Lead Opinion
[¶ 1] Garrett Alan Loy appealed from an order civilly committing him as a sexually dangerous individual. We affirm.
I
[¶ 2] In 2004, Loy was convicted of gross sexual imposition. In 2005, Loy pleaded guilty to a separate charge of gross sexual imposition and his probation from his 2004 conviction was revoked. Loy was sentenced to ten years in custody with five years suspended for the 2004 conviction, and sentenced to ten years in custody with five years suspended for the 2005 conviction, to be served consecutively. Loy was also required to complete the Intensive Sex Addiction Treatment Program. He was evaluated for referral to the North Dakota Department of Corrections and Rehabilitation’s sex offender treatment program, and completed the low intensity program in 2006, as well as the intensive offender treatment program in 2012. Prior to his release, the North Dakota Department of Corrections and Rehabilitation did not recommend civil commitment. However, Dr. Lisa Peterson evaluated Loy and was concerned he could become involved in further acts of sexual misconduct following release based upon Loy’s inability to control his hyper-sexuality and his future access to potential victims. Dr. Peterson recommended transitional treatment with gradual reintegration into the general populace.
[¶ 3] The State filed a petition to involuntarily commit Loy as a sexually dangerous individual. Prior to the commitment hearing, Dr. Lynne Sullivan submitted an evaluation to the district court on behalf of the State, determining Loy suffers from hypersexuality and other specified para-philic disorder, hebephilia. The diagnosis concluded Loy was at a high risk of engaging in further acts of sexually predatory conduct.
[¶ 4] Prior to the commitment hearing, Loy was found indigent and was granted a court-appointed attorney. Loy moved for appointment of an indepеndent mental health evaluator as an indigent, which was also granted. Loy later dismissed his court-appointed counsel and hired private counsel. The district court required Loy provide a financial affidavit based on his ability to hire private counsel, and found Loy had $2,800 in assets and ordered him to pay $2,700 toward the expense of his independent evaluation. Loy moved to substitute the court-appointed evaluator with his own independent evaluator, which was denied.
[¶ 5] Dr. Gregory Volk was appointed by the district court to provide an independent evaluation of Loy. Dr. Volk diagnosed Loy with other specified paraphilic disorder, hebephilia, unspecified depressive disorder, and other specified personality dis
[¶ 6] Dr. Sullivan and Dr. Volk testified during the commitment hearing. At the time of Dr. Sullivan’s testimony, her license with the North Dakota State Board of Psychologist Examiners was under probation. Loy moved to prohibit Dr. Sullivan’s testimony arguing she was not a qualified expert witness. The district court denied the motion. Dr. Volk testified that Loy’s failure to partially pay Dr. Volk for Loy’s independent evaluation indicated a raised risk level in disobeying a court order. Loy moved to exclude Dr. Volk’s testimony as an expert witness due to alleged bias. The motion was denied. Loy moved to allow Rodney Ireland, a person currently committed as a sexually dangerous individual, testify about the treatment received аt the North Dakota State Hospital. The motion was also denied by the district court.
[¶ 7] The district court determined there was clear and convincing evidence Loy remains a sexually dangerous individual and ordered that he be committed to the custody of the North Dakota Department of Human Services. The district court specifically stated Loy’s failure to pay Dr. Volk as a sign of increased risk was not a pivotal factor in determining whether Loy should be released, and amended its prior order deleting his requirement to pay for the independent evaluation.
[¶ 8] On appeal, Loy argues the district court erred in allowing the testimony of Dr. Sullivan and Dr. Volk as expert witnesses, erred in denying Loy the right to choose an independent evaluator at the State’s expense, erred in denying Loy’s witness from testifying about treatment conditions, and erred in finding clear and convincing evidence exists that he remains a sexually dangerous individual.
II
[¶ 9] Commitment proceedings for sexually dangerous individuals are civil proceedings. In re M.D.,
[¶ 10] The State must prove by clear and convincing evidence the committed individual remains a sexually dangerous individual. N.D.C.C. § 25-03.3-18(4); In re G.L.D.,
(1) the individual has engaged in sexually predatory conduct; (2) the individual has a congenital or acquired condition that is manifested by a sexual disorder, a personality disorder, or other mental disorder or dysfunction; and (3) the disorder makes the individual likely to en*505 gage in farther acts of sexually predatory conduct.
Id. The State must also prove a constitutionally required element that the individual has “serious difficulty controlling his behavior.” Id. at ¶ 10.
III
[¶ 11] Loy argues the district court erred in allowing Dr. Lynne Sullivan to testify as a qualified expert witness because her licensure was under probation. A “qualified expert” in an action civilly committing a sexually dangerous individual means “an individual who has an expertise in sexual offender evaluаtions and who is a psychiatrist or psychologist trained in a clinical program and licensed pursuant to this state’s law or a psychologist approved for exemption by the North Dakota board of psychologist examiners.” N.D.C.C. § 25-03.3-01(4). An expert witness is also defined as “a witness who is qualified as an expert by knowledge, skill, experience, training, or education” who “may testify in the form of an opinion or otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.” N.D.R.Ev. 702.
