IN THE SUPREME COURT
STATE OF NORTH DAKOTA
|IN THE INTEREST OF RAYMOND J. VOISINE,|
|Supreme Court No. 20120325|
|District Court No. 42-08-R-00002|
APPEAL FROM ANNUAL REVIEW HEARING
AND ORDER FOR CONTINUED COMMITMENT
HONORABLE SONNA ANDERSON, PRESIDING
|Kent M. Morrow|
|Severin Ringsak & Morrow|
|411 N. 4th Street #6|
|Bismarck, ND 58501|
|TABLE OF CONTENTS|
|Table of Contents||.||page 2|
|Table of Authorities||..page 3|
|Statement of Issues||..1-2|
|Did the State present clear and convincing evidence|
|to support the continued commitment of Raymond Voisine?|
|Statement of the Case||3-9|
|Statement of Facts||....10-13|
|Law and Argument||..14-44|
|Certificate of Service||....page 17|
|TABLE OF AUTHORITIES|
|Grosinger v. M.B.K., 2002 ND 25, 639 N.W.2d 473.||.16|
|Matter of E.W.F., 2008 ND 130, ¶8, 751 N.W.2d 686.||...15,16|
|Matter of R.A.S., 2008 ND 185, ¶5, 751 N.W.2d 771.||.15|
|North Dakota Century Code:|
2. Did the State present clear and convincing evidence to support the continued commitment of Raymond J. Voisine?
3. STATEMENT OF THE CASE.
4. Assistant Attorney General Jonathan Byers, acting in his capacity as special assistant states attorney of Sheridan County, served and filed a Petition for Commitment of a Sexually Dangerous Individual in accordance with N.D.Cent.Code §25-03.3. The Petition named Raymond J. Voisine, hereinafter referred to as the Respondent, alleging that he "had engaged in sexually predatory conduct" and "Respondent is a sexually dangerous individual."
5. A preliminary hearing occurred on June 23, 2008, with the Honorable Bruce B. Haskell presiding. Judge Haskell issued an Order for Evaluation following the hearing, ordering, "A commitment hearing will be scheduled to occur within sixty days of this order." The District Court subsequently signed an Order for Independent Evaluation, dated August 14, 2008, which appointed Dr. Edward L. Kelly to conduct an independent evaluation of Respondent.
6. Dr. Lynne Sullivan completed a Sexually Dangerous Individual Evaluation on August 22, 2008. Sullivan also prepared a Sexual Dangerous Individual Evaluation Addendum on September 17, 2008, and an unsigned and undated one page document entitled "[R.J.V.] Serious Difficulty Controlling Behavior." Dr. Kelly completed his Independent SDI Evaluation on January 19, 2009.
7. Respondent's commitment hearing was held Friday, May 29, 2009, with the testimony of Dr. Kelly being taken by telephone on Monday, June 1, 2009. Mr. Byers was present on both dates representing the interests of the Petitioner. Respondent was present and represented by counsel. The Honorable Robert Wefald was presiding.
8. Judge Wefald issued an Order on Petition for Commitment of a Sexually Dangerous Person on June 2, 2009. Judge Wefald found Respondent to be a "sexually dangerous individual" and ordered Respondent to be placed in the custody of the executive director of the Department of Human Services. Respondent appeals the District Court's Order on Petition for Commitment of a Sexually Dangerous Individual, arguing the District Court's order was not based on clear and convincing evidence.
9. On April 29, 2011, Respondent filed an Application to Request Discharge. Pursuant to the Application, a hearing was held on February 22, 2012. On April 11, 2012, an Order Continuing Commitment was entered by the Sheridan County District Court, the Honorable Sonna Anderson, presiding. Following a July 10, 2012, Order Extending Time for Filing Appeal, Respondent filed a Notice of Appeal on August 7, 2012, to the North Dakota Supreme Court.
10. STATEMENT OF FACTS.
11. Respondent is a 69 year old male with four adult children. In 2003, an officer with the North Dakota Bureau of Criminal Investigation executed a search warrant on Respondent's home for an unrelated firearms charge. During the search, the officer found sexually explicit photographs under a pillow on Respondent's bed. The photographs pictured H.M., one of Respondent's three adult daughters. DNA analysis was performed and established with over 99.99 per cent certainty that Respondent fathered two children with H.M.
12. In light of Respondent's incestuous relations, interviews were conducted with his acquaintances. Respondent's grand son reported that when he was 6 or 7 years old, he was forced to stroke Respondent's penis for 5 to 10 minutes. The ex-husband of J.M. reported that Respondent had threatened him with a firearm and fathered a child with P.P., another of Respondent's adult daughters. Respondent's ex-wife reported that he had beat and threatened her when they were married. The current boyfriend of respondent's ex-wife reported that his children were sexually abused when they were minors. Respondent's daughter, L.K., reported that she was born to a 17 year old mother who was impregnated by Respondent when at the time he was 34 years old. L.K. also reported that Respondent physically abused her when she was young and that she was once walked in on Respondent unzipping his pants behind a naked, bent over H.M. L.K. later denied stating that H.M. was naked.
