In re Interest of D.H.

court file.”11 But in this case, no such reason was contained in
our record.
Therefore, on remand, we encourage the district court to
also review the deductions on worksheet 1 of the child sup-
port guidelines to determine whether a deviation for Martinez-
Ibarra’s cash medical support payment would be appropriate.
CONCLUSION
The decision of the district court is reversed, and the cause
remanded for a redetermination of cash medical support and
child support.
R eveRsed and Remanded.
WRight, J., not participating.
11 Id.
in Re inteRest of d.h., alleged to be
a dangeRous sex offendeR.
d.h., appellant, v. lancasteR county
mental health boaRd, appellee .
797 N.W.2d 263
Filed May 20, 2011. 	No. S-10-617.
1. Mental Health: Appeal and Error. The district court reviews the determination
of a mental health board de novo on the record.
2. Mental Health: Judgments: Appeal and Error. In reviewing a district court’s
judgment upon review of a mental health board determination, an appellate court
will affirm the judgment unless it finds, as a matter of law, that the judgment is
not supported by clear and convincing evidence.
3. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for
review, it is the duty of an appellate court to determine whether it has jurisdiction
over the matter before it.
4. ____: ____. The question of jurisdiction is a question of law, which an appellate
court resolves independently of the trial court.
5. Judgments: Res Judicata. The doctrine of res judicata, or claim preclusion,
bars the relitigation of a matter that has been directly addressed or necessarily
included in a former adjudication if (1) the former judgment was rendered by a
court of competent jurisdiction, (2) the former judgment was a final judgment, (3)
the former judgment was on the merits, and (4) the same parties or their privies
were involved in both actions.
554 	281 NeBraSka repOrTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:45 AM CST

6. Res Judicata: Appeal and Error. The applicability of the doctrine of res judicata
is a question of law, as to which an appellate court is obligated to reach a conclu-
sion independent of the determination reached by the court below.
7. Criminal Law: Mental Health. The key to confinement of a mentally ill person
lies in finding that the person is dangerous and that, absent confinement, the
mentally ill person is likely to engage in particular acts which will result in sub-
stantial harm to himself or others.
appeal from the District Court for Lancaster County: John
a. colboRn, Judge. affirmed.
Dennis r. keefe, Lancaster County public Defender, Todd
Molvar, and andrew J. Conroy, Senior Certified Law Student,
for appellant.
Bruce J. prenda and Maureen Hannon Lamski, Deputy
Lancaster County attorneys, and Meagan Deichert, Senior
Certified Law Student, for appellee.
heavican, c.J., connolly, geRRaRd, stephan, mccoRmack ,
and milleR-leRman, JJ., and cassel , Judge.
stephan, J.
The Lancaster County Mental Health Board (the Board)
determined that D.H. is a “dangerous sex offender” within the
meaning of the Sex Offender Commitment act (SOCa)1 and
should be committed for inpatient treatment. The determina-
tion was affirmed on appeal to the district court for Lancaster
County. D.H. appeals to this court, contending that the district
court erred in affirming the order of the Board for several rea-
sons. We find no error and affirm.
I. FaCTS aND prOCeDUraL BaCkGrOUND
D.H. 	was 	convicted 	of 	first 	degree 	sexual 	assault 	on
November 26, 1991, and was sentenced to a term of 16 to 35
years in prison. The sexual assault occurred when D.H. entered
a woman’s apartment after seeing her sunbathing on her apart-
ment balcony.
1 Neb. rev. Stat. §§ 71-1201 to 71-1226 (reissue 2009).
IN re INTereST OF D.H. 	555
Cite as 281 Neb. 554

