Interest of Skorick , 2022 ND 141 ( 2022 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
JULY 21, 2022
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2022 ND 141In the Interest of Edward Skorick
Tessa M. Vaagen, Assistant
State’s Attorney, Petitioner and Appellee
v.
Edward Skorick, Respondent and Appellant
No. 20210349
Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable Pamela Ann Nesvig, Judge.
AFFIRMED.
Opinion of the Court by McEvers, Justice.
Tessa M. Vaagen, Assistant State’s Attorney, Bismarck, ND, for petitioner and
appellee; submitted on brief.
Tyler J. Morrow, Grand Forks, ND, for respondent and appellant.
Interest of Skorick
No. 20210349
McEvers, Justice.
[¶1] Edward Skorick appeals from a district court order denying his petition
for discharge from civil commitment as a sexually dangerous individual. On
appeal, Skorick argues the district court’s factual findings are insufficient to
legally conclude he has serious difficulty controlling his behavior. We affirm.
I
[¶2] Skorick has an extensive criminal history, with sexual offense
convictions dating to 1980. In October 2019, he was civilly committed as a
sexually dangerous individual. In 2020, this Court reversed and remanded an
order denying Skorick’s petition for discharge from civil commitment. Interest
of Skorick, 2020 ND 162, 946 N.W.2d 513. The district court made additional
findings and concluded Skorick remained a sexually dangerous individual.
Skorick did not appeal the court’s decision. In January 2021, Skorick
petitioned the court for review and discharge from civil commitment under
N.D.C.C. § 25-03.3-18.
[¶3] On October 25, 2021, the district court held a discharge hearing on
Skorick’s petition. The court heard testimony from the State’s expert, Dr.
Richard Travis. The court received and reviewed Dr. Travis’s evaluations.
After the hearing, the court issued an order denying Skorick’s petition for
discharge, finding by clear and convincing evidence that Skorick continues to
be a sexually dangerous individual who is likely to engage in further acts of
sexually predatory conduct and who has serious difficulty controlling his
behavior. Skorick appeals.
II
[¶4] “We review civil commitments of sexually dangerous individuals under
a modified clearly erroneous standard of review.” Matter of Hehn, 2020 ND
226, ¶ 4, 949 N.W.2d 848. We will affirm the district court’s order denying a
petition for discharge unless it is induced by an erroneous view of the law, or
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we are firmly convinced the decision is not supported by clear and convincing
evidence. Matter of Muscha, 2021 ND 164, ¶ 4, 964 N.W.2d 507 (citing Interest
of Voisine, 2018 ND 181, ¶ 5, 915 N.W.2d 647). This Court gives “great
deference to the court’s credibility determinations of expert witnesses and the
weight to be given their testimony.” Id. (quoting Matter of J.M., 2019 ND 125,
¶ 6, 927 N.W.2d 422).
[¶5] The burden is on the State to prove by clear and convincing evidence the
petitioner remains a sexually dangerous individual. Matter of R.A.S., 2019 ND
169, ¶ 5, 930 N.W.2d 162. The State must prove three statutory elements to
show the petitioner remains a sexually dangerous individual under N.D.C.C. §
25-03.3-01(8):
[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.
Interest of T.A.G., 2019 ND 167, ¶ 4, 930 N.W.2d 166. 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.”
Muscha, 2021 ND 164, ¶ 5 (quoting Matter of Didier, 2019 ND 263, ¶ 4, 934
N.W.2d 417); see also Kansas v. Crane, 534 U.S. 407, 411-13 (2002). The State
must demonstrate a causal connection between the disorder and inability to
control behavior, which would likely result in future sexually predatory
conduct. Muscha, at ¶ 5. The district court may consider “sexual and
nonsexual conduct demonstrating an individual’s serious difficulty controlling
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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.” Didier, at ¶ 4. We
defer to the court’s determination an individual has serious difficulty
controlling behavior when “it is supported by specific findings demonstrating
the difficulty.” Id.; see also R.A.S., at ¶ 9 (collecting cases).
