Interest of Sternberg , 2023 ND 40 ( 2023 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
MARCH 3, 2023
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2023 ND 40In the Interest of Brian K. Sternberg
Renata J. O. Selzer, Assistant State’s Attorney, Petitioner and Appellee
v.
Brian K. Sternberg, Respondent and Appellant
No. 20220147
Appeal from the District Court of Cass County, East Central Judicial District,
the Honorable Susan L. Bailey, Judge.
REVERSED.
Opinion of the Court by Tufte, Justice.
Renata J. Olafson Selzer, Assistant State’s Attorney, Fargo, N.D., petitioner
and appellee.
James D. Sandsmark, Fargo, N.D., for respondent and appellant; submitted on
brief.
Interest of Sternberg
No. 20220147
Tufte, Justice.
[¶1] Brian Sternberg appeals from a district court order civilly committing
him as a sexually dangerous individual. We reverse the order of the district
court.
I
[¶2] In 1992, Sternberg was convicted of corruption of a minor. He was
incarcerated in late 1993 and remained on probation until January 1994. In
2000, the State charged Sternberg with committing three or more sexual acts
with a child who was then his stepdaughter and under the age of fifteen. He
showed pornographic films to her and cut her leg by throwing a pair of scissors
at her. He also allowed two other males to sexually abuse her. Sternberg forced
a five-year-old boy, who was also in a parental or guardian relationship with
Sternberg, to eat his own feces, and on another occasion beat him with a belt.
Both incidents caused physical and mental injury. Sternberg was charged with
one class A felony and five class C felonies. He also has convictions involving
deceitful behavior, including financial fraud and bad checks. The court
sentenced him to incarceration from October 2000 to February 2021.
[¶3] Peter Byrne, Ph.D., a licensed psychologist who conducted Sternberg’s
evaluation, testified that there was no record of Sternberg’s having undergone
treatment to deal with his “sexual interest or arousal to children” and reported
that at the end of treatment it was recommended Sternberg continue sexual
offender specific treatment. Sternberg has both pedophilic and antisocial
personality disorders, which predispose him to intense sexual fantasies and
urges and to disregard “the rights and wishes of others.”
[¶4] Dr. Byrne found that Sternberg scored a 5-6 on the Static 99R, an “above
average” or “well above average” risk to sexually reoffend, meaning he is 3.77
times more likely to reoffend than the average sexual offender. Individuals
with this score have a 14.2 percent recidivism rate. Sternberg had a dynamic
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sexual risk measure of 6, which is a moderate risk of re-offense, and when
considered together with the Static 99R, Sternberg is twice as likely to reoffend
as the average sexual offender. Dr. Byrne concluded Sternberg is a “high risk”
and is either likely to engage in further sexual abuse or is on the border of this
criteria. Dr. Byrne also opined that Sternberg’s coping strategies are
insufficient given his condition, that he requires more treatment, and that he
is still a “Sexually Dangerous Individual.”
[¶5] Sternberg has not had any major non-sexual conduct violations in prison
since 2019, nor has he had any sexual write-ups since 2015. According to his
sexually dangerous individual evaluation, Sternberg’s age, involvement in
sexual offender treatment, and mental health treatment allow him to better
cope with his antisocial personality disorder.
[¶6] The district court held a commitment hearing and granted the State’s
petition for civil commitment. The court reported that its biggest concern with
releasing Sternberg is that he has been living in a supervised environment
while incarcerated and “[i]mmediate release into the community without
support or supervision would ‘very likely result in a serious difficulty
controlling his behaviors.’” On appeal, Sternberg argues the district court erred
in finding the State had met its burden in proving that he is likely to engage
in further acts of sexually predatory conduct and that he has serious difficulty
in controlling behavior.
II
[¶7] This Court reviews civil commitments of sexually dangerous individuals
under a modified clearly erroneous standard. Matter of Knoke, 2021 ND 240,
¶ 13, 968 N.W.2d 178 (citing In re Nelson, 2017 ND 28, ¶ 7, 889 N.W.2d 879).
We will affirm a 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.” Id. “The court must specifically state the facts upon
which its ultimate conclusion is based.” In re Rubey, 2012 ND 133, ¶ 9, 818
N.W.2d 731; see also N.D.R.Civ.P. 52(a).
