.2d 647. The court’s findings relied on Dr. D’Orazio’s
report which mentioned several of Didier’s past offenses that occurred prior
to the review period. In 2008, Didier was convicted for indecent exposure
and sexual assault. In 2010, he was interviewed for allegedly committing
sexual assault on a cognitively impaired woman. The same year, he
approached young children in Walmart, and pestered female greeters and
he twice attended a circus against explicit prohibition from his probation
officer. The court additionally relied on Dr. D’Orazio’s opinion which
specifically noted Didier “will have serious difficulty controlling his sexual
behavior if he is discharged from the hospital at this time.”

[¶9] The district court found Didier’s inability to control his behavior
persists. The court noted while Didier did not have any formal write-ups in
the current review period, his inappropriate behavior evidences his inability
to control his behavior, including his inability to take responsibility for his
actions, creating excuses, lack of motivation for completion, and lack of
ability to effectively participate in treatment. The court cited numerous
examples showing Didier’s inability to control his behavior. Didier gets
angry and leaves the day room, pouts and slams doors when things do not
go his way. Didier failed to complete homework assignments, gave
superficial answers to questions, copied answers from others, and strayed
off topic. Didier remained uncommitted to his relapse plan, writing down
answers regardless of whether they fit. He is stagnant in progress toward
treatment goals. His therapist believed this was due to his lack of
motivation. On one occasion, in the current review cycle, Didier traded
notebooks with a peer, receiving a verbal warning that such conduct was

                                      4
against the rules. When confronted about inappropriate behavior or
possible rule violations, he refused to accept responsibility. Like Voisine,
review of the record reflects “more than just lack of progress, it showed a
lack of participation.” 2018 ND 181, ¶ 21, 915 N.W.2d 647. Taken together,
both Didier’s past and present conduct, the court’s finding Didier has
serious difficulty controlling his behavior is not clearly erroneous and is
supported by clear and convincing evidence.

                                      IV

[¶10] Didier contends his hearing did not comport with procedural due
process, as it failed to give him reasonable notice of claims of the opposing
party and an opportunity to rebut the claims. “Procedural due process
requires fundamental fairness, which, at a minimum, necessitates notice
and a meaningful opportunity for a hearing appropriate to the nature of the
case.” In re G.R.H., 2006 ND 56, ¶ 24, 711 N.W.2d 587 (citation omitted).

[¶11] Didier did not raise this issue in the district court. “When a party
fails to raise an issue before the district court, even a constitutional issue,
we generally will not address the issue on appeal.” In re R.A.S., 2008 ND
185, ¶ 12, 756 N.W.2d 771 (citation omitted). Didier’s argument was not
sufficiently developed in the court or supported on appeal for this Court to
determine its merits. Therefore, we decline to address Didier’s procedural
due process argument.

                                      V

[¶12] The district court’s order is affirmed.

[¶13] Lisa Fair McEvers
      Daniel J. Crothers
      Jerod E. Tufte
      Jon J. Jensen
      Gerald W. VandeWalle, C.J.




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