prior to D.H.’s scheduled release from prison, the Nebraska
Department of Correctional Services (DCS) ordered an evalua-
tion pursuant to Neb. rev. Stat. § 83-174.02 (reissue 2008) in
order to determine whether D.H. was a dangerous sex offender.
The evaluation was performed by Stephanie Bruhn, ph.D., a
licensed psychologist employed by DCS. Bruhn prepared a
written report of her evaluation dated March 13, 2009.
On april 10, 2009, the Lancaster County attorney filed a
petition pursuant to SOCa alleging that D.H. was a danger-
ous sex offender who had a mental illness which made him
likely to engage in repeat acts of sexual violence. a copy of
Bruhn’s report was attached to the petition along with Bruhn’s
affidavit stating her opinion that D.H. was a dangerous sex
offender as defined in Neb. rev. Stat. § 83-174.01 (reissue
2008). The petition alleged that D.H. was “substantially unable
to control his criminal behavior” and that neither voluntary
hospitalization nor other less restrictive treatment alternatives
were available or would suffice to prevent the harm described
in § 83-174.01.
D.H. filed a motion to dismiss the petition on the ground
that DCS had failed to order the evaluation within the time-
frame stated in § 83-174.02(2). The Board overruled the
motion. D.H. then filed a motion to dismiss the petition on
constitutional grounds and a motion to dismiss the petition on
principles of res judicata. These motions were overruled by
the Board.
The Board then conducted a hearing on the petition. The
hearing was continued several times at the request of D.H.
Bruhn testified that to a reasonable degree of psychological
certainty, she diagnosed D.H. with (1) “paraphilia, not other-
wise specified, non-consent,” and (2) antisocial personality
disorder. She testified that in her opinion, D.H. was a danger-
ous sex offender. another psychologist, Mary paine, ph.D.,
also testified that she had evaluated D.H. and, to a reasonable
degree of psychological certainty, diagnosed him with (1)
paraphilia not otherwise specified, nonconsent; (2) alcohol
abuse by history, in remission in a controlled setting; and (3)
antisocial personality disorder. Both Bruhn and paine testified
that D.H. was at high risk to reoffend upon release and that he
556 	281 NeBraSka repOrTS

needed further sex offender treatment. paine testified that in
her opinion, inpatient treatment was the least restrictive envi-
ronment in which such treatment could be safely provided. Two
of D.H.’s relatives testified that if he were released, he could
live with them and they would assist him with transportation
and employment. The evidentiary record will be discussed in
more detail below.
Following the hearing, the Board entered an order in which
it found clear and convincing evidence that the allegations in
the petition were true. The Board specifically found that D.H.
suffers from paraphilia not otherwise specified, an “axis I”
mental illness, and that as a result of that mental illness, he is
substantially unable to control his criminal behavior and poses
a high risk to sexually reoffend. The Board also found that
inpatient treatment was the least restrictive alternative which
would meet D.H.’s needs and protect the community. The
Board ordered D.H. committed to the Nebraska Department
of Health and Human Services for inpatient sex offender treat-
ment pursuant to an individualized treatment plan.
D.H. appealed the Board’s order to the district court, which
affirmed the Board’s decision. The court found no merit to
D.H.’s claims that SOCa is unconstitutional, that the Board’s
order was barred by res judicata, or that the proceeding should
have been dismissed on the ground that the initial psychological
evaluation was not ordered within the time periods specified in
§ 83-174.02(2). The court found clear and convincing evidence
to support both the Board’s finding that D.H. is a dangerous
sex offender within the meaning of SOCa and its finding that
inpatient involuntary treatment is the least restrictive treatment
alternative. D.H. perfected this timely appeal.
II. aSSIGNMeNTS OF errOr
D.H. assigns (1) that the Board erred in overruling his
motion to dismiss based on DCS’ failure to comply with
§ 83-174.02(2); (2) that the Board erred in overruling his
motion to dismiss based on res judicata; (3) that there was
insufficient evidence to support the decision of the Board to
deem D.H. a dangerous sex offender and commit him to inpa-
tient, sex-offender-specific treatment with the Department of
IN re INTereST OF D.H. 	557
Cite as 281 Neb. 554

