Gaddie v. Barrera , 2008 N.D. LEXIS 18 ( 2008 )

KAPSNER, Justice,

concurring in the result.

[¶ 16] I concur in the result reached by the majority. However, rather than analyzing Barrera’s actuarial test scores in an effort to predict Barrera’s likelihood of recidivism, I would note the importance of the district court’s ability to make the “ultimate decision to determine whether the State has met its burden of producing clear and convincing evidence sufficient for commitment” by considering evidence other than actuarial test scores. Interest of P.F., 2006 ND 82, ¶29, 712 N.W.2d 610 (Kapsner, J., concurring).

[¶ 17] As I have explained in prior decisions, “[a] psychological test cannot act as a substitute for independent judicial review,” and the district court may take into account a multiplicity of factors or evidence, beyond actuarial test scores, in deciding whether an individual is suited for commitment as a sexually dangerous individual. Interest of P.F., at ¶ 29 (Kapsner, J., concurring). The fact that Barrera’s score on the RRASOR only indicates medium risk of re-offense, and his score on the Static-99 did not indicate a high risk of re-offense, does not determine whether there is clear and convincing evidence to support his commitment. Actuarial tests speak to the likelihood of recidivism of a population of people having similar characteristics. They say nothing about the likelihood of an individual within that population to offend again.

[¶ 18] The district court was provided with evidence of the nature of Barrera’s prior sexually predatory conduct, namely, his conviction for sexually assaulting a young child. There was evidence demonstrating the existence of mental illnesses, an anti-social personality disorder and psychopathy, which together create a serious difficulty in Barrera’s ability to control his behavior. The district court received evidence of Barrera’s resistance to sex offender treatment, his lack of remorse for victims, limited self-awareness or plans for preventing future assaults, his history of impulsive physical aggression, and issues of substance abuse that inhibit his ability to control his actions. These facts may be weighed and considered by the district court. For these reasons, I would find clear and convincing evidence supports the order of the district court and affirm the order committing Barrera as a sexually dangerous individual.

[¶ 19] CAROL RONNING KAPSNER