               Filed 12/18/19 by Clerk of Supreme Court

                      IN THE SUPREME COURT
                      STATE OF N OR TH DAK OT A


                                2019 ND 302


In the Interest of Raymond Voisine,



Ladd R. Erickson, State’s Attorney,                   Petitioner and Appellee

      v.

Raymond J. Voisine,                                 Respondent and Appellant




                                No. 20190155


Appeal from the District Court of Sheridan County, South Central Judicial
District, the Honorable Bruce A. Romanick, Judge.

REVERSED.

Opinion of the Court by Crothers, Justice.

Ladd Erickson, State’s Attorney, Washburn, ND, for petitioner and appellee.

Tyler Morrow, Grand Forks, ND, for respondent and appellant.
                              Interest of Voisine
                                  No. 20190155

Crothers, Justice.

[¶1] Raymond Voisine appeals from a district court order finding he remains
a sexually dangerous individual. He argues the district court erred by (1)
granting the State’s request for continuance, (2) not holding a hearing within
365 days of the previous report or within a calendar year, (3) allowing the State
to file and rely on an expert’s report that was filed late, and (4) finding by clear
and convincing evidence that Voisine remains a sexually dangerous individual.
The dispositive issue is whether clear and convincing evidence exists
establishing Voisine remains a sexually dangerous individual. We reverse.

                                         I

[¶2] “In 2004, Voisine was incarcerated after he pled guilty to gross sexual
imposition for acts involving a six-year-old victim.” Interest of Voisine, 2018 ND
181, ¶ 2, 915 N.W.2d 647. In Voisine, at ¶¶ 2-4, this Court discussed the
underlying facts leading to his incarceration and subsequent commitment as a
sexually dangerous individual:
            “Voisine [was, at that time,] a 65-year-old male with four
      adult children, R.V., P.P., H.M. and L.K. In 2003, an officer with
      the North Dakota Bureau of Criminal Investigation executed a
      search warrant on Voisine’s home for an unrelated firearms
      charge. During the search, the officer found sexually explicit
      photographs under the pillow on Voisine’s bed. The photographs
      pictured H.M., one of Voisine’s three adult daughters. DNA
      analysis was performed and established with over 99.99 percent
      certainty that Voisine fathered two children with H.M.




                                         1
      “In light of Voisine’s incestuous relations, interviews were
conducted with his acquaintances. Voisine’s grandson reported
that when he was 6 or 7 years old, he was forced to stroke Voisine’s
penis for 5 to 10 minutes. The ex-husband of H.M. reported that
Voisine threatened him with a firearm and fathered a child with
P.P., Voisine’s adult daughter. Voisine’s ex-wife reported that
Voisine beat and threatened her while they were married. The
current boyfriend of Voisine’s ex-wife reported that Voisine’s
children were sexually abused when they were minors. Voisine’s
daughter, L.K., reported that she was born to a 17-year-old mother
who was impregnated by a 34-year-old Voisine. L.K. also reported
that Voisine physically abused her when she was young and that
she once walked in on Voisine unzipping his pants behind a naked
and bent-over H.M. L.K. later denied stating H.M. was naked.

       “Following the investigation, Voisine was charged with gross
sexual imposition for sexual contact with his 6- or 7-year-old
grandson and with promoting obscenity to a minor for allegedly
showing pornography to a second, 9- or 10-year-old grandson who
was also Voisine’s son. Voisine pled guilty to gross sexual
imposition, and the promotion of obscenity charge was dismissed.
He was incarcerated, and upon his release in 2008, the State
petitioned to commit him as a sexually dangerous individual. The
State alleged that in addition to the sexual contact underlying
Voisine’s gross sexual imposition conviction, that Voisine sired
three children with two of his daughters, that Voisine sexually
abused his daughters as minors, that Voisine conceived a child
with a 16-year-old girl in Maine and that Voisine promoted
obscenity to a minor by showing pornography to his 9- or 10-year-
old grandson/son.

