Interest of Carter , 2019 ND 67 ( 2019 )

Filed 3/13/19 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2019 ND 67
In the Interest of William Joseph Carter
State of North Dakota, Petitioner and Appellee
v.
William Joseph Carter, Respondent and Appellant
No. 20180189
Appeal from the District Court of Stutsman County, Southeast Judicial District,
the Honorable Cherie L. Clark, Judge.
AFFIRMED.
Opinion of the Court by Tufte, Justice.
Joseph K. Nwoga (argued), Assistant State’s Attorney, and Frederick R.
Fremgen (on brief), State’s Attorney, Jamestown, N.D., for petitioner and appellee.
Tyler J. Morrow, Grand Forks, N.D., for respondent and appellant.
Interest of Carter
No. 20180189
Tufte, Justice.
[¶1] William Carter appeals from a district court order denying discharge from
commitment as a sexually dangerous individual. On appeal, he argues the State failed
to establish that he is likely to reoffend or that he has serious difficulty controlling his
behavior. We affirm the district court’s order.
I
[¶2] Carter was convicted of gross sexual imposition in 2004. In 2007, the district
court ordered Carter’s commitment as a sexually dangerous individual to the
Department of Human Services. In February 2017, Carter filed motions requesting a
discharge hearing and appointment of an independent examiner. Dr. Erik Fox, the
State’s evaluator, filed a report in May and an addendum to that report in September.
Dr. Fox’s initial recommendation was for post community placement; however, the
addendum rescinded that recommendation as a result of new information Dr. Fox
received during the summer of 2017. Dr. Stacey Benson, the independent examiner,
also filed a report. The discharge hearing was held March 19, 2018. On appeal, Carter
argues the State failed to meet its burden to prove that he is likely to engage in
sexually predatory conduct and that he has difficulty controlling his behavior.
II
[¶3] This Court reviews “civil commitments of sexually dangerous individuals
under a modified clearly erroneous standard of review.” Interest of Nelson, 2017 ND
152, ¶ 3, 896 N.W.2d 923. We will affirm the district court order unless it is “induced
by an erroneous view of the law, or we are firmly convinced the order is not supported
by clear and convincing evidence.” Id. “When reviewing the district court’s order,
this Court gives ‘great deference to the court’s credibility determinations of expert
witnesses and the weight to be given their testimony.’” Matter of Kulink, 2018 ND
260, ¶ 3, 920 N.W.2d 446 (internal citations omitted). To be committed as a sexually
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dangerous individual, a person must meet three statutory elements under N.D.C.C.
§ 25-03.3-01(8):
(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 individual’s condition makes [the 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.
Nelson, at ¶ 4. “In addition to the three statutory requirements, . . . the State must also
prove the committed individual has serious difficulty controlling his behavior.” Id.
(quoting Matter of Wolff, 2011 ND 76, ¶ 7, 796 N.W.2d 644). The United States
Supreme Court did not give the phrase “lack of control” a particularly narrow or
technical meaning, nor is “inability to control behavior” demonstrable with
mathematical precision. Kulink, at ¶ 4 (quoting Kansas v. Crane, 534 U.S. 407,
412-13 (2002)). Although not mathematically precise, the proof of “inability to
control behavior . . . must be sufficient to distinguish the dangerous sexual offender
whose serious mental illness, abnormality, or disorder subjects him to civil
commitment from the dangerous but typical recidivist convicted in an ordinary
criminal case.” Crane, at 413. Thus, a “connection [must be found] between the
disorder and the individual’s inability to control” his actions. Nelson, at ¶ 4.
[¶4] The North Dakota statute “incorporates the Crane requirement in its definition
of sexually dangerous individual.” Kulink, 2018 ND 260, ¶ 5, 920 N.W.2d 446. We
interpret the definition to require “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.” Id. The State must prove each of the three elements
plus the Crane factor by clear and convincing evidence. Id. Only element three and
the Crane factor are at issue here.
III
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[¶5] This Court has “recognized the phrase ‘likely to engage in further acts of
sexually predatory conduct’ under N.D.C.C. § 25-03.3-01(8), ‘means the individual’s
propensity towards sexual violence is of such a degree as to pose a threat to others.’”