13. Following the investigation Respondent 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, 9-10 year old grandson who was also Respondent's son. Respondent 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 Respondent's gross sexual imposition conviction, that Respondent sired three children with two of his daughters, that Respondent sexually abused his daughters as minors, that Respondent conceived a child with a 16 year old girl in Maine and that Respondent promoted obscenity to a minor by showing pornography to his 9-10 year old grandson/son.
14. LAW AND ARGUMENT.
15. A respondent "has the right to an appeal from an order of commitment or an order denying a petition for discharge." N.D.Cent.Code § 25-03.3-19. The North Dakota Supreme Court reviews civil commitments of sexually dangerous individuals under a modified clearly erroneous standard. Matter of R.A.S., 2008 ND 185, ¶5, 751 N.W.2d 771. See N.D.Cent.Code § 25-03.3-18(4). The Court affirms the District Court's decision unless that Court's Order is induced by an erroneous view of the law or the order is not supported by clear and convincing evidence. R.A.S. 2008 ND 185, ¶5, 756 N.W.2d 771 (citing Matter of E.W.F., 2008 ND 130, ¶8, 751 N.W.2d 686). See N.D.Cent.Code § 25-03.3-18(4).
16. The District Court's Order is not supported by clear and convincing evidence. "At any hearing pursuant to a petition for discharge, the burden of proof is on the state to show by clear and convincing evidence that the committed individual remains a sexually dangerous individual." N.D.Cent.Code § 25-03.3-18(4) (emphasis added). To meet its burden, the state is required to show the committed individual is one who: (1) has engaged in sexually predatory conduct; (2) has a congenital or acquired condition that is manifested by a sexual disorder, personality disorder, or other mental disorder or dysfunction; and (3) is likely to engage in further acts of sexually predatory conduct which constitute a danger to the physical or mental health or safety of the victim of the conduct. N.D. Cent.Code § 25-03.3-01(8). This Court has held "likely to engage in further acts of sexually predatory conduct" means "the individual's propensity towards sexual violence is of such a degree as to pose a threat to others." Matter of E.W.F., 2008 ND 130, ¶10, 751 N.W.2d 686, Grosinger v. M.B.K., 2002 ND 25, 639 N.W.2d 473. The State did not present clear and convincing evidence with regard to any of the three factors upon which North Dakota statute and this court mandate a finding that an individual is sexually dangerous and must be predicated. Therefore, a finding of the district court that Respondent remained a sexually dangerous individual was made in error.
17. At a discharge hearing the state has the burden or proof to show by clear and convincing evidence that Respondent remains a "sexually dangerous individual." A "sexually dangerous individual is defined as (1) an individual who is shown to have engaged in sexually predatory conduct and (2) who has a a congenital or acquired condition that is manifested by a sexual disorder, personality disorder, or other mental disorder or dysfunction; and (3) is likely to engage in further acts of sexually predatory conduct which constitute a danger to the physical or mental health or safety of others and (4) the respondent has serious difficulty controlling his behavior.
18. Both experts agreed that the evidence in this case is clear and convincing that Respondent meets the requirements of Prong I. The record shows that Respondent fathered his daughter, L.K., when he was 34 and L.K.'s mother was 16. The record also shows that he had sexual contact with his grandson, who was 6 or 7 at the time. In both cases, Respondent was an adult and the victim was a minor. Respondent's sexual conduct with the victims meets the definition of "sexually predatory conduct." Prong I is met and that Respondent has committed sexually predatory conduct. The experts disagree as to this prong. Dr. LIsota make the diagnosis of Axis I Paraphilia NOS, and Axis II Personality Disorder with Antisocial features. Dr. Benson would not find a diagnosis of a disorder that would meet this prong of the inquiry.
19. At Respondent's initial hearing in 2010, Dr. Lynne Sullivan was the state's expert examiner. Dr. Sullivan diagnosed Respondent with Axis I, Paraphilia NOS and Axis II Personality Disorder NOS with Antisocial Features. In preparation for the February 22, 2012, hearing, Dr. Lisota reviewed the prior report and Respondent's record of treatment and testified that he agreed with Dr. Sullivan's prior diagnosis, and that in his professional opinion, Respondent continued to have a diagnosis of Paraphilia NOS, and Personality Disorder NOS with antisocial features and continues to meet criteria for Prong II. Dr. Lisota testified that Respondent is a difficult person to diagnose as he seems to be attracted to a variety of sexual victims of various ages and both genders. Dr. Lisota testified that Respondent cannot be diagnosed with Antisocial Behavior as the diagnosis requires an onset prior to age 15, and there is no history of Respondent's actions before age 15.