      “After he was released from custody, the district court
revoked his probation for failing to complete sex offender
treatment while incarcerated. In a post-conviction proceeding, his
probation revocation was reversed. Voisine v. State, 2008 ND 91,
¶ 17, 748 N.W.2d 429. The State petitioned to commit Voisine for
treatment as a sexually dangerous individual, which the district
court subsequently granted. This Court reversed and remanded
the case for further proceedings in Voisine, 2010 ND 17, ¶ 15, 777
N.W.2d 908, and after further proceedings summarily affirmed an
order committing Voisine for treatment. Interest of Voisine, 2010
ND 241, ¶ 1, 795 N.W.2d 38.”

                                 2
[¶3] The district court denied his subsequent petitions for discharge from
commitment, which were affirmed on appeal. See Interest of Voisine, 2018 ND
181, ¶ 1, 915 N.W.2d 647; Interest of Voisine, 2016 ND 254, ¶ 24, 888 N.W.2d
781; Interest of Voisine, 2014 ND 178, ¶ 2, 859 N.W.2d 930; Interest of Voisine,
2012 ND 250, ¶ 1, 823 N.W.2d 786. This Court also affirmed a district court
order denying post-conviction relief. Voisine v. State, 2014 ND 98, ¶ 2, 859
N.W.2d 930.

[¶4] On October 9, 2018, Voisine requested a discharge hearing. On October
17, 2018, the hearing was scheduled for February 1, 2019. On January 30,
2019, the State requested a continuance. Voisine objected to the continuance.
On January 31, 2019, the district court continued the hearing until March 25,
2019. After the hearing, the district court found Voisine remained a sexually
dangerous individual. Voisine appeals.

                                       II

[¶5] This Court reviews civil commitments of sexually dangerous individuals
under a modified clearly erroneous standard, and the district court’s decision
will be affirmed 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. Matter of R.A.S., 2019 ND 169, ¶ 5, 930 N.W.2d 162 (citing Interest
of Tanner, 2017 ND 153, ¶ 4, 897 N.W.2d 901). Great deference is given to the
district court’s credibility determinations of expert witnesses and the weight
given to their testimony. Voisine, 2018 ND 181, ¶ 5, 915 N.W.2d 647 (citing
Tanner, at ¶ 4; Matter of Wolff, 2011 ND 76, ¶ 5, 796 N.W.2d 644).

[¶6]   “At a discharge hearing, the State must prove by clear and convincing
evidence that the committed individual remains a ‘sexually dangerous


                                       3
individual’ under N.D.C.C. § 25-03.3-18(4).” Voisine, 2018 ND 181, ¶ 6, 915
N.W.2d 647 (citing Matter of Hehn, 2015 ND 218, ¶ 5, 868 N.W.2d 551). 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, at ¶ 6 (citing Tanner, 2017 ND 153, ¶ 4, 897 N.W.2d 901). “Further,
‘the United States Supreme Court held that in order to satisfy substantive due
process requirements, the individual must be shown to have serious difficulty
controlling his behavior.’” Voisine, at ¶ 6 (citing Matter of Hehn, 2008 ND 36,
¶ 19, 745 N.W.2d 631); Kansas v. Crane, 534 U.S. 407, 413 (2002). “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 (citing Wolff, 2011 ND 76, ¶ 7, 796 N.W.2d 644 (quoting
Interest of J.M., 2006 ND 96, ¶ 10, 713 N.W.2d 518)).

                                       III

[¶7] Voisine challenges the court’s findings on statutory prongs two and
three, and the “serious difficulty” factor required under Kansas v. Crane, 534
U.S. at 413.

[¶8] “This Court ‘defer[s] to a district court’s determination that an individual
has serious difficulty controlling behavior when it is supported by specific


                                       4
findings demonstrating the difficulty.’” Matter of J.M., 2019 ND 125, ¶ 14, 927
N.W.2d 422 (citing In re Johnson, 2016 ND 29, ¶ 5, 876 N.W.2d 25). Here, the
finding that Voisine remains a sexually dangerous individual was not
supported by clear and convincing evidence.

