Matter of Muscha , 2021 ND 164 ( 2021 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
SEPTEMBER 16, 2021
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2021 ND 164In the Matter of Cruz Timothy Muscha
Tonya Duffy, Barnes County
State’s Attorney, Petitioner and Appellee
v.
Cruz Timothy Muscha, Respondent and Appellant
No. 20210071
Appeal from the District Court of Barnes County, Southeast Judicial District,
the Honorable James D. Hovey, Judge.
AFFIRMED.
Opinion of the Court by McEvers, Justice.
Tonya Duffy, State’s Attorney, Valley City, ND, petitioner and appellee;
submitted on brief.
Tyler J. Morrow, Grand Forks, ND, for respondent and appellant.
Matter of Muscha
No. 20210071
McEvers, Justice.
[¶1] Cruz Muscha appeals from a district court order denying his petition for
discharge from civil commitment as a sexually dangerous individual. On
appeal, Muscha argues the district court’s factual basis was insufficient to
legally conclude he met the substantive due process requirement of serious
difficulty controlling his behavior. We affirm.
I
[¶2] Muscha has previously been convicted of three counts of gross sexual
imposition and one count of sexual assault. In December 2012, the State
petitioned the district court to commit Muscha as a sexually dangerous
individual. In May 2013, the court ordered Muscha’s commitment under
N.D.C.C. ch. 25-03.3. Muscha appealed, and this Court affirmed. See In re
Muscha, 2013 ND 233, 841 N.W.2d 1. In April 2020, Muscha petitioned the
court for review and discharge from civil commitment.
[¶3] On January 11, 2021, the district court held a discharge hearing on
Muscha’s petition and heard testimony from the State’s expert, Dr. Deirdre
D’Orazio. Dr. D’Orazio’s report was also received into evidence. After the
hearing, the court issued an order denying Muscha’s petition for discharge,
finding clear and convincing evidence that Muscha 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.
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. This Court will affirm the district court’s order
denying a petition for discharge 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. Interest of Voisine, 2018 ND 181, ¶ 5, 915 N.W.2d 647. We
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give “great deference to the court’s credibility determinations of expert
witnesses and the weight to be given their testimony.” Matter of J.M., 2019 ND
125, ¶ 6, 927 N.W.2d 422 (citing Interest of Tanner, 2017 ND 153, ¶ 4, 897
N.W.2d 901).
[¶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.”
Matter of Didier, 2019 ND 263, ¶ 4, 934 N.W.2d 417 (quoting Voisine, 2018 ND
181, ¶ 6); see also Kansas v. Crane, 534 U.S. 407, 411-13 (2002). There must be
a causal connection between the disorder and inability to control behavior,
which would likely result in future sexually predatory conduct. R.A.S., 2019
ND 169, ¶ 7. “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
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engage in further sexually predatory conduct.” Didier, 2019 ND 263, ¶ 4. This
Court defers to a district court’s determination an individual has serious
difficulty controlling behavior when “it is supported by specific findings
demonstrating the difficulty.” Id. (quoting In re Johnson, 2016 ND 29, ¶ 5, 876
N.W.2d 25); see also R.A.S., at ¶ 9 (collecting cases).
III
[¶6] Muscha conceded elements one and two had been met in the district
court. Under the first prong of N.D.C.C. § 25-03.3-01(8), the court found
Muscha had been previously convicted of sexual assault and gross sexual
imposition, and res judicata conclusively established Muscha had engaged in
sexually predatory conduct. As to the second element, the court concluded
Muscha had a diagnosis of a congenital or acquired condition that is
manifested by a sexual disorder.
[¶7] Muscha does not argue the State failed to meet its burden on the third
statutory element that he is likely to engage in further acts of sexually
predatory conduct. The district court found by clear and convincing evidence
that the State had met its burden.