Health and Human Services; and (4) that SOCa violates the
ex post Facto and Double Jeopardy Clauses of the state and
federal Constitutions.
III. STaNDarD OF reVIeW
[1,2] The district court reviews the determination of a men-
tal health board de novo on the record.2 In reviewing a district
court’s judgment upon review of a mental health board deter-
mination, an appellate court will affirm the judgment unless it
finds, as a matter of law, that the judgment is not supported by
clear and convincing evidence.3
IV. aNaLYSIS
1. JuRisdiction
Following the submission of appellate briefs but prior to
oral argument, D.H. filed a motion to dismiss the appeal for
lack of jurisdiction. He contends that the Board, the district
court, and this court lack jurisdiction over the cause because
his conviction occurred prior to January 1, 1997, and that he
therefore does not meet SOCa’s definition of a dangerous
sex offender.
[3,4] Before reaching the legal issues presented for review,
it is the duty of an appellate court to determine whether it has
jurisdiction over the matter before it.4 The question of jurisdic-
tion is a question of law, which an appellate court resolves
independently of the trial court.5
Section 71-1203(1) of SOCa incorporates the definition of
“[d]angerous sex offender” found in § 83-174.01(1), which
includes a requirement that the person “has been convicted
of one or more sex offenses.” “Sex offense” is defined in
§ 83-174.01(5) as “any of the offenses listed in [Neb. rev. Stat.
§] 29-4003 for which registration as a sex offender is required.”
Section 29-4003 is part of the Sex Offender registration
2 In re Interest of G.H., 279 Neb. 708, 781 N.W.2d 438 (2010).
3 Id.
4 In re Adoption of David C., 280 Neb. 719, 790 N.W.2d 205 (2010).
5 State v. State Code Agencies Teachers Assn., 280 Neb. 459, 788 N.W.2d
238 (2010).
558 	281 NeBraSka repOrTS

act (SOra),6 under which persons convicted of certain sex
offenses must register with local law enforcement agencies.7
Section 29-4003(1) provides that SOra applies to “any per-
son who on or after January 1, 1997: (a) [p]leads guilty to or
is found guilty of” any of 14 enumerated sex offenses, which
include first degree sexual assault.8 D.H. argues that because
his offense and conviction occurred before January 1, 1997, he
is not required to register under SOra, and that therefore, the
crime for which he was convicted and sentenced in 1991 is not
a “sex offense” under § 83-174.01(5) and he is not a “danger-
ous sex offender” under § 83-174.01(1).
It is true that D.H.’s crime occurred, and he was convicted,
in 1991, and therefore, § 29-4003(1)(a) does not apply to
him. But § 29-4003(1)(c) does. That portion of § 29-4003
states that SOra applies to any person who on or after
January 1, 1997,
[i]s incarcerated in a jail, a penal or correctional facility,
or any other public or private institution or is under pro-
bation or parole as a result of pleading guilty to or being
found guilty of a registrable offense under subdivision
(1)(a) or (b) of this section prior to January 1, 1997[.]9
On and after January 1, 1997, D.H. was incarcerated in a
correctional facility as a result of his conviction for an offense
registrable under SOra. accordingly, he committed a “sex
offense” as defined by § 83-174.01(5) and incorporated in
SOCa. We find no merit to D.H.’s jurisdictional argument and
overrule his motion to dismiss the appeal.
2. timeliness of mental health evaluation
D.H. argues that the district court erred in affirming the
Board’s decision to overrule his motion to dismiss based on
the failure of DCS to comply with § 83-174.02. That statute
directs DCS to order a mental health evaluation of certain sex
offenders, including those convicted of sexual assault in the
6 Neb. rev. Stat. §§ 29-4001 to 29-4014 (reissue 2008).
7 See § 29-4002.
8 § 29-4003(1)(a)(iii).
9 § 29-4003(1)(c).
IN re INTereST OF D.H. 	559
Cite as 281 Neb. 554