20. Dr. Benson disagrees that both Dr. Lisota and Dr. Sullivan. In Dr. Benson's professional opinion, Respondent suffers from Dysthymic Disorder, Alcohol Dependence, currently in remission in a controlled setting and Antisocial traits. None of these diagnoses would qualify as a sexual or mental disorder to satisfy Prong II. In Dr. Benson's profession opinion, Respondent does not meet the criteria for Prong II and should be released.
21. Respondent was found to have been diagnosed with these disorders at the prior hearing when he was found to be a sexually dangerous individual. The court is not aware of anything that has changed the opinion of either of the professionals. Dr. Benson disagreed then and continues to disagree with the state's expert as to the diagnosis.
22. The Court found that Dr. Lisota's testimony to be supported by the evidence and found that Respondent meets Prong II of the criteria for continued commitment.
23. Dr. Lisota's diagnosis is not clear and convincing evidence that Respondent still suffers from Paraphilia. He seems to suggest that because he sees no "evidence to the contrary, that he still suffered from Paraphilia NOS."
24. Dr. Benson was "clearer" and more convincing in her diagnosis:
25. "Diagnostically, Mr. Voisine also presents an interesting an unusual case. Mr. Voisine's diagnosis, as argued by NDSH experts, consist of two "NOS" diagnosis. The "NOS" category means "Not otherwise specified" and is reserved for use in those cases in which the person presents with an unusual and/or complex presentation such that it is not included in the DSM-IV TR, but where the clinician believes that a true mental disorder does exist. There is no objective criteria for diagnosing an NOS diagnosis, thus different clinicians can vary widely in their approach to making this diagnosis and it is not possible to go through criteria by criteria (as is the case on all other mental disorders listed in the DSM) and assert a factual basis for making this diagnosis. The NDHS evaluation by Dr. Lisota indicates that a diagnosis of Paraphilia NOS is appropriate because Mr. Voisine has "demonstrated sexual arousal to different categories of paraphilias." Dr. Lisota bases this on alleged sexual offenses, rather than on the information from the court records. The allegations against Mr. Voisine, other than his index offense, were never found credible by a court of law and Mr. Voisine denies them. It is a matter of clinical opinion whether or not this information can be used. Beyond that, it is a matter of opinion regarding whether or not it constitutes a paraphilia. Dr. Lisota and I disagree on this prong. I refer the reader to Dr. Kelly's 2009 Independent evaluation wherein he discusses some alternative explanations other than sexual deviance for Mr. Voisine's behavior. Dr. Lisota also diagnosed Mr. Voisine with Personality Disorder NOS with Antisocial Features. The evidence provided by Dr. Lisota for this diagnosis is that Mr. Voisine has a lengthy criminal history and that he lacks remorse because he denies sexually abusing anyone. The use of the Personality Disorder NOS is reserved for two distinct situations. The first would be if a person's pattern of personality meets the general criteria for a Personality disorder and traits of several different Personality Disorders are present, but criteria for any single personality disorder are not met. The second situation would be if the personality pattern meets the general criteria for a Personality Disorderly, but the Personality Disorder is not included in the DSM Classification (e.g., depressive Personality disorder). It is not entirely clear to me by his narrative which of the two Dr. Lisota is asserting. Dr. Lisota describes that Mr. Voisine demonstrates some features of the Antisocial Personality Disorder, but he does not meet criteria for a full diagnosis.
I offer the following diagnoses:
Alcohol dependence, currently in remission in a controlled environment
Dr. Lisota and I are identifying the same behavior constellations as problematic, but are differing in our diagnosing of same. A notation of Antisocial traits means that the person has some significant traits of Antisocial Personality Disorder, but not enough to warrant a full diagnosis.
In my opinion, none of the diagnosis I offer rise to the level of what is required under N.D.C.C. for Civil Commitment. This is an unusual situation. I have been doing these evaluations since 2004 and this is the first time I have found someone not to meet this prong on an annual review."
26. Prong II was not supported by clear and convincing evidence. It is also on the third prong that the State fell short of clear and convincing evidence. Dr. Lisota submits his analysis with the comment that Respondent's "disorder (Paraphilia NOS) predisposes Mr. Voisine to engage in future sexually predatory conduct." He cites no studies or research to support his conclusion. Dr. Lisota then ignores the results of the Risk Assessment instruments and concludes that they are only the baseline level of risk. He failed to score Respondent on these basic risk assessment instruments. All evaluations use these instruments to determine whether they need to use clinical judgment.