Interest of Tanner, 2017 ND 153, ¶ 6, 897 N.W.2d 901 (quoting Matter of Rubey,
2011 ND 165, ¶ 5, 801 N.W.2d 702).
[¶6] In its discussion of element three, the district court found that both Carter’s
Pedophilic Disorder and Anti-Social Personality Disorder contribute to a likelihood
to engage in sexually predatory conduct in the future. Dr. Fox and Dr. Benson
diagnosed Carter with pedophilic disorder, with the specifier “attracted to girls,
nonexclusive, but not limited to incest.” The doctors testified pedophilic disorder is
a lifelong condition that never goes into remission. Both doctors found Carter to have
antisocial tendencies, but only Dr. Benson diagnosed Carter with Anti-Social
Personality Disorder. Dr. Fox testified Carter’s antisocial personality behavior has not
changed in the last twelve years, but because he is a more conservative scorer, he did
not make the same diagnosis. Dr. Benson also found Carter meets the gender
dysphoria requirements and has a history of alcohol abuse. Dr. Fox found grievance
thinking partially present in Carter, which indicates he denies accountability to some
degree. Dr. Fox scored Carter a 22.1 on the PCL-R (the Hare Psychopathy Checklist),
placing him at the 40th percentile of prisoners. Dr. Benson scored Carter higher, at
28.2, but still within the moderate range.
[¶7] Carter’s history includes several incidents prior to this review period that
provide context for the experts’ assessment of Carter’s recent behavior. While
incarcerated in the penitentiary, Carter possessed photographic cutouts of adolescent
and prepubescent girls, some of which he cut out of a newspaper. Dr Fox testified that
Carter’s denial of using these for masturbatory stimuli was not credible. At the state
hospital in 2014, Carter masturbated to a non-pornographic photo of his roommate’s
nine-year-old niece. The girl depicted was approximately the same age as Carter’s
index offense victim. Both the incident with the cutouts and the incident with the
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photo of his roommate’s niece could have jeopardized Carter’s safety if other
prisoners had discovered them.
[¶8] Within this review period, in the summer of 2017, Carter had a 2015 school
uniforms catalog which included numerous images of prepubescent children modeling
school uniforms. The children depicted in the catalog were similar to the girl in the
photo which Carter had used as stimulus while in prison. Additionally, Carter
possessed cutouts of young adult women tucked within the catalog: one in a “sports
jersey top” and one in an “underwear or bikini top.” Carter claims he was allowed to
have the catalog.
[¶9] Dr. Fox had originally recommended community placement. Although Dr. Fox
was initially not concerned with the cutouts, the incident with the catalog, along with
other rule violations discussed below, led Dr. Fox to change his recommendation
when he wrote the addendum report. Dr. Benson also expressed concern that
possession of the catalog showed poor judgment on Carter’s part. The district court
stated that this incident in 2017 was dispositive to its decision to continue
commitment.
[¶10] There were other rule violations in July 2017, between Dr. Fox’s initial report
and addendum. Carter bought a women’s two-piece swimsuit without waiting for a
response to his request for permission to purchase it. The two pieces were different
sizes; testimony indicated Carter purchased them in a rush because he didn’t want his
State escort to find out. Also, Carter possessed more money at once than he was
allowed to have. Dr. Fox was somewhat concerned with the swimsuit purchase in
connection with the catalog possession, especially when he learned that Carter had
been in the Walmart female undergarments section two months prior to purchasing
the swimsuit. Dr. Fox believed it to be a progression from being in the wrong section
of Walmart, to purchasing the swimsuit without approval, to it being the wrong size.
Dr. Fox testified that after Carter’s extensive training, he should have been wiser than
to be in the undergarments section.
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[¶11] Dr. Benson agrees there is concern that Carter did not follow the rules and wait
for approval before buying the swimsuit. However, she did not see it as “indicative
of potential continuation of [Carter’s] pedophilic fantasies.” The catalog was of
greater concern to her than the rule violations: “even giving [Carter] the benefit of the
doubt, somebody who has been in treatment and who is advanced as far as he has, it
showed . . . very poor judgment for him to keep a magazine of that nature given the
fact that he has masturbated to images of children before and that could be a risky
situation for him.” Although she expressed concern, the summer 2017 incident did not
alter Dr. Benson’s recommendation.