first degree, in order to determine whether the individual is a
dangerous sex offender.10 D.H. focuses on that part of the stat-
ute which provides:
The evaluation required by this section shall be ordered
at least one hundred eighty days before the scheduled
release of the individual. Upon completion of the evalua-
tion, and not later than one hundred fifty days prior to
the scheduled release of the individual, [DCS] shall send
written notice to the attorney General, the county attor-
ney of the county where the offender is incarcerated, and
the prosecuting county attorney. The notice shall contain
an affidavit of the mental health professional describing
his or her findings with respect to whether or not the indi-
vidual is a dangerous sex offender.11
The psychological evaluation relied upon by the State in this
case was dated March 13, 2009. D.H. was released from incar-
ceration on april 14, 2009. Due to the filing of the petition
alleging him to be a dangerous sex offender, he was then taken
into emergency protective custody during the pendency of the
proceedings before the Board.12 He argues that he was forced to
serve additional prison time as a result of the delay in the eval-
uation and that his due process rights were violated because he
was not given proper notice of the evaluation and was denied
time to obtain voluntary treatment and an independent evalua-
tion. He also alleges that the State’s failure to comply with the
statute divested the Board of jurisdiction under SOCa.
The issues raised involve statutory interpretation, a question
of law which we resolve independently of the lower court.13
Section 83-174.02 is not a part of SOCa. It makes no reference
to mental health boards or their statutory powers. although a
county attorney may elect to file a petition under SOCa based
upon the results of the evaluation required by § 83-174.02, the
10 § 83-174.02(1)(a).
11 § 83-174.02(2).
12 See § 71-1206.
13 See, State v. State Code Agencies Teachers Assn., supra note 5; Underhill
v. Hobelman, 279 Neb. 30, 776 N.W.2d 786 (2009).
560 	281 NeBraSka repOrTS

statute does not place any time limitation on such filing. We
find no language in § 83-174.02 which would be jurisdictional
with respect to a proceeding under SOCa.
The time periods mentioned in § 83-174.02(2) designate
when DCS shall provide information to prosecutors, but the
statute does not prescribe any type of notice to the offender. We
conclude that § 83-174.02 provides a mechanism for identify-
ing potentially dangerous sex offenders prior to their release
from incarceration and for notifying prosecuting authorities so
that they will have adequate time to determine whether to file
a petition under SOCa before the offender’s release date. But
the statute does not create any substantive or procedural rights
in the offender who is the subject of the mental health evalu-
ation. We note that contrary to his argument, D.H. served no
additional prison time based on the timing of the filing of the
petition. The district court did not err in affirming the Board’s
overruling of the motion to dismiss based upon an alleged fail-
ure to comply with § 83-174.02(2).
3. R es Judicata
When he was sentenced in 1991, D.H. was found not to be
a mentally disordered sexual offender (MDSO). He contends
that this 1991 determination is a bar to the 2010 proceedings,
in which he was found to be a dangerous sex offender under
SOCa, based upon res judicata.
[5,6] The doctrine of res judicata, or claim preclusion, bars
the relitigation of a matter that has been directly addressed or
necessarily included in a former adjudication if (1) the former
judgment was rendered by a court of competent jurisdiction,
(2) the former judgment was a final judgment, (3) the former
judgment was on the merits, and (4) the same parties or their
privies were involved in both actions.14 The applicability of the
doctrine of res judicata is a question of law, as to which we are
obligated to reach a conclusion independent of the determina-
tion reached by the court below.15
14 Jensen v. Jensen, 275 Neb. 921, 750 N.W.2d 335 (2008).
15 See Ichtertz v. Orthopaedic Specialists of Neb., 273 Neb. 466, 730 N.W.2d
798 (2007).
IN re INTereST OF D.H. 	561
Cite as 281 Neb. 554

prior to 1992, Nebraska defined a “mentally disordered
sex offender” as “any person who has a mental disorder and
who, because of the mental disorder, has been determined to
be disposed to repeated commission of sexual offenses which
are likely to cause substantial injury to the health of others.”16
If an offender met this definition at the time of sentencing and
it was determined that the disorder was treatable, the offender
was immediately committed to a regional center for treatment
before serving a sentence of incarceration.17 after receiving the
maximum benefit of treatment, the offender was returned for
further disposition by the sentencing court, with credit given
for time spent in treatment.18
In rejecting D.H.’s claim that the 1991 MDSO determination
operated as a bar to the 2010 SOCa proceeding, the district
court reasoned that the issue before the Board was D.H.’s
current mental health diagnosis and its effect upon his ability
to control his criminal behavior in 2010, which is a different
issue from that which was decided in 1991. The court found
persuasive the reasoning of People v. Carmony,19 in which a
California appellate court held that a 1982 determination that a
convicted defendant was not an MDSO did not operate as a bar
to a proceeding initiated approximately 20 years later, shortly
before the defendant’s release on parole, to determine if he was
a “sexually violent predator” who posed a danger to others and
should be civilly committed for treatment. Under California’s
formulation of the doctrine of collateral estoppel, “an issue
tried and determined in one proceeding is given conclusive
effect in subsequent litigation between the same parties or their
privies.”20 The California court determined that the doctrine did
16 Neb. rev. Stat. § 29-2911(2) (reissue 1989) (repealed by 1992 Neb. Laws,
L.B. 523, § 18).
17 Neb. rev. Stat. § 29-2915 (reissue 1989) (repealed by 1992 Neb. Laws,
L.B. 523, § 18).
18 Neb. rev. Stat. § 29-2919 (reissue 1989) (repealed by 1992 Neb. Laws,
L.B. 523, § 18).
19 People v. Carmony, 99 Cal. app. 4th 317, 325, 120 Cal. rptr. 2d 896, 901
(2002).
20 Id. at 322, 120 Cal. rptr. 2d at 899.
562 	281 NeBraSka repOrTS