[¶9] The State bears the burden of showing by clear and convincing evidence
the risk posed by Voisine is distinguishable “from the dangerous but typical
recidivist in the ordinary criminal case.” J.M., 2019 ND 125, ¶ 14, 927 N.W.2d
422 (citing Wolff, 2011 ND 76, ¶ 7, 796 N.W.2d 644). Notably, the burden is not
whether an individual remains the same as previous reviews. Regarding the
Crane factor, “[w]hile the court may rely on actions that are non-sexual in
nature, ‘[t]he evidence must clearly show . . . a serious difficulty in controlling
sexually predatory behavior.’” J.M., at ¶ 16 (citing In the Interest of J.M., 2006
ND 96, ¶ 10, 713 N.W.2d 518). “Lack of progress in treatment alone is
insufficient to meet this requirement for commitment.” Voisine, 2018 ND 181,
¶ 21, 915 N.W.2d 647 (McEvers, J., concurring specially, VandeWalle, C.J.,
joined) (citing Johnson, 2016 ND 29, ¶ 7, 876 N.W.2d 25 (emphasis in
original)).

[¶10] Two witnesses testified at the discharge hearing. Dr. Benson, Voisine’s
Independent Examiner, testified Voisine did not meet the second or third
prongs, or the serious difficulty factor, and therefore Voisine was not a sexually
dangerous individual. Dr. Byrne concluded Voisine met the second, third and
serious difficulty factor, and remains a sexually dangerous individual.

[¶11] The district court largely relied on Dr. Byrne’s testimony and report.
Regarding the Crane factor, the district court found “Voisine has not made any
progress in his treatment and that he has not demonstrated that he would be
able or willing to control his behavior if he were to be released into the


                                        5
community.” The court’s “serious difficulty” conclusion also was based on
evidence Voisine has poor peer relations, refuses to admit to his offenses, has
a lack of concern for his family members, desires to return to a home where
predatory conduct occurred and to a family which enabled his predatory
conduct, and he has not worked on plans for behavior modification which would
give him the ability to control his behavior. The district court also stated, “[t]his
Court does not believe that Voisine’s participation in treatment has been
meaningful or substantial. His progress notes indicate that he does not
participate in any respect.” The district court noted, “Dr. Byrne is of the opinion
that Voisine demonstrates serious difficulty controlling his behavior and this
would likely be worse in a less restrictive environment.”

[¶12] Voisine argues the district court’s finding are clearly erroneous. After
fully reviewing the record, we agree. Dr. Byrne was asked, “[w]hat behavior,
during this review period, are you pointing to that shows Raymond Voisine
can’t control his behavior?” Dr. Byrne responded:
            “The main issue that I see is his—he is not getting BAs
      [Behavioral Acknowledgments] or RBWs [Resident Behavioral
      Write-ups] as we discussed earlier. There is the concern associated
      with the denial of the offending that is not necessarily scientific
      but more pragmatic and related to treatment—related treatment
      progress and adherence to treatment progress.
            “And then the final thing is, you know, if there—I think I
      inferred from your—your questions, at least that’s what I inferred,
      the medical conditions and/or his age and ability to attend to group
      because it appears that he’s falling asleep and/or putting his hand
      over his head and it’s not that he’s not making progress, it’s that
      he’s not participating in the course of treatment.
            “Those things indicate that because he has a congenital-
      acquired condition he’s going to have a serious difficulty
      controlling his behavior because he is not acquiring skills to
      manage those—those past problems and also his sexual risk.”




                                         6
[¶13] Voisine’s apparent lack of progress and participation in treatment was a
significant basis for finding he still was a sexually dangerous individual. The
record shows the finding that “he does not participate in any respect” is not
supported. The progress notes in Dr. Byrne’s report state Voisine presented on
multiple occasions, he was taking a more active role in his treatment and
progressing. There also were periods where Voisine was stable but stagnant.
Voisine still appeared to fall asleep in group, but on days when he was noted
to appear sleeping he also presented and gave feedback to other residents.
Further, Dr. Byrne testified, “it’s not that he’s not making progress.”

