IN THE SUPREME COURT
STATE OF NORTH DAKOTA
|In the Interest of Raymond J. Voisine|
|Supreme Court No. 20120325|
APPEAL FROM THE ORDER FOR CONTINUED COMMITMENT
OF RAYMOND VOISINE AS A SEXUALLY DANGEROUS INDIVIDUAL
SHERIDAN COUNTY DISTRICT COURT
THE HONORABLE SONNA ANDERSON, PRESIDING
BRIEF OF APPELLEE
|Jonathan R. Byers #04583|
|Assistant Attorney General|
|Office of Attorney General|
|600 East Boulevard Avenue, Department 125|
|Bismarck, ND 58505-0040|
Attorney for the State of North Dakota, Appellee
|TABLE OF CONTENTS|
|TABLE OF AUTHORITIES||ii|
|STATEMENT OF THE ISSUES||1|
|FACTS AND PROCEEDINGS||1|
|STANDARD OF REVIEW||3|
|II.||THE DISTRICT COURT'S ORDER FINDING VOISINE REMAINS A|
SEXUALLY DANGEROUS INDIVIDUAL IS SUPPORTED BY
CLEAR AND CONVINCING EVIDE
|A.||Prong 1: Voisine has a conviction for Gross Sexual Imposition which, by itself, establishes that Voisine previously engaged in sexually predatory conduct.||3|
|B.||Prong 2: The Trial Court's finding that the testimony of Dr. Robert Lisota was persuasive is not clearly erroneous.||5|
|C.||Prong 3: The Trial Court's finding that Voisine is likely to engage|
in further acts of sexually predatory conduct is not clearly
|D.||Prong 4: The Trial Court's finding that Voisine has serious|
difficulty controlling his behavior is not clearly erroneous
TABLE OF AUTHORITIES
|Anderson v. Heinze,|
|2002 ND 60, 643 N.W.2d 24||10|
|In the Interest of Voisine,|
|2010 ND 241, 795 N.W.2d 38||2|
|Interest of G.L.D.,|
|2011 ND 52, 795 N.W.2d 346||7|
|Interest of L.D.M.,|
|2011 ND 25, 793 N.W.2d 778||10|
|Interest of P.F.,|
|2006 ND 82, 712 N.W.2d 610||5|
|Kansas v. Crane,|
|534 U.S. 407 (2002)||10|
|Matter of A.M.,|
|2009 ND 104, 766 N.W.2d 437||5, 7|
|Matter of A.M.,|
|2010 ND 163, 787 N.W.2d 752||7|
|Matter of Barrera,|
|2008 ND 25, 744 N.W.2d 744||6|
|Matter of G.R.H.,|
|2006 ND 56, 711 N.W.2d 587||3, 5, 8|
|Matter of G.R.H.,|
|2008 ND 222, 758 N.W.2d 719||3|
|Matter of Hanenberg,|
|2010 ND 08, 777 N.W.2d 62||7|
|Matter of Hehn,|
|2008 ND 36, 745 N.W.2d 631||5, 7, 10|
|Matter of J.T.N.,|
|2011 ND 231, 807 N.W.2d 570||7, 10|
|Matter of M.D.,|
|2008 ND 208, 757 N.W.2d 559||8|
|Matter of R.A.S.,|
|2009 ND 101, 766 N.W.2d 712||7|
|Matter of T.O.,|
|2009 ND 209, 776 N.W.2d 47||7|
|Matter of Vantreece,|
|2009 ND 152, 771 N.W.2d 585||3, 7|
|Matter of Voisine,|
|2010 ND 17, 777 N.W.2d 908||1, 2|
|Matter of Wolff,|
|2011 ND 76, 796 N.W.2d 644||7, 8, 11|
|Murchison v. State,|
|1998 ND 96, 578 N.W.2d 514||10|
|N.D.C.C. § 25-03.3-01(8)||3, 4, 6|
|N.D.C.C. § 25-03.3-01(9)||3|
|N.D.C.C. ch. 29-32.1||3|
STATEMENT OF THE ISSUES
DID THE STATE PRESENT CLEAR AND CONVINCING EVIDENCE TO SUPPORT THE CONTINUED COMMITMENT OF RAYMOND VOISINE AS A SEXUALLY DANGEROUS INDIVIDUAL?
