Erickson v. Rubey, 2013 ND 190

Background

Larry Rubey was previously convicted of sexual offenses (1988; 1999) and committed as a sexually dangerous individual in 2010; prior appeals affirming commitment and a 2011 discharge denial.
Rubey petitioned for discharge in September 2012; the district court limited the annual-review hearing to whether he remains a sexually dangerous individual and to evidence showing changes since the last review.
Two experts testified: State’s expert Dr. Lynne Sullivan (opinion: Rubey remains high short-term risk and has serious difficulty controlling behavior) and Rubey’s evaluator Dr. Stacey Benson (opinion: risk reduced to moderate, age and MS mitigate risk, no recent sexual acting out).
The district court preferred Dr. Sullivan’s testimony and denied discharge, concluding Rubey remains a sexually dangerous individual.
Rubey appealed both the evidentiary limitation and the merits; this Court affirmed the denial of discharge and declined relief on the evidentiary limitation because Rubey failed to make offers of proof showing prejudice.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the court abused discretion by limiting evidence at the annual-review hearing	Rubey: limitation improperly barred evidence on element two (condition) and other matters	State: first two statutory elements are res judicata from prior adjudication; scope may be limited to changes since last review	Court: affirmed limitation review standard; unable to find abuse of discretion because Rubey failed to make offers of proof showing prejudice
Whether Rubey still meets statutory elements for civil commitment (element 1: past sexually predatory conduct)	Rubey: concedes past conduct is res judicata and not relitigable	State: prior adjudication establishes element one	Held: element one is res judicata and established
Whether Rubey meets element two (congenital/acquired condition manifested by sexual/personality/mental disorder)	Rubey: argued he should be allowed to present evidence challenging element two	State: element two established by prior findings and experts largely agree	Held: parties’ experts agreed on element two; court could not review evidentiary-limitation error without offer of proof
Whether Rubey is likely to reoffend / has serious difficulty controlling behavior (elements three and four)	Rubey: argues age, MS, treatment progress and recent behavior show low risk and adequate control	State: argues Rubey remains high short-term risk, limited treatment progress, continuing behavioral concerns	Held: court credited State’s expert; clear and convincing evidence supports that Rubey remains sexually dangerous; denial of discharge affirmed

Key Cases Cited

State v. Rubey, 2000 ND 119, 611 N.W.2d 888 (affirming Rubey’s 1999 conviction) (procedural history)
In re Rubey, 2011 ND 165, 801 N.W.2d 702 (affirming commitment) (prior commitment appeal)
In re Rubey, 2012 ND 133, 818 N.W.2d 731 (affirming prior denial of discharge) (precedent on res judicata and review)
State v. Lutz, 2012 ND 156, 820 N.W.2d 111 (motion in limine standard) (abuse of discretion review)
Williston Farm Equip., Inc. v. Steiger Tractor, Inc., 504 N.W.2d 545 (N.D. 1993) (party must make offer of proof after exclusion)
Perius v. Nodak Mut. Ins. Co., 2012 ND 54, 813 N.W.2d 580 (showing prejudice from exclusion required)
Gorsuch v. Gorsuch, 392 N.W.2d 392 (N.D. 1986) (need for offer of proof to preserve appellate review)
Interest of G.L.D., 2011 ND 52, 795 N.W.2d 346 (standard of review and deference to credibility in commitment cases)
In re Vantreece, 2009 ND 152, 771 N.W.2d 585 (statutory elements and due process in discharge petitions)
Matter of G.R.H., 2006 ND 56, 711 N.W.2d 587 (interpretation of nexus and requirement of serious difficulty controlling behavior)
In re E.W.F., 2008 ND 130, 751 N.W.2d 686 (constitutional inquiry into difficulty controlling behavior)