dissenting.
[¶ 18] Nelson G. Whitetail, Sr. committed terrible crimes against two children in 1988 and again in 1997. For those crimes, he has received the punishments exacted by the criminal justice system. I respectfully dissent because it is clear from the evidence that this civil commitment is based upon his past crimes and not upon his present status.
[¶ 19] We have said that a finding is clearly erroneous when there is no evidence to support it. See, e.g., In re S.R.B., 2013 ND 109, ¶ 29, 832 N.W.2d 42. The evidence offered in this case does not establish that Whitetail is presently a sexually dangerous individual.
[¶ 20] As acknowledged by both experts, Whitetail satisfies the first two prongs of the statute. However, to deprive Whitetail of his freedom in a civil commitment, the State must prove that he is today, not in 1997, an 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. In re A.M., 2010 ND 163, ¶ 13, 787 N.W.2d 752. The burden is on the State and the burden is by clear and convincing evidence. N.D.C.C. § 25-03.3-13. The burden is to show that the respondent is a sexually dangerous individual, not that he was a sexually dangerous individual. Id. Not only was this burden not met by the evidence presented, but the court seems to suggest that the burden is on the respondent to prove that he will not act in conformity with his past crimes. The district judge stated:
Dr. Krance concedes Mr. Whitetail has not demonstrated serious difficulty controlling his sexual behavior while in a treatment setting, but he has shown serious difficulty in a less restrictive environment by committing further sexual offenses while on probation, after sex offender treatment and incarceration for the very same offenses on the very same victims. His track record speaks for itself. Dr. Krance notes Mr. Whitetail acknowledged in treatment he would have continued sexually offending against his female victims had he not been caught. Mr. Whitetails’ behaviors over the years are indicative of serious difficulty controlling his behavior and it would be important for him to demonstrate an ability to do so in a less restrictive environment before being released, once again, to the community.
[¶ 21] The district judge is relying on Whitetail’s criminal history, the last event of which occurred in 1997. “The Court finds Mr. Whitetail has demonstrated serious difficulty controlling his disorders and will continue to do so. Mr. Whitetail’s re-offense is paramount in this Court finding.” Dr. Krance, the State’s expert, similarly acknowledged that she is reliant primarily on his sexual crimes that occurred 15 years before the hearing on this civil commitment.
Q Okay. But primarily your concern is serious difficulty and in controlling behaviors, sexual reoffending shortly after his release?
A Yes.
Q That’s the primary reason for your opinion?
A Yes, I would say that.
*834[¶22] The State’s expert noted that even having received sex offender treatment during his first incarceration, Whitetail offended with the same victims after his release. This important piece of information would surely weigh heavily if it were supported by current information that fulfilled the third factor (likely to engage in further acts of sexually predatory conduct which constitutes a danger to others) and the requirements of Kansas v. Crane, 534 U.S. 407, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002) (having serious difficulty controlling his behavior).
[¶ 23] Both the court and the State’s expert focused on fifteen-year-old information while ignoring other, uncontradicted information presented that Whitetail has demonstrated ability to control and to learn to control his actions. Dr. Krance’s report diagnosed Whitetail with “Alcohol Dependence Sustained Full Remission, In a Controlled Environment.” She asserted a relapse “could increase his risk of engaging in sexually predatory conduct....” Yet, on cross-examination, Dr. Krance acknowledged there was no indication that Whitetail had abused alcohol since 1986 or that it had played any part in his re-offense:
Q Okay. Now, you indicated in terms of alcohol dependence that his self-reporting is, he’s not abused alcohol since 1986.
A I believe 1987 is what I have, yeah.
Q Okay. So last 25 years he hasn’t. Whether it’s been in a controlled setting or not, there has been no alcohol abuse?
A That we’re aware of, yes.
Q Including ten years that he was out, or the period of time that he was out in the community before he reof-fended?
A That’s to the knowledge that I have, yes, there was nothing indicated that he was abusing alcohol or cannabis.