FACTS AND PROCEEDINGS
The following facts are set out in Matter of Voisine, 2010 ND 17, 777 N.W.2d 908:
[¶2] Voisine is a (69)-year-old male with four adult children, R.V., P.P., H.M. and L.K. In 2003, an officer with the North Dakota Bureau of Criminal Investigation executed a search warrant on Voisine's home for an unrelated firearms charge. During the search, the officer found sexually explicit photographs under the pillow on Voisine's bed. The photographs pictured H.M., one of Voisine's three adult daughters. DNA analysis was performed and established with over 99.99 percent certainty that Voisine fathered two children with H.M.
[¶3] In light of Voisine's incestuous relations, interviews were conducted with his acquaintances. Voisine's grandson reported that when he was 6 or 7 years old, he was forced to stroke Voisine's penis for 5 to 10 minutes. The ex-husband of H.M. reported that Voisine threatened him with a firearm and fathered a child with P.P., Voisine's adult daughter. Voisine's ex-wife reported that Voisine beat and threatened her while they were married. The current boyfriend of Voisine's ex-wife reported that Voisine's children were sexually abused when they were minors. Voisine's daughter, L.K., reported that she was born to a 17-year-old mother who was impregnated by a 34-year-old Voisine. L.K. also reported that Voisine physically abused her when she was young and that she once walked in on Voisine unzipping his pants behind a naked and bent-over H.M. L.K. later denied stating H.M. was naked.
[¶4] Following the investigation, Voisine was charged with gross sexual imposition for sexual contact with his 6- or 7-year-old grandson and with promoting obscenity to a minor for allegedly showing pornography to a second, 9- or 10-year-old grandson who was also Voisine's son. Voisine pled guilty to gross sexual imposition, and the promotion of obscenity charge was dismissed. He was incarcerated, and upon his release in 2008, the State petitioned to commit him as a sexually dangerous individual. The State alleged that in addition to the sexual contact underlying Voisine's gross sexual imposition conviction, that Voisine sired three children with two of his daughters, that Voisine sexually abused his daughters as minors, that Voisine conceived a child with a 16-year-old girl in Maine and that Voisine promoted obscenity to a minor by showing pornography to his 9- or 10-year-old grandson/son.
Voisine, 2010 ND 17, ¶¶ 2-4.
Dr. Lynne Sullivan, a psychologist at the North Dakota State Hospital and Dr. Edward Kelly, a forensic scientist for Voisine evaluated Voisine. Following a preliminary hearing and commitment hearing, Judge Robert Wefald ordered that Voisine be committed for treatment as a sexually dangerous individual. Voisine appealed, and this Court reversed and remanded the case back to the trial court for further proceedings and findings. Matter of Voisine, 2010 ND 17, ¶ 15, 777 N.W.2d 908. Upon remand, the trial court conducted an additional hearing, issued findings consistent with this Court's opinion, and ordered the continued commitment of Voisine as a sexually dangerous individual. Voisine appealed, and this Court summarily affirmed the order of commitment. In the Interest of Voisine, 2010 ND 241, 795 N.W.2d 38.
At the time for his annual review, Voisine again petitioned for discharge. Dr. Robert Lisota conducted the evaluation for the North Dakota State Hospital. Dr. Stacy Benson was appointed as Voisine's independent evaluator. A hearing was held on February 22, 2012, before the Honorable Sonna Anderson. Both experts testified and their reports were accepted as evidence. Following the hearing, Judge Anderson entered an order for the continued commitment of Raymond Voisine as a sexually dangerous individual. (Appendix pp. 61-66.) This appeal followed.
I. STANDARD OF REVIEW
The North Dakota Supreme Court reviews civil commitments of sexually dangerous individuals under a modified clearly erroneous standard in which the Court will affirm a district court's 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." Matter of Vantreece, 2009 ND 152, ¶ 4, 771 N.W.2d 585 (quoting Matter of G.R.H., 2008 ND 222, ¶ 7, 758 N.W.2d 719.)
N.D.C.C. § 25-03.3-01(8) defines a "sexually dangerous individual" to mean "an individual who is shown to have engaged in sexually predatory conduct and who has a congenital or acquired condition that is manifested by a sexual disorder, a personality disorder, or other mental disorder or dysfunction 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." See Matter of Vantreece, 2009 ND 152, ¶ 6, 771 N.W.2d 585; Matter of G.R.H., 2006 ND 56, ¶ 6, 711 N.W.2d 587.
II. THE DISTRICT COURT'S ORDER FINDING VOISINE REMAINS A SEXUALLY DANGEROUS INDIVIDUAL IS SUPPORTED BY CLEAR AND CONVINCING EVIDENCE.