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III
A
[¶8] Sternberg argues the district court erred in finding that he has serious
difficulty in controlling his behavior. We agree. In addition to the statutory
requirements, substantive due process requires the district court to construe
“sexually dangerous individual” as meaning “proof of a nexus between the
requisite disorder and dangerousness encompasses proof that the disorder
involves serous difficulty in controlling behavior.” Matter of Muscha, 2021 ND
164, ¶ 5, 964 N.W.2d 507 (quotations omitted); see also Kansas v. Crane, 534
U.S. 407, 412 (2002). The State must meet this burden with clear and
convincing evidence. Interest of Nelson, 2017 ND 152, ¶¶ 4, 5, 896 N.W.2d 923(citing In re Johnson, 2016 ND 29, ¶ 4, 876 N.W.2d 25). This required proof
separates a “dangerous sexual offender,” whom the court may subject to civil
commitment, from “the dangerous but typical recidivist in the ordinary
criminal case.” Muscha, at ¶ 5 (citing Matter of Didier, 2019 ND 263, ¶ 4, 934
N.W.2d 417); see also Crane, at 411-413.
[¶9] “[T]he Constitution’s safeguards of human liberty in the area of mental
illness and the law are not always best enforced through precise bright-line
rules.” Crane, 534 U.S. at 413. Such determinations are not demonstrable with
“mathematical precision.” Id. “There must be a causal connection between the
disorder and inability to control behavior, which would likely result in future
sexually predatory conduct.” Muscha, 2021 ND 164, ¶ 5 (citing Matter of
R.A.S., 2019 ND 169, ¶ 7, 930 N.W.2d 162); see also Interest of Skorick, 2022
ND 141, ¶ 5, 977 N.W.2d 697. “The word ‘difficult’ indicates that the lack of
control … was not absolute.” Crane, at 411. “[A]n absolutist approach is
unworkable” because it “would risk barring the civil commitment of highly
dangerous persons suffering severe mental abnormalities.” Id. at 411-12.
B
[¶10] It is insufficient for a district court to rely solely on prognostic factors
unsupported by contemporary evidence or specific instances of conduct to
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demonstrate that a person has a serious difficulty controlling behavior. Interest
of T.A.G., 2019 ND 115, ¶¶ 9-10, 926 N.W.2d 702. This Court reversed a district
court when the court found that an individual had serious difficulty controlling
behavior on the basis of an expert’s opinion that the individual had serious
difficulty, the fact that the individual had not completed all levels of treatment,
and behavioral write-ups that did not share a nexus with a sexual disorder.
T.A.G., at ¶¶ 6-8. There, this Court wrote, “the findings for element three and
the Crane requirement are not sufficient for this Court to understand the basis
of the district court’s order.” Id. at ¶ 8.
[¶11] We have concluded a trial court errs when it grants a civil commitment
on the basis that an individual has not sufficiently progressed in treatment. In
re Johnson, 2016 ND 29, ¶ 11, 876 N.W.2d 25. “[C]ontinuing commitment solely
on the basis of inadequate participation in treatment, without an explanation
of how the person committed meets the statutory and constitutional
requirements, reverses the burden from the State to the committed
individual.” Id.[¶12] In Interest of Nelson, this Court reversed a district court finding that an
individual had serious difficulty in controlling behavior. 2017 ND 152, ¶¶ 7-10.
The district court based its determination on unlawful sexual conduct that had
occurred twenty-three years before the commitment hearing, and it did not
mention any examples of “impulsivity, deceitfulness, aggression, or other
concerning behavior, outside of Nelson’s criminal convictions from 2009 and
1992.” Id. at ¶ 7 (quotations omitted). “This conduct is far too remote in time
to the commitment hearing to have any impact on the consideration of whether
Nelson is likely to engage in sexually predatory conduct in the future.” Id.
