In re Interest of O.S.

be . . . (2) kept in some suitable place provided by the city or
county authorities.”
CONCLUSION
The juvenile court erred in denying C.H.’s motion to sup-
press his confession. Because the confession was erroneously
considered by the court, we reverse the court’s adjudication
that C.H. was a juvenile within § 43-247(1) and (2) and we
remand the cause for a new adjudication hearing.
R eveRsed and Remanded with diRections.
G eRRaRd, J., participating on briefs.
heavican, C.J., not participating.
IN re INTereST Of O.S. 	577
Cite as 277 Neb. 577
in Re inteRest of o.s., alleGed to be
a danGeRous sex offendeR.
o.s., appellant, v. mental health boaRd of the
fouRth Judicial distRict, appellee .
763 N.W.2d 723
filed April 10, 2009. 	No. S-08-405.
1. Mental Health: Appeal and Error. The district court reviews the determination
of a mental health board de novo on the record.
2. Judgments: Appeal and Error. In reviewing a district court’s judgment, an
appellate court will affirm the judgment unless it finds, as a matter of law, that
clear and convincing evidence does not support the judgment.
3. Convicted Sex Offender: Due Process: Proof. Although the Sex Offender
Commitment Act does not statutorily require a showing of a recent act of vio-
lence, it satisfies due process by requiring the State to prove that a substantial
likelihood exists that an individual will engage in dangerous behavior unless
restraints are applied.
4. Convicted Sex Offender: Proof. To prove that an individual is a dangerous sex
offender under the Sex Offender Commitment Act, the State must prove by clear
and convincing evidence that the individual is likely to engage in repeat acts of
sexual violence and that the individual is substantially unable to control his crimi-
nal behavior.
5. Convicted Sex Offender: Mental Health: Evidence. Civil commitments under
the Sex Offender Commitment Act and the Nebraska Mental Health Commitment
Act require that the mentally ill person be dangerous and that absent confinement,
the person is likely to engage in particular acts which will result in substantial
harm to himself or others.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:51 AM CST

6. Criminal Law: Mental Health. In determining whether a person is dangerous,
the focus must be on the person’s condition at the time of the hearing.
7. Mental Health: Other Acts: Proof. Actions and statements of a person alleged
to be mentally ill and dangerous which occur before the hearing are probative
of the subject’s present mental condition. But, for a past act to have evidentiary
value, the past act must have some foundation for a prediction of future danger-
ousness, thus being probative of that issue.
Appeal 	from 	the 	District 	Court 	for 	Douglas 	County:
J Russell deRR, Judge. Affirmed in part, and in part reversed
and remanded with directions.
Thomas C. riley, Douglas County Public Defender, and
Sean M. Conway for appellant.
Michael 	W. 	Jensen, 	Deputy 	Douglas 	County 	Attorney,
for appellee.
heavican, 	c.J., 	wRiGht, 	connolly, 	G eRRaRd, 	stephan,
mccoRmack, and milleR-leRman, JJ.
connolly, J.
O.S. challenges the constitutionality of the Sex Offender
Commitment Act (SOCA).1 He claims that SOCA violates
equal protection, double jeopardy, and an impermissible ex
post facto law under the U.S. Constitution and the Nebraska
Constitution. O.S. also challenges the sufficiency of the evi-
dence supporting the order of the Mental Health Board of the
fourth Judicial District (the Board) that he is a dangerous sex
offender in need of involuntary, inpatient treatment.
We recently decided in In re Interest of J.R.2 that SOCA
does not violate equal protection or double jeopardy and is not
an impermissible ex post facto law. Thus, O.S.’ constitutional
challenge fails. We also conclude that the State presented suf-
ficient evidence to support a finding that O.S. was a dangerous
sex offender. But, we also conclude the State failed to show by
clear and convincing evidence that involuntary, inpatient treat-
ment was the least restrictive treatment alternative. We affirm
1 Neb. rev. Stat. §§ 71-1201 to 71-1226 (Cum. Supp. 2008).
2 In re Interest of J.R., ante p. 362, 762 N.W.2d 305 (2009).
578 	277 NeBrASkA rePOrTS