A. Prong 1: Voisine has a conviction for Gross Sexual Imposition which, by itself, shows that Voisine previously engaged in sexually predatory conduct.
N.D.C.C. § 25-03.3-01(9) defines "sexually predatory conduct," in part, to mean:
a. Engaging or attempting to engage in a sexual act or sexual contact with another individual, or causing or attempting to cause another individual to engage in a sexual act or sexual contact, if:
(1) The victim is compelled to submit by force or by threat of imminent death, serious bodily injury, or kidnapping directed toward the victim or any human being, or the victim is compelled to submit by any threat that would render an individual of reasonable firmness incapable of resisting;
(4) The victim is less than fifteen years old;
(7) The victim is a minor and the actor is an adult; or
b. Engaging in or attempting to engage in sexual contact with another individual or causing or attempting to cause another individual to have sexual contact, if:
(1) The actor knows or should have known that the contact is offensive to the victim; or
(2) The victim is a minor, fifteen years of age or older, and the actor is the minor's parent, guardian, or is otherwise responsible for general supervision of the victim's welfare.
Not only does Voisine have a conviction which satisfies the requirements of subsection (a)(4) above, he testified at the original preliminary hearing that he committed the offense. (Hearing on remand, p. 19, lines 11-21.) Voisine cannot collaterally challenge the validity of his criminal conviction for GSI in the present civil commitment proceeding when he has never successfully challenged the conviction itself (he only challenged his probation revocation) in the criminal case or in chapter 29-32.1 post conviction proceedings.
All sexually predatory conduct may be considered in an analysis under N.D.C.C. § 25-03.3-01(8), including conduct not resulting in a charge or conviction. Matter of A.M., 2009 ND 104, ¶ 10, 766 N.W.2d 437 (citing G.R.H. at ¶ 7; Interest of P.F., 2006 ND 82, ¶ 20, 712 N.W.2d 610).
The State presented other evidence of sexually predatory conduct. DNA evidence shows Voisine fathered a child with a girl who was 17 years old when the baby was born. (App. pp. 37-39, Trans. 62-64.) Although Voisine previously denied fathering the child, L.K., once the DNA evidence was in, he then admitted L.K. was his child. (Hearing on remand, pp. 13, lines 15-19.) Contrary to his post-DNA statements, Voisine had previously admitted L.K.'s mother had moved into his home at age 17, already pregnant. (Hearing on remand, pp. 18, lines 2-18).
There was clear and convincing evidence Voisine had committed sexually predatory conduct. Both experts agreed this was the case, and Voisine did not contest this issue at the annual review hearing. It was not clearly erroneous for the District Court to find the first requirement of the statute had been satisfied.
B. Prong 2: The trial court's finding that the testimony of Dr. Robert Lisota was persuasive is not clearly erroneous.
The second prong of the sexually dangerous individual statute requires clear and convincing evidence that [Voisine] suffers from a "congenital or acquired condition that is manifested by a sexual disorder, a personality disorder, or other mental disorder or dysfunction." Matter of Hehn, 2008 ND 36, ¶ 24, 745 N.W.2d 631.
Diagnosis of a sexual disorder, however, is not required under N.D.C.C. diagnosed with "a personality disorder, or other mental disorder or dysfunction...." Matter of Barrera, 2008 ND 25, ¶ 7, 744 N.W.2d 744 (quoting N.D.C.C. § 25-03.3-01(8)).
The testimony of the experts differed on the issue of whether Voisine has a congenital or acquired condition that is manifested by sexual disorder, a personality disorder, or other mental disorder or dysfunction. During his evaluation of Voisine, Dr. Robert Lisota, a forensic psychologist, found an Axis I diagnosis of Paraphilia Not Otherwise specified. (Feb. 2012 transcript, p. 9 ll. 4-5.) Dr. Lisota testified that especially compelling in this regard is the DNA evidence that indicates [Voisine] has been engaging in incestuous activities for a very long time. (Id. at 9, ll. 18-20.) Dr. Lisota also found evidence of hebephilia, which is an attraction to adolescents, typically age 12 to 14. (Id. at 10, ll. 5-6.) Finally, Dr. Lisota identified that Voisine also demonstrated arousal to a pre-pubescent male. All of those things led Dr. Lisota to a diagnosis of paraphilia NOS, because the "DSM really doesn't have a label that encompasses an individual who has committed a wide variety of sexual acts over a large number of years with different ages of individuals and different genders, all of who are biologically related to him." (Id. at 11, ll. 1-9.)