not bar the subsequent proceedings because they involved the
individual’s mental health at the time of parole, not at the time
of conviction. The court reasoned:
Some issues are not static, that is, they are not fixed and
permanent in their nature. When a fact, condition, status,
right, or title is not fixed and permanent in nature, then
an adjudication is conclusive as to the issue at the time of
its rendition, but is not conclusive as to that issue at some
later time.21
The court concluded that collateral estoppel did not apply in
“light of the changeable nature of a person’s mental health
and dangerousness.”22
D.H. argues that we should not follow the reasoning in
Carmony because there has been no material change in the
facts between the time of his 1991 MDSO determination and
the current SOCa proceeding. The Carmony court cited a 1931
California case for the proposition that claim preclusion did not
apply where “‘the facts have materially changed or new facts
have occurred’” in the interval between the two proceedings.23
Nebraska law is similar.24
We do not read Carmony to focus on changes in factual cir-
cumstances. rather, the court’s focus was on the differing pur-
poses of the two statutes in question and the changeable nature
of an individual’s mental health. The mental health determi-
nation under California’s MDSO statute occurred before the
criminal sentence was served, as was true under Nebraska’s
former MDSO statutes. But the mental health determination
under California’s subsequent statute focused on the offender’s
mental health and dangerousness immediately prior to his
or her release from incarceration, and it was intended by the
California Legislature as a means of protecting the public from
those sex offenders who are determined to be at high risk to
21 Id.
22 Id. at 323, 120 Cal. rptr. 2d at 900.
23 Id. at 322, 120 Cal. rptr. 2d at 900, quoting Hurd v. Albert, 214 Cal. 15,
3 p.2d 545 (1931).
24 See, Ichtertz v. Orthopaedic Specialists of Neb., supra note 15; Moulton v.
Board of Zoning Appeals, 251 Neb. 95, 555 N.W.2d 39 (1996).
IN re INTereST OF D.H. 	563
Cite as 281 Neb. 554

reoffend.25 Similarly, the purpose of SOCa “is to provide for
the court-ordered treatment of sex offenders who have com-
pleted their sentences but continue to pose a threat of harm
to others.”26
Nor are we persuaded by D.H.’s argument that we should
follow the reasoning of the kansas Supreme Court in In re
Care and Treatment of Sporn,27 which held that a proceeding
initiated under kansas’ Sexually Violent predator act in 2007
was barred by a 2006 finding in a proceeding under the same
statute where the State had failed to prove that the offender’s
mental status and risk assessment had changed in the interim.
Unlike In re Care and Treatment of Sporn, the case at bar
involves mental health adjudications under different statutes
and separated by a period of years.
We agree with the district court that the reasoning of
Carmony is applicable to this case. Nebraska’s former MDSO
statutes and its current SOCa statutes provide for assess-
ment of an offender’s mental health and risk of recidivism at
different times and for different purposes. While the MDSO
determination may be relevant to the subsequent SOCa issue,
it is not conclusive. In addition to the information available to
the sentencing court at the time of the 1991 MDSO determi-
nation, the Board in this SOCa proceeding had evidence of
D.H.’s sexual misconduct while in prison, discussed in more
detail below. While D.H. would minimize the significance of
this evidence, it is not our role to reweigh the evidence. We
conclude that the issue presented in this SOCa proceeding was
not and could not have been litigated at the time of the MDSO
determination in 1991 and that the doctrine of res judicata is
therefore inapplicable.
4. sufficiency of evidence
We turn to the argument made by D.H. that the evidence
before the Board was insufficient to support its finding that
he is a dangerous sex offender who should be committed for
25 People v. Carmony, supra note 19.
26 § 71-1202.
27 In re Care and Treatment of Sporn, 289 kan. 681, 215 p.3d 615 (2009).
564 	281 NeBraSka repOrTS