[¶14] Taken as a whole, the evidence does not support the finding Voisine has
not worked on plans for behavior modification which would give him the ability
to control his behavior. Regarding RBWs, Dr. Byrne testified “[m]y
understanding was the only thing was issues of old food found in his room, that
type of a thing, but nothing significant like in prior review periods.” (Emphasis
added.) In his report Dr. Byrne noted,
      “Mr. Voisine has not demonstrated any significant overt
      behavioral problems on the unit throughout this review period.
      Perhaps the most appropriate factor to consider when assessing
      ‘serious difficulty’ in a residential treatment setting is the
      individual’s progress in treatment over the review period. This
      best answers the question of ‘what has changed’ since they were
      committed or since their last annual review. . . . Mr. Voisine has
      made little progress within treatment. . . Mr. Voisine continues to
      demonstrate ‘serious difficulty’ controlling his behavior and this
      would likely be worse in a less restrictive environment.”

[¶15] Voisine has two years in highly supervised conditions with only minor
behavioral write-ups. In July 2018, Voisine received write-ups because staff
found “excessive garbage, food from the food cart, dirty containers, gallon jug
with water, pop bottle with soap and water, 2 state rags.” Dr. Byrne and Dr.
Benson noted this is improved behavior from previous reviews.

                                         7
[¶16] The record shows Voisine participated in treatment and he is not a
management problem. Instances of having extra food in Voisine’s room do not
establish a serious difficulty controlling behavior. See In the Matter of R.A.S.,
2019 ND 169, ¶ 11, 930 N.W.2d 162 (“The isolated instances of refusing two
doses of prescribed medication do not establish a serious difficulty controlling
behavior.”); J.M., 2019 ND 125, ¶¶ 15-16, 927 N.W.2d 422 (horseplay incident
with another resident not clear and convincing evidence of serious difficulty);
Interest of T.A.G., 2019 ND 167, ¶ 11, 930 N.W.2d 166 (“The status in
treatment and one statement regarding ‘cream pie’ do not establish a serious
difficulty controlling behavior sufficient to satisfy the Crane due process
requirement.”).

[¶17] Appearing to fall asleep or putting one’s hand over their head during
treatment could be evidence supporting a finding that an individual has
serious difficulty controlling his behavior. However, that isolated conduct over
a year is not sufficient to establish serious difficulty controlling sexual
behavior. Moreover, Voisine is a 76-year-old man with a heart condition, he is
on medication for that heart condition, English is not his first language, and
on some of the days he appeared to be sleeping in group the treatment notes
also establish Voisine was participating. The lack of behavioral write-ups,
progress in treatment, and the lack of evidence about how Voisine remains a
threat runs counter to finding by clear and convincing evidence that Voisine
has serious difficulty in controlling his sexual behavior.

[¶18] Voisine argues the finding he will not have the ability to control his
behavior because he denies sexual misconduct occurred is not supported by
evidence. Dr. Byrne testified he analyzed both static (actuarial test scores) and
dynamic factors. See R.A.S., 2019 ND 169, ¶ 8, 930 N.W.2d 162 (the district
court found clear and convincing evidence of the third prong based on actuarial

                                        8
test scores and dynamic risk factors). In response to the question, “because
you’re saying denial doesn’t increase risk, correct?” Dr. Byrne testified, “as a
static factor, no.” Dr. Byrne testified, “And review of the risk literature does
not indicate in a static sense that denial of offending is actually a risk factor
which is somewhat counterintuitive, but when we start looking at risk in terms
of dynamic risk factors, it can become problematic.” Further, Dr. Byrne
testified that an individual could “deal with things and still deny, such as
accepting accountability for their risk or their perceived risk and working on
it.” On cross-examination Dr. Byrne testified, “my knowledge of literature
would still be that denial of offending in terms of a static risk factor would not
necessarily impact an individual’s sexual risk level.” Dr. Byrne testified that
denial is problematic in trying to make progress because if an individual denies
committing an offense it would be difficult, but not impossible, to create a risk
plan for preventing an offense. He also testified because he does not see Voisine
attempting to engage in treatment, Voisine is unable to make progress. When
specifically asked about the Crane factor, Dr. Byrne testified, “There is the
concern with the denial of the offending that is not necessarily scientific but
more pragmatic and related to treatment—related treatment progress and
adherence to treatment progress.”