[¶ 24] Dr. Krance was questioned about Whitetail’s prison record:
Q Okay. And essentially, his ability to control his behavior in general is pretty limited. I mean, his ability to control it has been demonstrated in the penitentiary by his limited disciplinary history?
A I would agree with that, that he has an ability to follow the rules. He has demonstrated that, yes.
[¶ 25] Dr. Krance’s testimony was that she did not know the difference between the sex offender treatment Whitetail received during his first incarceration and that received during his second term. However, she recognized some apparent effects from the later treatment, which was a three-year-long, five-stage treatment Whitetail completed five months before the hearing:
Q Okay. And his colleagues of the sexual offender treatment indicate some self-awareness of his difficulty in controlling sexually. He has developed tools to manage his risk?
A Yes, I would agree that there is some awareness of that, if he was aware of completing that, yes.
Q Part of the record indicates that he became a somewhat leader in the program?
A Yes.
Q And helpful to other inmates going through the same process?
A That’s true.
Q And he recognized his offending?
A Yes, I believe so.
However, she would not consider the sex offender treatment in the penitentiary in 2009 through 2012 beneficial because of his 1997 offenses. The district court accepts this reasoning, making this civil commitment simply an extension of the punish*835ment for his past crimes, not an effort to address his current status.
[¶ 26] The district court’s finding on Whitetail’s lack of ability to control his behavior is:
The Court finds Mr. Whitetail has demonstrated serious difficulty controlling his disorders and mil continue to do so. Mr. Whitetail’s re-offense is paramount in this Court finding. Mr. Whitetail continued to show his Antisocial Personality Disorder with Narcissistic features by accumulating write ups while incarcerated for his second set of offenses and how he acted in his treatment until he was close to seeing the parole board. The Court finds by clear and convincing evidence Mr. Whitetail is a Sexually Dangerous Individual.
[¶ 27] Dr. Krance did not testify at the hearing on any behavioral problems in prison. However, her report notes:
While incarcerated at NDSP, Mr. White Tail did well behaviorally for the most part. However, he did receive an A-43 write up for conduct which disrupted or interfered with the security or orderly running of the institution in 1997 when he refused to do what staff asked him to do on two separate occasions. Mr. White Tail has received various minor infractions for loaning, borrowing, or being in possession of another inmate’s property (three), disobeying a verbal or written order from staff (four), and disorderly conduct (horseplay). To his credit, the last minor rule infraction occurred in January 2010.
[¶ 28] This evidence from Dr. Krance’s report appears to be the write-up on which the district court bases its conclusion that Whitetail will continue to have “serious difficulty controlling his disorders.” This Court must exercise a “modified clearly erroneous” standard of review to commitments under N.D.C.C. ch. 25-03.3 to determine if the findings are supported by clear and convincing evidence. In re G.R.H., 2006 ND 56, ¶ 8, 711 N.W.2d 587. The evidence is neither clear nor convincing.
[¶ 29] Further, we must be concerned with the findings under the constitutional standard announced in Kansas v. Crane:
[Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997) ] underscored the constitutional importance of distinguishing a dangerous sexual offender subject to civil commitment “from other dangerous persons who are perhaps more properly dealt with exclusively through criminal proceedings.” That distinction is necessary lest “civil commitment” become a “mechanism for retribution or general deterrence”— functions properly those of criminal law, not civil commitment.
Crane, 534 U.S. at 412, 122 S.Ct. 867 (internal citations omitted).
[¶ 30] Whitetail had what appears to be a serious write-up in 1997. Dr. Krance describes every other write-up as a “minor infraction,” and the most recent “minor infraction” was two years prior to the hearing.
[¶ 31] Under the modified clearly erroneous standard of review, I am firmly convinced that the State has failed in its burden to show that Whitetail currently meets the statutory criteria for civil commitment under N.D.C.C. ch. 25-03.3. The evidence fails to show that he is dangerous, much less sexually dangerous. It also fails to show that Whitetail currently has serious difficulty controlling his behavior. The State has failed to meet its burden.
[¶ 32] I respectfully dissent.
[¶ 33] CAROL RONNING KAPSNER