inpatient treatment. In its de novo review, the district court
found the evidence to be sufficient to support the findings and
actions of the Board under SOCa. Our standard of review
requires that we affirm unless we can conclude, as a matter of
law, that the judgment is not supported by clear and convinc-
ing evidence.28
In order for an individual to be considered a dangerous
sex offender, the State has the burden to prove by clear and
convincing evidence that (1) the subject is a dangerous sex
offender and (2) neither voluntary hospitalization nor other
treatment alternatives less restrictive of the subject’s liberty
than inpatient or outpatient treatment ordered by the Board
are available or would suffice to prevent the harm described in
§ 83-174.01(1).29
(a) Dangerous Sex Offender
as used in SOCa, the phrase “dangerous sex offender”
means
(a) a person who suffers from a mental illness which
makes the person likely to engage in repeat acts of sexual
violence, who has been convicted of one or more sex
offenses, and who is substantially unable to control his
or her criminal behavior or (b) a person with a person-
ality disorder which makes the person likely to engage in
repeat acts of sexual violence, who has been convicted of
two or more sex offenses, and who is substantially unable
to control his or her criminal behavior.30
(i) Mental Illness or Personality Disorder
Bruhn diagnosed D.H. as having both paraphilia not other-
wise specified, nonconsent, and antisocial personality disorder.
The former is an axis I mental illness under the “DSM-IV.”
paine also diagnosed D.H. as having (1) paraphilia not other-
wise specified, nonconsent; (2) alcohol abuse by history, in
remission in a controlled setting; and (3) antisocial personality
28 In re Interest of G.H., supra note 2.
29 § 71-1209(1).
30 § 83-174.01(1).
IN re INTereST OF D.H. 	565
Cite as 281 Neb. 554

disorder. There was no expert testimony to the contrary. The
expert testimony of Bruhn and paine supports the finding that
D.H. has a mental illness.
(ii) Likely to Engage in Repeat Acts
of Sexual Violence
The phrase “likely to engage in repeat acts of sexual vio-
lence” in § 83-174.01(2) means that a “‘person’s propensity to
commit sex offenses resulting in serious harm to others is of
such a degree as to pose a menace to the health and safety of
the public.’”31
The record shows that D.H. was given 68 misconduct reports
while incarcerated. Four of them involved his sexual activities
of making sexual comments to a female correctional officer,
exposing himself to a female staff member, and masturbating
in view of female staff members. D.H. was in segregation from
2004 until his discharge for various reasons, including threat-
ening staff members, sexual activities, misconduct reports, and
assault on a staff member.
In addition, Bruhn and paine administered several assess-
ment instruments to D.H. On the “psychopathy Checklist
revised, 2nd edition” instrument, which is designed to assess
personality traits and behaviors characteristic of psychopathy,
D.H. scored a 28. Individuals with scores between 25 and
29 are considered possibly psychopathic. On the “Static-99”
instrument, which is designed to estimate the risk of sexual
recidivism among sex offenders, D.H. scored in the high risk
category, relative to other adult male sex offenders, for com-
mitting a future sex offense. Of those with the same Static-99
score as D.H., 27.7 percent sexually reoffended within 5 years
and 37.3 percent sexually reoffended within 10 years.
The “Stable 2007” instrument is designed to assess change
in intermediate-term risk status, assess treatment needs, and
help predict recidivism in sexual offenders. D.H. scored 21
out of 26 points, which placed him in the high needs category
on that instrument and indicated that he had a high chance of
31 In re Interest of J.R., 277 Neb. 362, 386, 762 N.W.2d 305, 324-25 (2009),
quoting § 83-174.01(2).
566 	281 NeBraSka repOrTS