[¶19] Dr. Byrne also testified about the dynamic factors relating to Voisine’s
denial. The notes state, “Mr. Voisine denies any history of sexually offending
and thus while he states he cares for his family/victims, he continues to
negatively impact them via his denial.” Further, Dr. Byrne’s note states, “[h]e
simply maintained denial of offending in this instance” and “Mr. Voisine
continues to deny his offenses and also his need to be in civil commitment, thus
holding others, rather than himself, accountable. Such a viewpoint is
consistent with his loneliness and associated with negative mood states.” Dr.


                                        9
Byrne also noted, “denial of his conviction make his self-report not credible,”
and “Mr. Voisine’s history is with a male grandchild and incestuous
relationship with daughters which he denies and thus has not demonstrated
any improvement on these [deviant sexual preference factor].” Finally, Dr.
Byrne notes,
      “[h]is behavior/conduct on the unit appears to have improved, but
      his engagement, participation, and addressing of his treatment
      needs is still similar to that in past reviews, with his denying
      offending, falling asleep, not presenting when scheduled in group.
      Thus, he is not gaining the sexually risk reducing skills and
      interventions to reduce and adaptively manage his sexually risk.”

[¶20] Dr. Byrne’s dynamic factor notes on denial are not connected to Voisine’s
ability to control his behavior. They are connected to potential negative
impacts on family members, loneliness and negative mood states, and
credibility. The last note which indicates some connection relies on the claim
Voisine is not participating in treatment. As noted, Dr. Byrne testified Voisine
made progress in treatment, the record supports that Voisine participated in
treatment and was progressing. Nonetheless, lack of progress in treatment
alone is insufficient to meet this requirement for commitment. Voisine, 2018
ND 181, ¶ 21, 915 N.W.2d 647 (McEvers, J., concurring specially, VandeWalle,
C.J., joined) (citing Johnson, 2016 ND 29, ¶ 7, 876 N.W.2d 25 (emphasis in
original)).

[¶21] In 2018 we affirmed an order that Voisine remained a sexually
dangerous individual based on findings that Justice McEvers in her
concurrence described as “thin.” Voisine, 2018 ND 181, ¶¶ 19, 21, 915 N.W.2d
647. Those findings were based on a lack of progress and participation in
treatment, not attending group, and falling asleep during group. In this review
period the record does not support the conclusion that Voisine was not
progressing or participating in treatment. Voisine attended group regularly,

                                      10
and when he was absent there was a legitimate reason like being ill. Evidence
that a 76-year-old man whose first language is not English, is on medication
for his heart condition, and sometimes appears asleep in group alone is
insufficient to meet the requirement for commitment.

[¶22] The record as a whole does not support the finding by clear and
convincing evidence that Voisine remains a sexually dangerous individual.
Limited rule infractions and sporadic progress and participation in treatment
relied on in this case do not establish that the risk posed by Voisine is
distinguishable “from the dangerous but typical recidivist in the ordinary
criminal case.” See R.A.S., 2019 ND 169, ¶ 11, 930 N.W.2d 162; J.M., 2019 ND
125, ¶¶ 15-16, 927 N.W.2d 422; T.A.G., 2019 ND 167, ¶ 11, 930 N.W.2d 166.

[¶23] The remaining issues and arguments raised by the parties have been
considered and are unnecessary to our decision or without merit.

                                      IV

[¶24] The order denying Voisine’s petition for discharge is reversed.

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




                                      11