in part, and in part reverse and remand to the district court
with directions.
In 1986, O.S. pleaded no contest to charges of first degree
sexual assault, use of a weapon to commit a felony, and false
imprisonment. The district court later sentenced him to 15 to
30 years in prison for first degree sexual assault, 5 to 10 years
in prison for use of a weapon to commit a felony, and 11⁄2 to 5
years in prison for first degree false imprisonment. O.S.’ dis-
charge date from prison was June 14, 2007.
Because the State believed O.S. to be a dangerous sex
offender, he was subject to a psychological evaluation for that
determination.3 kirk A.B. Newring, Ph.D., a psychologist for
the Department of Correctional Services, did the psychologi-
cal evaluation. At a hearing on June 12, 2007, the Board heard
Newring’s testimony regarding his evaluation.
As part of the evaluation, Newring reviewed O.S.’ records
from the Department of Correctional Services (hereinafter
Corrections), including police reports from the sexual assault
that led to his conviction, misconduct reports while incarcer-
ated, and his mental health records. Newring also conducted a
clinical interview. With this information, Newring assessed O.S.’
level of risk for sexual reoffense using three tools: a “Static-99”
measure, the “Psychopathy Checklist: revised” (PCL:r), and
the “Sex Offender risk Appraisal Guide” (SOrAG). Newring
testified that all three are generally accepted in the field of psy-
chology but stated that some in the field do not recommend the
use of actuarial instruments.
Newring’s testimony included only a brief explanation of each
instrument, along with O.S.’ scores based solely on Newring’s
own analysis. The Static-99 is an instrument designed to esti-
mate sexual and violent recidivism risk among sex offenders; it
uses risk factors associated with sexual recidivism. O.S. scored
a five, placing him in the medium- to high-risk category for
committing a future sexual offense compared with other adult
male sex offenders. Newring testified that of the individuals
within the reference group who also had a score of five, 33
percent sexually reoffended within 5 years of release from
3 See §§ 71-1202 and 71-1205.
IN re INTereST Of O.S. 	579
Cite as 277 Neb. 577

incarceration and 40 percent sexually reoffended within 15
years of release from incarceration. Within the same reference
group, 42 percent violently reoffended within 5 years of release
from incarceration and 52 percent violently reoffended within
15 years of release from incarceration.
The PCL:r assesses whether an individual’s behavior is
consistent with psychopathy, or whether the individual has per-
sonality features that are consistent with interpersonal explo-
siveness and antisociality. Newring diagnosed O.S. with psy-
chopathy based upon O.S.’ score of 29.
SOrAG is an actuary-based instrument that estimates a sex
offender’s risk for repeating a violent offense, which includes
sexual reoffense and violent nonsexual reoffense. It uses risk
factors that researchers have empirically linked with repeat
violent offenders. O.S. scored a 15 on the SOrAG. Using as a
reference other individuals who also scored a 15, Newring testi-
fied that O.S. had a violent recidivism probability of 58 percent
within 7 years and 76 percent within 10 years. In sum, Newring
explained that three-fourths of the individuals in the reference
group who scored a 15 on SOrAG were convicted of a violent
reoffense within 10 years of their release from prison.
Based on a reasonable degree of psychological certainty,
Newring diagnosed O.S. with (1) exhibitionism; (2) paraphilia,
not otherwise specified, nonconsent, which means he derives
sexual gratification by having sexual interactions with a non-
consenting partner; and (3) a personality disorder, not other-
wise specified, psychopathy. Because of mental illness or other
factors, Newring concluded that O.S. lacked the capacity and
volitional control to refrain from engaging in sexually inappro-
priate acts. Based upon that diagnosis, Newring testified that
O.S. was a dangerous sex offender.4
But Newring did not testify whether less restrictive treat-
ment than inpatient or outpatient treatment would be sufficient
for O.S. Newring also disclosed that from the evidence in O.S.’
record, O.S. had not completed any sexual offender treatment
while incarcerated. Newring testified that if he were to evalu-
ate O.S. as a newly admitted prisoner, he would recommend
4 See Neb. rev. Stat. § 83-174.01(1)(a) (Cum. Supp. 2008).
580 	277 NeBrASkA rePOrTS