[¶ 12] It is not disputed that Dr. Sullivan was licensed by the North Dakota State Board of Psychologist Examiners. A licensure subject to probation does not nullify the license, and Dr. Sullivan meets both the statutory and evidentiary standard required to testify. Her probationary status is an issue of weight and credibility as to her testimony, and not an issue of admissibility. The district court did not abuse its discretiоn in admitting Dr. Sullivan as a qualified expert witness.
IV
[¶ 13] Loy argues the district court erred by denying him the right to have an independent examination be performed by a qualified expert at no expense. After a finding of probable cause to believe the respondent is a sexually dangerous individual, North Dakota requires an evaluation be conducted by an expert to determine “whether the respondent has a congenital or acquired condition that is manifested by a sexual disorder, personality disorder, or other mental disorder or dysfunction that makes the respondent likely to engage in further acts of sexually predatory conduct.” N.D.C.C. § 25-03.3-11. “[A] respondent may retain an expert to perform an evaluation or testify on the respondent’s behalf,” and in the case of an indigent respondent, “the court shall appoint a qualified expert to perform an examination or participate in the commitment proceeding on the respondent’s behalf.” N.D.C.C. § 25-03.3-12. The statute does not give an indigent respondent the right to choose the independent evaluator. In re B.V.,
[¶ 14] Loy was originally granted indigent status, and Dr. Volk was appointed by the district court to perform an independent examination on Loy’s behalf. Pri- or to submission of Dr. Volk’s evaluation with the district court, Loy’s indigent status was amended due to his retention of private counsel and submission of a financial affidavit indicating the ability to partially pay $2,700 toward the evaluation’s costs. Loy moved to substitute Dr. Volk with another independent evaluator. The district court denied the motion and received Dr. Volk’s evaluation that same day. Dr. Volk’s evaluation did not indicate any reference to Loy’s inability to pay for the evaluation as a risk factor. At the hearing, Dr. Volk did testify that Loy’s inability to pay for the evaluation indicated a raised risk assessment due to his failure to follow a court order.
V
[¶ 16] Loy argues the district court erred in allowing Dr. Volk to testify as a qualified expert witness due to his alleged bias against Loy. The district court’s order refеrenced Dr. Volk’s testimony as follows:
Dr. Volk indicated that the Respondent’s failure to comply with a court order to partially pay for the independent evaluation he had requested indicated to him a raised risk level, as it indicated a continuing lack of responsibility, and that that irresponsibility was new post-report information. The court determines, however, that this factor is not pivotal in determining whether or not the Respondent should be released at this timе for continued monitoring and further sex offender treatment, or whether he needs additional in-patient sex offender treatment prior to release.
[¶ 17] We have previously held that issues regarding an alleged violation of professional ethics or rules of a profession, including conflicts of interests, have no bearing on the admissibility of an expert witnesses’s testimony, but rather affect the weight given that opinion. In re O.H.W.,
[¶ 18] The district court found Dr. Volk’s testimony at the hearing was apparently shaped in part by an outstanding debt allegedly owed by Loy to Dr. Volk. However, this concerns the weight of Dr. Volk’s testimony, and the district court order clearly indicates the alleged conflict was not a pivotal factor in the final decision. The district court did not abuse its discretion by allowing Dr. Volk to testify.
VI
[¶ 19] Loy argues the district court erred by denying Mr. Rodney Ireland from testifying at Loy’s hearing. Rule 401, N.D.R.Ev., provides: “[e]vidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” “Irrelevant evidence is not admis
VII
[¶ 20] Loy argues the district court erred in determining the State had satisfied its burden of proving by clear and convincing evidence that he remains a sexually dangerous individual. This argument is based on Dr. Sullivan’s lack of an in-person interview of Loy, her failure to diagnose Loy under a specific psychоlogical exam using specific metrics, her alleged erroneous diagnosis of Loy, and Dr. Volk’s testimony and evaluation supporting Ley’s transition back into society.
[¶21] Here, evidence supports a conclusion that the State proved by clear and convincing evidence that Loy continues to be a sexually dangerous individual. Dr. Sullivan’s lack of a personal interview does not bar her diagnosis, and goes to the weight of the evidence and not its admissibility. See In re J.M.,
VIII
[¶22] We affirm the district court’s civil commitment order.
Dissenting Opinion
dissenting.
[¶24] I respectfully dissent from the majority opinion.