Dr. Lisota then discussed his Axis II diagnosis of Personality Disorder Not Otherwise Specified with Antisocial Features. Dr. Lisota explained that in order to diagnose someone with a diagnosis of Antisocial Personality Disorder, it requires evidence of conduct or behavior prior to age 15. (Feb. 2012 transcript p. 11, ll. 16-22.) No such records were available for Voisine, so the next closest diagnosis is Personality Disorder NOS with Antisocial Features, which both Dr. Sullivan in 2008 and Dr. Lisota in 2011 found to apply to Voisine. Dr. Lisota testified that in the original commitment hearing, Dr. Edward Kelly had also applied this diagnosis to Voisine. (Id. at 13, ll. 5-13.)
Dr. Benson disagreed with the diagnosis issued by doctors Sullivan and Lisota, and by extension with the original diagnosis by Voisine's own expert, Dr. Kelly. Voisine's challenge on appeal relating to prong 2 appears to be that "Dr. Benson is clearer and more convincing in her diagnosis."
This Court has said that the district court is the best credibility evaluator in cases of conflicting testimony, and the Court will not second-guess the district court's credibility determinations. Matter of A.M., 2009 ND 104, ¶ 10, 766 N.W.2d 437. Claims that a district court improperly relied on the opinion of one expert instead of another challenge the weight the evidence was assigned, not the sufficiency of the evidence. Matter of Hehn, 2008 ND 36, ¶ 22, 745 N.W.2d 631. Because evaluation of credibility where evidence is conflicting is solely a trial court function, the North Dakota Supreme Court will not reweigh expert testimony. Matter of J.T.N., 2011 ND 231, 807 N.W.2d 570. "We consistently have declined to 'second-guess the credibility determinations made by the trial court' in sexually dangerous individual proceedings." Id., citing Hehn, at ¶ 23, Matter of Wolff, 2011 ND 76, ¶¶ 5, 13-14, 796 N.W.2d 644; Interest of G.L.D., 2011 ND 52, ¶¶ 5-10, 795 N.W.2d 346; Matter of A.M., 2010 ND 163 ¶¶ 19-21, 787 N.W.2d 752; Matter of Hanenberg, 2010 ND 08, ¶¶ 17-18, 777 N.W.2d 62; Matter of T.O., 2009 ND 209, ¶¶ 8-11, 776 N.W.2d 47; Matter of Vantreece, supra at ¶¶ 4, 18; Matter of A.M., 2009 ND 104, ¶¶ 10, 20; Matter of R.A.S., 2009 ND 101, 766 N.W.2d 712; Matter of G.R.H., supra at ¶¶ 7, 11; Matter of M.D., 2008 ND 208, ¶¶ 7, 11, 757 N.W.2d 559. "We have further explained that a choice between two permissible views of the weight of the evidence is not clearly erroneous." Wolff, at ¶ 14.
Voisine's claim that the court improperly relied on Dr. Lisota's testimony (which accords with Sullivan and Kelly) instead of Dr. Benson's testimony is a challenge to the weight of the evidence, which the Court will not reweigh, and cannot rise to the standard of being clearly erroneous.
C. Prong 3: The trial court's find that Voisine is likely to engage in further acts of sexually predatory conduct is not clearly erroneous.
Voisine and his expert find fault with Dr. Lisota for not scoring Voisine on basic risk assessment instruments. Dr. Sullivan had earlier scored these instruments, but did not rely on them, because they are not designed for incest-only offenders. (Appendix, p. 10.) Dr. Lisota took a similar position in not relying on the actuarials. In her testimony, Dr. Benson countered that the actuarial instruments can be used on incest-only offenders as long as there is penetration. (Feb. 2012 transcript, p. 65, ll. 10-15.) For evidence of penetration, Dr. Benson relies on conduct that did not result in a charge or conviction, even though she attacks Dr. Lisota for taking them into account in the overall evaluation. "The allegations against Mr. Voisine, other than his index offense, were never found credible by a court of law, and Mr. Voisine denies them." (Id. at 61-63.) In effect, Dr. Benson would have the court ignore the uncharged offenses in making a general determination of likelihood to reoffend, while using them to trigger the various actuarial tools, all the while knowing that the uncharged misconduct is not going to be scored on most of the items on the risk instruments. (Id. at 65-68.)