C
[¶13] This Court defers to a district court’s determination that an individual
has serious difficulty controlling behavior when the determination is supported
by specific findings demonstrating the difficulty. Nelson, 2017 ND 152, ¶ 8; see
also Johnson, 2016 ND 29, ¶ 5; Knoke, 2021 ND 240, ¶ 15. We have held that
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“contemporary evidence or specific instances” are necessary to demonstrate
that a person has a serious difficulty controlling behavior. T.A.G., 2019 ND 115,
¶¶ 9-10. The district court’s findings must identify recent conduct or “describe
anything that shows [an individual] has a present serious difficulty controlling
his behavior.” Nelson, at ¶ 9.
[¶14] In Matter of Hanenberg, this Court affirmed a district court finding that
Hanenberg had serious difficulty in controlling his behavior because he had
groomed and flattered a female therapist and hugged and touched a female
volunteer in violation of prison rules, all of which occurred approximately
within three years of his commitment hearing. 2010 ND 8, ¶¶ 2, 13-14, 19, 777
N.W.2d 62.
[¶15] In Matter of Vantreece, we upheld a finding of serious difficulty when the
individual admitted that he had uncontrolled anger and rage and had to be
moved to his own jail cell because he was compulsively masturbating, all
approximately within two years of when the State petitioned to civilly commit
him. 2009 ND 152, ¶¶ 2, 17, 19, 771 N.W.2d 585; see also Johnson, 2016 ND
29, ¶ 5.
D
[¶16] The district court found that Sternberg had serious difficulty controlling
his behavior because of several factors, including his high actuarial test scores
that provided prognostic evidence predicting the likelihood Sternberg will
reoffend, the fact that Sternberg was diagnosed with mental disorders,
Sternberg’s disregard for the rights and safety of others, and his predisposition
for sexual predatory behavior. In addition, the court relied on the professional
opinion of Dr. Byrne as well as Sternberg’s “lack of development of adequate
coping skills and skills to manage his mental disorders.” The State has the
burden to show Sternberg has a serious difficulty controlling behavior—basing
this finding on Sternberg’s failure to develop adequate coping skills
erroneously shifts the burden from the State to Sternberg. See Johnson, 2016
ND 29, ¶ 11; Interest of T.A.G., 2019 ND 167, ¶¶ 6-8, 930 N.W.2d 166. Finally,
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the court considered Sternberg’s history of sexual crimes and his criminal
history in general, which, as in Nelson, occurred twenty-one years before his
civil commitment hearing. This criminal history “is far too remote in time to
the commitment hearing to have any impact on the consideration” of whether
Sternberg has substantial difficulty controlling behavior. See Nelson, 2017 ND
152, ¶ 7. The district court did not err in considering this evidence, but its
findings are insufficient because they do not include “contemporary evidence
or specific instances” that show Sternberg “presently” has serious difficulty
controlling behavior.
E
[¶17] This record does not support a finding by clear and convincing evidence
that Sternberg presently has a serious difficulty controlling behavior.
Sternberg has not had a major sexual incident in prison since 2015, and
according to his major incident report, he has not had any incidents at all since
a 2019 write-up for smuggling. This 2019 write-up was non-sexual and does
not have a sufficient nexus to Sternberg’s sexual disorders. See T.A.G., 2019
ND 115, ¶¶ 5-8. Dr. Byrne testified that he couldn’t find any evidence in prison
records indicating that “Sternberg [had] any difficulty controlling his sexual
behavior” or his “violent behavior” in the five years before the commitment
hearing. Sternberg’s prison records, in fact, indicate that he had not had a
reported incident of sexual misconduct in the six and one-half years preceding
his commitment hearing. Dr. Byrne opined that Sternberg’s “lack of consistent
major write ups … are indicative of improved adjustment on his part,” and he
also noted that Sternberg received thirty-two positive behavior reports from
2012 to 2020. Sternberg completed sex offender treatment programs in 2001
and 2004. The State conceded at oral argument that Sternberg had completed
a third treatment program from 2019 to 2020. The April 2020 discharge
summary noted that he had shown “noticeable” growth, had gained some
insight into his behavior, and was “engaged and willing and [a] workable
member” of the treatment group. The State was burdened with proving by clear
and convincing evidence that Sternberg has serious difficulty controlling his
behavior. It has failed to do so.
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IV
[¶18] Because we conclude the district court’s finding on the Crane factor was
clearly erroneous, we do not discuss Sternberg’s argument relating to the third
statutory factor. We reverse the order of the district court.
[¶19] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr
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