recidivism. a composite score of the Static 99 and Stable 2007
placed D.H. in a very high category for recidivism relative to
other sexual offenders.
Bruhn also administered the “Sex Offender risk appraisal
Guide,” which is an instrument intended to estimate the risk
of violent recidivism among adult male sex offenders. D.H.
scored in the highest category. Individuals with similar scores
have a “1.00” probability of violent recidivism within 7 years
and a “1.00” probability of violent recidivism within 10 years.
Bruhn stated D.H.’s mental illness makes it likely that he will
reoffend sexually and likely that he will engage in repeat acts
of sexual violence.
paine also determined that D.H. scored in the highest risk
category for sexual reoffense on the Static 99. On the Stable
2007 administered by paine, D.H. scored 18 out of 24 possible
points. Combining the scores on both instruments, paine said
D.H. is at very high risk to sexually reoffend. among individ-
uals with the same scores, sexual recidivism occurs at a rate of
14.3 percent at 1 year and at a rate of 26 percent at 4 years. In
terms of violent recidivism, the rates are 20.4 percent at 1 year
and 42 percent at 4 years.
This evidence supports the Board’s finding that D.H. is
likely to engage in repeat acts of sexual violence.
(iii) Convicted of One or More Sex Offenses
This requirement was met by proof that D.H. was convicted
of sexual assault in the first degree in 1991, for which he was
incarcerated until 2009.
(iv) Substantially Unable to Control
Criminal Behavior
The phrase “substantially unable to control his or her
criminal behavior” means that the person has “serious diffi-
culty in controlling or resisting the desire or urge to commit
sex offenses.”32
The assessment tools administered by Bruhn and paine
demonstrated that D.H. is at high risk for committing a future
32 § 83-174.01(6).
IN re INTereST OF D.H. 	567
Cite as 281 Neb. 554

sex offense when compared with other adult male sex offend-
ers. On the Sex Offender risk appraisal Guide, he scored
in the highest category, representing a high risk of violent
reoffense.
Based on the mental illness diagnosis and the record of
D.H.’s acting out sexually in a structured environment, Bruhn
opined to a reasonable degree of psychological certainty that
D.H. is substantially unable to control his criminal behavior.
and paine believed, to a reasonable degree of psychological
certainty, that D.H. would pose a substantial risk of harm, spe-
cifically to adult females, if he were released.
The evidence was sufficient to support a finding that D.H.
is a dangerous sex offender under the definition stated in
§ 83-174.01. We next consider whether the State demonstrated
the level of treatment necessary.
(b) No Less restrictive Treatment
Under § 71-1209(1)(b), the State must demonstrate that
“neither voluntary hospitalization nor other treatment alterna-
tives less restrictive of the subject’s liberty than inpatient or
outpatient treatment ordered by the [Board] are available or
would suffice to prevent the harm described” in § 83-174.01(1).
For D.H., the Board determined that the least restrictive treat-
ment available to prevent the harm described in § 83-174.01 is
inpatient commitment for sex offender treatment.
The evidence showed that D.H. participated in but did not
successfully complete sex offender treatment while incarcer-
ated. Specifically, he participated in an inpatient sex offender
program for a short period of time and then went to the Lincoln
regional Center for sex offender treatment from December
1997 to September 1998. D.H. never progressed beyond the
initial treatment level at the regional center and was given a
negative recommendation. D.H. told Bruhn he believed there
was bias in the regional center treatment program. D.H. was
recommended for participation in another sex offender treat-
ment program in June 2007, but he was never transferred to the
program because he was in segregation.
D.H. completed three levels of a generic mental health pro-
gram and a 10-week anger and stress management program
568 	281 NeBraSka repOrTS