[¶6] “To determine whether an individual has serious difficulty in controlling
behavior, all relevant conduct may be considered.” Muscha, 2021 ND 164, ¶
10. The court may consider both conduct in proximity to the hearing and past
conduct. Id. Conduct evidencing serious difficulty controlling behavior need
not be sexual in nature. Id.III
[¶7] At the hearing, Skorick stipulated to the first element, admitting he has
engaged in sexually predatory conduct. Skorick does not challenge the district
court’s findings related to the second and third elements: whether he has a
congenital or acquired condition or whether he is likely to engage in further
acts of sexually predatory conduct. On appeal, Skorick only argues the court’s
finding that he has serious difficulty controlling his behavior is not supported
by clear and convincing evidence. Skorick contends, because he has not
received negative behavioral acknowledgements over the review period, the
State failed to meet its burden.
[¶8] In support, Skorick relies on several cases in which this Court held
serious difficulty controlling behavior had not been established. In T.A.G., we
held “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.” 2019 ND 167, ¶ 11. Similarly, in R.A.S., this Court
concluded “isolated instances of refusing two doses of prescribed medication do
not establish a serious difficulty controlling behavior.” 2019 ND 169, ¶ 11.
Finally, Skorick argues his situation is similar to J.M. 2019 ND 125. In J.M.,
we held “limited rule infractions” failed to establish the necessary connection
between J.M.’s disorder and his likelihood of sexually reoffending. Id. at ¶ 16.
We are not convinced. Unlike those cases, here, the district court made
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adequate findings to demonstrate Skorick has serious difficulty controlling his
behavior.
[¶9] Dr. Travis testified, based on his evaluation, Skorick has difficulty
controlling his behavior and a nexus between his disorders and his likelihood
to reoffend exists. Dr. Travis testified Skorick “becomes kind of focused on
fulfilling sexual desires or expressing sexual urges” regardless of any
consequences. Dr. Travis testified Skorick has a history of acting
inappropriately toward hospital staff and feels no remorse for hurting his
victims. Dr. Travis also testified Skorick’s anti-social personality disorder is
disinhibiting and without treatment leads Skorick to disregard boundaries and
“take[] what he wants” when he has a sexual urge or inclination. Dr. Travis
concluded, with regard to Skorick’s pedophilic disorder, “he is not one of those
people who can have this disorder and not act out on it.”
[¶10] The district court considered the testimony and evidence presented,
including Skorick’s past and present conduct, in making its finding he has
serious difficulty controlling his behavior. The court noted Skorick’s history of
negative behavior at the North Dakota State Hospital, including being
oppositional to staff, cursing at staff, and calling staff stupid, to the point of
having outside time cut short. The court found Skorick has threatened to
commit an offense to get out of the State Hospital so he can return to the state
penitentiary. The court also found Skorick had engaged in staff shopping, does
not follow procedure, and often needs redirection multiple times. The court
stated these behaviors had occurred through October 2020, roughly one year
before the hearing, but also indicated Skorick had engaged in inappropriate
behavior in early 2021. The court found Skorick refused blood pressure
medication in October 2020, and the record reflects Skorick has a history of
refusing his medication, including a period in May 2021. The court found,
although he has not recently received negative behavioral write ups, Skorick
has not implemented meaningful changes to interrupt his pattern of sexual
offenses, Skorick continues to be impulsive and disregard the feelings of others,
and Skorick’s behavioral issues remain unchanged and pervasive.
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[¶11] The district court further found Skorick has not begun his treatment
programming at the State Hospital and refuses to participate in treatment.
The court found Skorick’s refusal to participate indicates a lack of motivation
for change. The court noted Skorick has a “high treatment need based upon
his risk” and heard testimony that someone with Skorick’s risk level should
receive “300 hours or more of sex offense specific treatment.” The evidence
shows not only a lack of progress but also a lack of participation. See Didier,
2019 ND 263, ¶ 9. The court concluded his “lack of progress in treatment and
his continued behavior issues are evidence Skorick has serious difficulty
controlling his behavior, even in a controlled environment at the State
Hospital.” The court made adequate findings and analysis regarding the Crane
due process requirement. We conclude the court’s finding that Skorick has
serious difficulty controlling his behavior is supported by clear and convincing
evidence and is not clearly erroneous.
IV
[¶12] We affirm the district court’s order denying Skorick’s petition for
discharge.
[¶13] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
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