[¶ 25] To deprive a person of his liberty for an indefinite period of time in the civil commitment of a sexually dangerous
[¶ 26] I noted in my dissent in Interest of Maedche that although this Court has held the commitment laws of our state are civil in nature, our sexual predator commitment laws have to be regarded as punitive, and we must provide the usual protections that are afforded to a criminal defendant. Maedche,
[¶27] Due process requires the сonfinement’s duration and conditions bear some reasonable relation to the purpose for which the individual has been committed. Matter of G.R.H.,
[¶ 28] In Dr. Volk’s initial evaluation of Loy, Dr. Volk concluded Loy had a moderate to high level of risk to reoffend, but if appropriate levels of supervision could be maintained, it was likely Loy could make an adequate adjustment in the community. Dr. Volk’s initial evaluation did not indicate any reference to Ley’s inability to pay for the evaluation as a raised risk factor. However, Dr. Volk testified at the hearing that Loy’s inability to pay for the independent evaluation indicated a raised risk assessment due to his failure to follow a court order:
Q. [Atty. Wamstad]: Any new information you obtained since you completed that report?
A. [Dr. Volk]: The new information I would have is just — since it’s been sort of a course of time here since I completed the evaluation last spring, the one thing that I would add is that there are factors that would plainly contribute to an overall increase in the risk rating. And I believe — my understanding is that behavior wise, things have — there have been just some minor incidents. However, and I sort of don’t necessarily like to bring this up, necessarily, because it is probаbly a difficult subject in some ways, but there is the matter of financial obligations. And so Mr. Loy has an*509 outstanding bill to our office for $2,700. And it’s not about the finances of that, but part of the risk assessment process, looking at financial responsibility as well as (indiscernible) responsibility and he has chosen not to pay that at this point in time, which, again, is less of the issue and in terms of the overall picture of the fact that it does show that there’s a lack of responsibility to follow through with obligations. The other piece, I think, is maybe even more concerning for me is that was a court-ordered obligation. So I think that that increases the level of risk because it shows that he is not in compliance with a directive through the Court, which increases risk because it would suggest that he may not be in compliance with any kind of recommendations or anything that would be occurring through the court system if he were released into the community.
Loy moved to exclude Dr. Vоlk’s testimony as an expert witness due to alleged bias, and the district court denied his motion. In its order, the district court specifically noted that Dr. Volk’s testimony regarding Loy’s failure to partially pay for the evaluation was “not pivotal” in its determination of whether Loy should be released.
[¶ 29] I agree with the majority’s finding in ¶ 15 that “[t]he district court’s order requiring partial payment by Loy for his independent evaluation was based on an erroneous view of the law.” However, I disagree with the majority that the district court’s prior order requiring payment was harmless error under the circumstances. Dr. Volk testified Loy’s risk level was raised because of an alleged failure to partially pay for the evaluation; this was due, in part, to the district court’s erroneous prior order requiring Loy to partially pay for Dr. Volk’s independent evaluation. In ¶ 18, the majority acknowledges, “[t]he district court found Dr. Volk’s testimony at the hearing was apparently shaped in рart by an outstanding debt allegedly owed by Loy to Dr. Volk.” However, the majority ultimately found that the district court did not abuse its discretion by allowing Dr. Volk to testify because the court’s order clearly indicated the alleged conflict was not “pivotal” to the court’s final decision. The process of civilly committing sexually dangerous individuals involves a serious deprivation of liberty, and that process should not be tainted. Here, the district court found Dr. Volk’s testimony was apparently shaped, in part, by an outstanding debt allegedly owed by Loy to Dr. Volk. Loy, an indigent person who qualified for a court-appointed expert witness, was assessed as having an increased risk of reof-fending by virtue of his “lack of responsibility to follow through with obligations.” This was an obligation that was improper to impose on him in the first place — compounded by the fact that his inability to pay was treated by that expert as related to his sexual dangerousness. While the court stated the alleged conflict was “not pivotal” to its decision, I conclude the cumulative effect of the admittance of Dr. Volk’s biased testimony, along with the court’s erroneous view of the law regarding Loy’s partial payment for the evaluation, so tainted the process as to require reversal and a remand for a new hearing.
[¶ 30] As an appellate court, we disregard errors which do not affect substantial rights (harmless errors), while we must cоnsider errors objected to at trial that were prejudicial (reversible errors) and errors “so fundamental that a new trial or other relief must be granted even though the action was not objected to at the time” (obvious errors). See Commentary, N.D.R.Crim.P. 52. “The mere quantity of alleged errors is not in itself the measure for reversal.” State v. Ebach,
[¶ 31] CAROL RONNING KAPSNER
Dissenting Opinion
dissenting.
[¶ 32] I respectfully dissent for many of the reasons articulated by Justice Kaps-ner. While I do not agree with her that sexual dangerous individual cases are the equivalent of criminal proceedings, I do agree tenets of due process are violated when a respondent is improperly required to pay for expert witness services and the witness modifies his testimony adverse to the respondent after the improper bill is not timely paid. I too would remand for a new hearing.
[¶ 33] DANIEL J. CROTHERS