[¶8] On appeal, Muscha argues the evidence was insufficient to support a
finding he has serious difficulty controlling his behavior. In determining
Muscha has serious difficulty controlling his behavior, the district court
considered specific instances demonstrating Muscha’s difficulty. The court
referred to Dr. D’Orazio’s testimony and report, including her opinion Muscha
“has serious difficulty controlling his behavior in the institutional
environment” that “would be expected to worsen if discharged to a less
restrictive alternative than the State Hospital at this time.” The court further
cited evidence of Muscha acting out while committed, including a 2018
conviction for the sexual assault of a staff person and a 2020 incident where
Muscha “pulled [a peer’s sweatshirt hood] tight to the point where the other
peer reported it felt like he was being choked.” Regarding the choking incident,
the court found the evidence demonstrated “the incident involved more than
mere horseplay.” The court found “Muscha engaged in rule violating behavior
by choking a peer, involving . . . horseplay, overuse of physical force, and
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resisting boundaries set by rules and by the peer’s statements.” The court
found that although Muscha “has not sexually acted out over the [one year]
review period,” the record contained numerous examples of Muscha “exhibiting
other negative behaviors during the review period, which demonstrate serious
difficulty controlling his behavior.” The evidence indicated Muscha had been
“receiving phone calls from a former female staff member with whom he has
groomed into a relationship,” was caught “spreading [a] rumor that staff
member got kicked off secure 3 for touching a client,” and repeatedly got “upset
and argumentative when things don’t go his way.” The court further relied on
Dr. D’Orazio’s report, including statements Muscha showed “low practical
coping strategies to prevent high risk behavior.” The court found Muscha
“shows questionable motivation for change” and “continues to receive write ups
for negative and inappropriate behavior while living in secure settings.”
[¶9] Muscha relies on several cases previously decided by this Court in
arguing he does not have serious difficulty controlling his behavior. 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
found “isolated instances of refusing two doses of prescribed medication do not
establish a serious difficulty controlling behavior.” 2019 ND 169, ¶ 11. Finally,
Muscha argues his situation is similar to J.M., where we held “limited rule
infractions” failed to establish the necessary connection between J.M.’s
disorder and his likelihood of sexually reoffending. 2019 ND 125, ¶ 16.
[¶10] Muscha contends his recent behavior is analogous to these cases. We
disagree. “To determine whether an individual has serious difficulty in
controlling behavior, all relevant conduct may be considered.” Didier, 2019 ND
263, ¶ 8. “[W]hile conduct in proximity to the hearing is relevant, the past still
has some relevance.” Voisine, 2018 ND 181, ¶ 18. The court relied on Dr.
D’Orazio’s opinion that Muscha “has serious difficulty controlling his behavior
in the institutional environment.” The court found Muscha had engaged in
“horseplay, overuse of physical force, and resisting boundaries” set by his peers
as recently as 2020. Muscha had also exhibited other negative behaviors
during the present review period, including taking inappropriate phone calls,
4
spreading rumors, and getting upset and argumentative. Although Muscha
has not sexually acted out during the present review period, the conduct
evidencing a serious difficulty controlling behavior need not be sexual in
nature. Tanner, 2017 ND 153, ¶ 5. The court noted an excerpt from Dr.
D’Orazio’s report:
Since being committed as an SDI at NDSH, Mr. Muscha has
engaged in sexual infractions involving exposing his penis, sexual
horseplay, unwanted sexual touching, sexual activity with [a] staff
person in 2013, sexual boundary violation against a staff person in
2014, and the conviction involving sexual assault of a staff person
in 2018 . . . . [H]e also reports having received a negative write up
since the 2018 conviction, this occurring in 2019 reportedly
involving holding a female staff person’s car keys . . . . He also
disclosed having engaged in several sexual rules violations a few
years ago involving consensual anal intercourse with his then
roommate[.]
We note the references to Muscha’s behavior from 2013 and 2014 have less
relevance as to whether he continues to have serious difficulty controlling his
behavior. However, the conduct from more recent years, including an
additional sexual conviction and sexual rule violations from 2018 and 2019,
have more relevance when considered along with Muscha’s conduct during the
current review period.
[¶11] Finally, the district court found Muscha lacks insight into his conditions
and risk factors, refuses to participate in treatment, and does not demonstrate
motivation for change. Review of the record reflects “more than just lack of
progress, it showed a lack of participation.” Didier, 2019 ND 263, ¶ 9. We
conclude the court’s finding by clear and convincing evidence that Muscha has
serious difficulty controlling his behavior based on his past and present
conduct is not clearly erroneous and is supported by the record.
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IV
[¶12] The district court’s order is affirmed.
[¶13] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
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