FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
NOVEMBER 24, 2023
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2023 ND 218
In the Matter of Lawrence Herbert Didier
Frederick Fremgen, Stutsman
County State’s Attorney, Petitioner and Appellee
v.
Lawrence Herbert Didier, Respondent and Appellant
No. 20230118
Appeal from the District Court of Stutsman County, Southeast Judicial
District, the Honorable Cherie L. Clark, Judge.
AFFIRMED.
Opinion of the Court by Tufte, Justice.
John M. Gonzalez, Assistant State’s Attorney, Jamestown, N.D., for petitioner
and appellee.
Tyler J. Morrow, Grand Forks, N.D., for respondent and appellant.
Matter of Didier
No. 20230118
Tufte, Justice.
[¶1] Lawrence Herbert Didier appeals from an order and judgment denying
his discharge from civil commitment. On appeal, Didier argues the district
court’s factual basis was insufficient to legally conclude he has serious
difficulty controlling his behavior. We affirm.
I
[¶2] Between 1988 and 2008, Didier was convicted of gross sexual imposition
and indecent exposure, and was twice convicted of sexual assault. After a State
petition, the district court ordered Didier committed as a sexually dangerous
individual in November 2010 under N.D.C.C. ch. 25-03.3.
[¶3] Didier petitioned for an annual review hearing under N.D.C.C. § 25-03.3-
18 seeking discharge from civil commitment. Dr. Deirdre D’Orazio, Ph.D., a
doctor of clinical and forensic psychology, submitted a report for the North
Dakota State Hospital stating her expert opinion was that Didier remained a
sexually dangerous individual. The district court held a hearing and
subsequently issued an order and judgment denying Didier’s petition for
discharge from civil commitment.
II
[¶4] Our standard of review for civil commitments is well established: “Civil
commitments of sexually dangerous individuals are reviewed under a modified
clearly erroneous standard. The court’s decision will be affirmed unless it is
induced by an erroneous view of the law or we are firmly convinced the decision
is not supported by clear and convincing evidence.” Matter of Knoke, 2021 ND
240, ¶ 13, 968 N.W.2d 178 (citations omitted).
[¶5] “[T]he State has the burden of proving a person is a sexually dangerous
individual by clear and convincing evidence.” In re Buller, 2020 ND 270, ¶ 14,
952 N.W.2d 106. Under N.D.C.C. § 25-03.3-01(7) (formerly § 25-03.3-01(8)), the
State must prove three elements:
1
1. [T]he individual has engaged in sexually predatory conduct,
2. [T]he 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. [T]he individual’s condition makes them likely to engage in
further acts of sexually predatory conduct which constitute a
danger to the physical or mental health or safety of others.
Matter of Knoke, 2021 ND 270, ¶ 14 (quoting In re G.L.D., 2019 ND 304, ¶ 4,
936 N.W.2d 539).
[¶6] The State must also prove the individual has serious difficulty
controlling his behavior.
“[T]he 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)). We therefore construe “sexually
dangerous individual” as meaning “proof of a nexus between the
requisite disorder and dangerousness encompasses proof that the
disorder involves serious difficulty in controlling behavior and
suffices to distinguish a dangerous sexual offender whose disorder
subjects him to civil commitment from the dangerous but typical
recidivist in the ordinary criminal case.” [Matter of] Wolff, 2011 ND
76, ¶ 7, 796 N.W.2d 644 (quoting Interest of J.M., 2006 ND 96, ¶ 10,
713 N.W.2d 518).
Interest of Voisine, 2018 ND 181, ¶ 6, 915 N.W.2d 647. Relying on Dr. D’Orazio’s
report and testimony, the district court found by clear and convincing evidence
that the State had met the burden to prove each of the four elements. Didier
does not contend that the State failed to meet its burden on the three statutory
elements.
[¶7] On appeal, Didier argues the district court’s findings of fact were not
sufficient to legally conclude he has serious difficulty controlling his behavior.
Didier argues the evidence relating to the current review period, not merely
2
conduct from prior review periods, must be used to determine whether he
remains a sexually dangerous individual. He argues that the findings relating
to the current review period are not sufficiently specific and that the record
does not contain evidence on which sufficiently specific findings could have
been made.
[¶8] “To determine whether an individual has serious difficulty in controlling
behavior, all relevant conduct may be considered.” In re J.T.N., 2011 ND 231,
¶ 13, 807 N.W.2d 570. “[W]hile conduct in proximity to the hearing is relevant,
the past still has some relevance.” Voisine, 2018 ND 181, ¶ 18. The conduct
does not have to be sexual in nature. Matter of J.M., 2019 ND 125, ¶ 8, 927
N.W.2d 422. After reviewing the record, we conclude the district court’s
findings that Didier has serious difficulty controlling his behavior are
supported by clear and convincing evidence.
[¶9] The district court’s findings relied on Dr. D’Orazio’s report, which
described several prior offenses. Didier’s most recent convictions were in 2008,
when Didier was convicted of indecent exposure and sexual assault. In 2010,
he was interviewed for allegedly committing sexual assault on a cognitively
impaired woman. No charges were filed. The same year, he approached young
children in Walmart and attempted to give them money. Around the same time,
he was alleged to have been “pestering female greeters.” He also twice attended
a circus despite a direct prohibition from his probation officer.
[¶10] The district court found Didier’s inability to control his behavior
continues. The court found Didier becomes angry when confronted by his peers
and has stormed off and slammed doors. He also walks out on clinicians when
he is not told what he wants to hear. During the review period, Didier was
demoted from level 2 to level 1 for staring at female staff in a sexually
objectifying manner but has been returned to level 2. The court emphasized
Dr. D’Orazio’s opinion that Didier did not respond to redirection attempts when
he was observed to be staring at a female staff member’s body.
3
[¶11] We conclude the court’s finding by clear and convincing evidence that
Didier has serious difficulty controlling his behavior based on both his past and
present conduct is not clearly erroneous and is supported by the record.
[¶12] We will not consider other issues raised for the first time at oral
argument. In re R.A.S., 2008 ND 185, ¶ 12, 756 N.W.2d 771.
III
[¶13] The district court order and judgment are affirmed.
[¶14] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr
4