while incarcerated. D.H. also attended 3 of 10 sessions of a
domestic violence group and was described as an active par-
ticipant of that group, although he had to be given cues not to
dominate the group.
Bruhn stated that D.H. presented himself as someone who
had worked through his treatment issues. He became defensive
when he was given feedback and became loud and verbally
aggressive when confronted about current or past behaviors.
D.H. avoided taking responsibility for behavioral problems and
was told to find less aggressive ways to express his anger and
other emotions.
Bruhn expressed concern about D.H.’s ability to comply
with treatment because he told her he thought that the mental
health system was corrupt and that the evaluation process was
a “witch hunt” for sex offenders. He also indicated he did
not need treatment. To a reasonable degree of psychological
certainty, Bruhn believed D.H. would pose a danger to the
community based on his previous offense against an adult
female using force, his acting out sexually in a structured
setting, and his not successfully completing any sex offender
treatment.
paine testified that D.H. had not yet checked on whether
there were any restrictions on where he could live after his
release. He believed he could get work with relatives, and he
planned to take a correspondence course in paralegal studies.
D.H. said his primary means of avoiding relapse would be
to remain sober, but he was unable to identify any warning
signs that might indicate he was “in trouble.” He did not see
himself as being at risk to reoffend. paine said that individ-
uals who do not view themselves to be at risk to reoffend
are less likely to take steps to prevent it, are less likely to
avoid situations that might create problems, and are likely to
fail to recognize the need for advance intervention to prevent
reoffending.
D.H. did not identify a need for any type of treatment and
said that he would keep himself from reoffending by working
out at a gym. Bruhn found this comment of concern because
if D.H. encountered an adult woman at a gym, he might be
tempted to engage in sexual behavior with her. paine testified
IN re INTereST OF D.H. 	569
Cite as 281 Neb. 554

D.H. had said that Lincoln regional Center staff played favor-
ites and that he did not make progress in treatment there for
racial reasons.
paine asked D.H. his thoughts about relationships with
women when he is released. D.H. said he planned to write to
women in magazines to ask them to have sexual relationships.
He said he “needs sex,” “wants it upfront,” and does not want
to have to deal with women who “play[] games.” paine said
D.H.’s attitudes toward women were cause for concern because
they indicated cognitive distortions about women that are com-
mon in rapists. paine opined that D.H. is in need of further sex
offender treatment and that the least restrictive environment
in which that could safely be provided would be an inpa-
tient program.
This evidence supports the Board’s finding that commitment
for inpatient sex offender treatment was the least restrictive
alternative which would provide D.H. with the treatment he
required and which would protect the community.
(c) Summary
[7] “The key to confinement of a mentally ill person lies in
finding that the person is dangerous and that, absent confine-
ment, the mentally ill person is likely to engage in particular
acts which will result in substantial harm to himself or oth-
ers.”33 The evidence summarized above provided a sufficient
factual basis for the Board and the district court to conclude
that the State had met its burden of proof under SOCa by clear
and convincing evidence.
5. constitutionality of soca
Finally, D.H. asserts that the Board erred in overruling his
motion to dismiss the petition because SOCa is unconstitu-
tional. D.H. claims that SOCa is an ex post facto law because
it is punitive in nature and retroactive in its application, there-
fore violating the prohibition against such laws found in U.S.
Const. art. I, § 9, and Neb. Const. art. I, § 16. D.H. also argues
that SOCa places him twice in jeopardy for the same offense,
33 In re Interest of J.R., supra note 31, 277 Neb. at 386, 762 N.W.2d at 365.
570 	281 NeBraSka repOrTS

in violation of the Fifth amendment to the U.S. Constitution
and Neb. Const. art. I, § 12.
In In re Interest of J.R.,34 we held that SOCa does not con-
stitute ex post facto legislation because it is not punitive in
nature. We are not persuaded by the argument that we should
reconsider this holding. Indeed, we recently reaffirmed it in In
re Interest of A.M.,35 where we also held that because SOCa
is not punitive in nature, it cannot violate the coextensive pro-
tections afforded by the Double Jeopardy clauses of the state
and federal Constitutions. accordingly, we conclude that the
district court did not err in overruling D.H.’s motion to dismiss
the petition on constitutional grounds.
V. CONCLUSION
For the reasons discussed above, we overrule D.H.’s motion
to dismiss the appeal and affirm the judgment of the dis-
trict court.
affiRmed.
WRight, J., not participating.
34 Id.
35 In re Interest of A.M., ante p. 482, 797 N.W.2d 233 (2011).
IN re INTereST OF D.H. 	571
Cite as 281 Neb. 554