[¶12] Dr. Fox testified that on the Static-99R evaluation, an assessment on risk to
reoffend, Carter achieved a score of 5. Dr. Fox noted that 85% of sex offenders score
lower, 7.4% score the same, and 7.6% score higher. This places Carter at
approximately three times the potential recidivism rate of the typical sexual offender
who has a median score of 2. There are two categories that further refine the
Static-99R: “Routine Norms” and “High Risk/Needs Norms.” To determine which
category to place Carter into, Dr. Fox used Carter’s SRA-FV score of 3.38, which
indicated he had a “high density for external risk factors” and placed Carter’s Static-
99R results in the high risk category. People who fall into this group are found to
sexually reoffend within five years at a rate of 21.2%, and within ten years at 32.1%.
Dr. Fox believes Carter is likely to reoffend because his sexual compulsivity is
present to the point of risking his opportunity to be released from civil commitment
by violating the rules while under review for release.
[¶13] Dr. Benson does not find Carter likely to reoffend, but she testified that neither
is he near the level of a non-offender. Dr. Benson found Carter to have a score of 5
on the Static-99R, placing Carter in the above-average category. On the SRA-FV, Dr.
Benson scored Carter at 3.22, a score very close to Dr. Fox’s, but did not place Carter
in the high risk category because of recent criticism that the high risk category has
been receiving. Dr. Benson found Carter to be in the group that has a 15.2% chance
to reoffend sexually within five years. Carter placed himself at a 20% chance to
5
reoffend. Although juvenile-only sex offenders typically have a lower recidivism rate
than adult offenders, Carter is not comparable to other juvenile-only sex offenders
because unlike most juvenile offenders, he has Pedophilic Disorder. Dr. Benson
agreed most juvenile sex offenders do not have a paraphilia disorder. The district
court was persuaded by Dr. Fox’s testimony and reasoning in using the high risk
category. It found Carter had a likelihood to engage in further acts of sexually
predatory conduct. We conclude there was clear and convincing evidence supporting
the district court’s finding that Carter has a likelihood to engage in further acts of
sexually predatory conduct.
IV
[¶14] To satisfy the Crane factor, the “individual must be shown to have serious
difficulty controlling his behavior.” In re Hehn, 2008 ND 36, ¶ 19, 745 N.W.2d 631.
However, the evidence or conduct showing the “individual’s serious difficulty in
controlling his behavior” need not be of a sexual nature. Wolff, 2011 ND 76, ¶ 7, 796
N.W.2d 644.
[¶15] The district court found the incident with the school uniforms catalog
“particularly concerning” and noted that this evidences a pattern of behavior because
Carter has done similar things previously, showing he has a “serious difficulty in
controlling his behavior and managing his compulsions.” The court further noted the
fact that Carter was willing to jeopardize his release by collecting and possessing the
images strongly suggests a lack of control over compulsions at the current time. The
district court ultimately found Carter has “not demonstrated that he would be able or
willing to control his behavior if he were to be released from the commitment.” Dr.
Fox felt all the components of the summer 2017 incident were cause for concern
regarding Carter’s ability to control himself. He noted Carter engaged in risky
behavior while on the “verge of being in the community.” The buying of the swimsuit
indicated to Dr. Fox there was “thought and planning and recognition of the
inappropriateness of the behavior . . . [meaning] he wasn’t controlling his behavior,
and [Carter] was [a] higher risk than . . . [Dr. Fox] initially thought,” and therefore not
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ready for community placement. Dr. Benson found it concerning that Carter requested
permission to purchase the swimsuit, yet he “didn’t wait.” This was a rule violation
but also a demonstration of Carter’s lack of control. The court noted the purchase of
the swimsuit was not necessarily sexual, but it does show a lack of impulse control.
We conclude the record contains clear and convincing evidence supporting the district
court’s finding that Carter has serious difficulty in controlling his behavior.
V
[¶16] There is clear and convincing evidence that the three statutory elements and
the Crane factor were satisfied. We affirm the district court’s order denying
discharge.
[¶17] Jerod E. Tufte
Daniel J. Crothers
Lisa Fair McEvers
Jon J. Jensen
Gerald W. VandeWalle, C.J.
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