27. Dr. Benson scored Respondent on the MnSOST-R and received a score of -4. This equates to an "extremely low' level of risk. (Tr.p. 47, ll 20-25; p.48, ll 1-5). Both evaluations scored Respondent as a -2 on the Static-99R. (Tr.p. 44, ll. 11-16). Once again, a "low" score of risk. (Dr. Benson's report, p. 28). Therefore, on both actuarial risk assessment instruments, Respondent scored at a low and extremely low risk of re-offending in a sexual manner. Normally, that should end the inquiry and this court should rule that there was no "clear and convincing" evidence to support Prong III.
28. This court has ruled that experts can use their clinical judgment to override the results of the test instruments. Dr. Lisota tried to state his override by starting with the "diagnosis" of antisocial behavior. He agreed with Dr. Benson that Respondent did "not meet full criteria for that disorder." (Tr.p. 42, ll. 21-25). Dr. Benson expressed her disagreement with Dr. Lisota's opinion:
29. ". . . as I understand, that even though he does not meet full criteria for that disorder we can diagnose him with Paraphilia NOS with Antisocial Traits. That was not done by any other doctor, and I'm - - it's an interesting argument that I would be interested in hearing other people lay in on. Because basically what you're saying is, he doesn't meet criteria for Antisocial Personality Disorder, so I'm going to call it Personality NOS. I don't - - in my opinion that's not an appropriate use. What I diagnosed him with is Antisocial Traits which state he does show some signs and symptoms, but they're subthreshold.
Q. So subthreshold means it doesn't meet the - -
A. Doesn't meet criteria.
Q. - - APA or DSM - -
Q. - - DMS - IV criteria - -
A. DSM - IT - TR, correct."
30. Tr.p. 43, ll. 1-17).
31. Dr. Benson's diagnosis, and how to proceed with it, more closely aligns itself with the DSM-IV.
32. Dr. Benson also disagreed with Dr. Lisota's use of clinical judgment to override the low scores on the risk assessment instruments:
33. "Q. Why do you disagree that needs to be overriden by clinical judgment?
A. Well, I think it's important to state that even if we do override it, and we add those three points back in and assume that his risk is similar to that of individuals between - - I believe that would put it between age 35 and 39 - - his risk still only raises to the low-moderate age. So even if we add all those points that we subtracted for age back in, we're still not higher than that. In my opinion, I did not override the - - did not override the actuarials. I scored them as they were intended to be scored with age subtracted as age is intended to be subtracted per the coding rules per the manual."
34. (Tr.p. 44, ll. 20-25; p. 45, ll. 1-7).
35. Dr. Benson also felt that Respondent's age (69) was another relevant factor in determining future risk. (Tr.p. 45, ll. 22-25; p. 46, ll. 1-7). Dr. Lisota tried to carve out an exception to the general rule that age of offender decreases the future risk of re-offending; which was against the research conducted by Dr. Doren, the pre-eminent authority in his field.
36. Finally, Dr. Benson stated that incest offenders, such as Respondent, re-offend at the lowest rate. She suggested that the risk instrument "would over predict his risk." (Tr.p. 48, ll. 21-24). Dr. Lisota did not provide any support for why he disagreed with Dr. Benson's significant finding of low risk.
37. Dr. Lisota explained his conclusion of the third prong:
38. "Q. So as to Prong 3, whether he's likely to commit another act of sexually predatory act upon release, what is your opinion on that? Whether he's likely to do that?
A. I believe he is likely to engage. He's constructed a really elaborate and sort of extreme network of supportive family members that are also supportive of his incestuous activities, and he was performing inappropriate sexual behavior as recent as 2003 which was when he was arrested."
39. Tr.p. 18, ll 2-9).
40. Finally, Dr. Lisota concluded:
41. "Q. Is it your opinion that Raymond Voisine still meets the criteria of what is defined in statute as a sexually dangerous individuals?
A. Yes, he has done nothing of - - nothing substantial to reduce his risk for re-offense via treatment."
42. (Tr.p. 19, ll. 19-23).
43. Finally, Dr. Benson concluded that Respondent would not have serious difficulty controlling his behavior if released. (Tr.p. 57, ll. 16-25; p. 58, ll. 1-15).
44. Dr. Lisota based his conclusion of serious difficulty solely on the fact that Respondent has failed to significantly progress in the treatment program. (Tr.p. 19, ll. 19-23). His conclusion is based upon a reduction of risk. However, if the statistically produced risk through assessment instruments is low, should one have to reduce the risk through treatment to be enough risk to be released?
46. The state did not prove by clear and convincing evidence that Respondent should remain in continued commitment. The case should be remanded to the court for further proceedings.
|Dated this 5TH day of November, 2012.|
|/s/ Kent M. Morrow|
|Kent M. Morrow ID#03503|
|411 N. 4th Street #6|
|Bismarck, ND 58501|