Dr. Lisota acknowledged in his report that Voisine's actuarially assessed risk of sexual recidivism does not meet the criteria of "likely to engage in further acts of sexually predatory conduct." (Appendix, p. 10.) However, when Voisine's level of psychopathy is considered, along with the presence of dynamic factors, a different picture is presented:
A considerable body of research has demonstrated that individuals who have a high score on the PCL-R are at elevated risk for illegal and violent behavior. Research has also found that individuals who manifest a combination of sexual deviance and a high degree of psychopathy (ie, 25 or greater), as Mr. Voisine does, are at especially high risk for both violent and sexually violent reoffending. This risk is higher than can be estimated using the conventional risk assessment instruments. As a result of this robust finding, in combination with the points made above, I believe that Mr. Voisine is likely to engage in future acts of sexually predatory conduct.
(appendix, pp. 11-12.)
Dr. Lisota also specified the dynamic risk factors the he believes makes Voisine a high risk to reoffend, as opposed to the static factors contained in the traditional actuarial tools. (Appendix, p. 12.) In deciding that Dr. Lisota's opinion is credible and carries more weight than Dr. Benson, the trial court identified that Voisine's lack of progress in treatment, his compulsiveness, and his unwillingness to address change of his behavior support Dr. Lisota's finding. (Appendix, p. 64.)
Voisine asserts that because Dr. Benson disagreed with Dr. Lisota, that means that State failed in its burden to prove the prong by clear and convincing evidence. However, in Matter of J.T.N, supra at ¶ 8, the trial court found the State's expert more credible, even though the respondent hired five independent experts to conduct evaluations and testify for him. On appeal, the North Dakota Supreme Court reiterated that it does not reweigh expert testimony:
The district court gave more weight to Dr. Lisota's testimony and report than it gave to the testimony and reports of J.T.N.'s experts. The district court made detailed findings, including credibility determinations and references to the evidence relied on. See Interest of L.D.M., 2011 ND 25, ¶ 6, 793 N.W.2d 778. We conclude the district court's finding that J.T.N. was likely to engage in further acts of sexually predatory conduct was not clearly erroneous because we are not firmly convinced the finding was not supported by clear and convincing evidence.
Id. at ¶ 12.
D. Prong 4: The trial court's finding that Voisine has serious difficulty controlling his behavior is not clearly erroneous.
The United States Supreme Court held that "in order to satisfy substantive due process requirements, the individual must be shown to have serious difficulty controlling his behavior." Matter of Hehn, 2008 ND 36, ¶ 19, 745 N.W.2d 631, (citing Kansas v. Crane, 534 U.S. 407, 413 (2002)).
Voisine failed to brief this issue in his appellant's brief. Issues not briefed by an appellant are deemed abandoned. Anderson v. Heinze, 2002 ND 60, ¶ 12, 643 N.W.2d 24 (quoting Murchison v. State, 1998 ND 96, ¶ 13, 578 N.W.2d 514.) Voisine simply stated Dr. Benson's conclusion on this point and posed a question as to Dr. Lisota's conclusion, which does not sufficiently raise this issue on appeal.
There is extensive evidence in the record on this point. The trial relied on Dr. Lisota:
"Dr. Lisota disagrees. He is concerned that Voisine has not participated in his treatment, that he has not acknowledged his sexually predatory acts. Voisine has not improved his coping skills or worked on any plans for behavior modification which would give him the tools he needs to control his behavior. In fact, he appears not to want to work on any of those behaviors. In addition, Voisine's victims and family members are enablers who do not provide negative feedback to facilitate any change in Voisine's behavior. In Dr. Lisota's opinion, nothing has changed Mr. Voisine since he was found to be a sexually dangerous individual except that he has gotten older. The Court agrees with Dr. Lisota."
(Appendix p. 65).
This Court gives great deference to the trial court's credibility determinations of expert witnesses and the weight to be given their testimony. Matter of Wolff, supra at ¶ 5. The trial court's finding that Voisine has serious difficulty controlling his behavior is supported by clear and convincing evidence.
There was clear and convincing evidence which supports the district court's finding that Voisine has engaged in sexually predatory conduct, that he has a congenital or acquired condition that makes it likely that he will engage in further acts of sexually predatory conduct, and that he has serious difficulty controlling his behavior. The order of continued commitment of him for treatment in the custody of the executive director of the Department of Human Services should be affirmed.
|Dated this 13th day of November, 2012.|
|State of North Dakota|
|Jonathan R. Byers||#04583|
|Assistant Attorney General|
|Office of Attorney General|
|600 East Boulevard Avenue, Dept. 125|
|Bismarck, ND 58505-0040|
|Attorney for State of North Dakota, Appellee|