that he remain in the inpatient section of the prison to receive
treatment. Corrections has three levels of treatment for incar-
cerated sex offenders: an individual study program where pris-
oners remain in the general population but follow a treatment
program and meet with counselors; an outpatient program
where inmates occupy living units at the Omaha Correctional
Center and the Nebraska State Penitentiary and attend weekly
treatment sessions; and the inpatient program, which is the
most restrictive treatment environment for sex offenders within
Corrections. The inpatient treatment program is at the Lincoln
Correctional Center and places a sex offender in a controlled
setting with little freedom to move around the facility. Newring
declined to state what treatment O.S. should receive once
the State released him from prison. He did, however, tes-
tify that if O.S. were presented for incarceration, he would
receive the most restrictive, most intensive treatment available
through Corrections.
Based upon Newring’s testimony, the Board found O.S. was
a dangerous sex offender under § 83-174.01(1)(a) and commit-
ted him to involuntary, inpatient treatment. The district court
affirmed. Because of the constitutional issues, we granted O.S.’
petition to bypass the Nebraska Court of Appeals.
O.S. assigns three errors. first, O.S. asserts that SOCA is
unconstitutional under the U.S. Constitution and the Nebraska
Constitution because (1) it is an impermissible ex post facto
law, (2) it violates double jeopardy, and (3) it violates equal
protection. Second, O.S. asserts the Board erred in finding
that O.S. is a dangerous sex offender. Third, he claims that the
Board erred in finding that neither voluntary hospitalization
nor other treatment alternatives less restrictive were available
as required by § 71-1209. Under § 71-1209(1),
[t]he state has the burden to prove by clear and con-
vincing evidence that (a) the subject is a dangerous sex
offender and (b) neither voluntary hospitalization nor
other treatment alternatives less restrictive of the subject’s
liberty than inpatient or outpatient treatment ordered by
the mental health board are available or would suffice
to prevent the harm described in subdivision (1) of sec-
tion 83-174.01.
IN re INTereST Of O.S. 	581
Cite as 277 Neb. 577

As previously stated, we addressed the constitutionality of
SOCA in In re Interest of J.R.5 We concluded that SOCA does
not violate the ex Post facto Clause, the Double Jeopardy
Clause, or the equal Protection Clause. Our ruling in In re
Interest of J.R. resolves O.S.’ constitutional claims.
Besides his constitutional arguments, O.S. makes three argu-
ments concerning the sufficiency of the State’s evidence. He
claims that (1) the State failed to present evidence of a “recent
act,” (2) the evidence does not support the Board’s finding that
he is a dangerous sex offender, and (3) involuntary, inpatient
treatment is the least restrictive alternative.
[1,2] As we know, the district court reviews the determina-
tion of a mental health board de novo on the record.6 And in
reviewing a district court’s judgment, we will affirm the judg-
ment unless we find, as a matter of law, that clear and convinc-
ing evidence does not support the judgment.7
We first address O.S.’ “recent act” argument. O.S. asserts
that for involuntary commitment under SOCA to comply with
due process, the State must prove a “recent act” that shows
he is dangerous. He claims that his conviction in 1986 is not
a recent act probative of whether he will be dangerous in the
future. Thus, he argues the State failed to prove a recent vio-
lent act indicating that he is likely to engage in repeat acts of
sexual violence.8
O.S.’ “recent 	act” 	argument 	is 	based 	on 	the 	statutory
requirements of the Nebraska Mental Health Commitment Act
(MHCA), not SOCA. We conclude that O.S.’ reliance on our
holdings under MHCA is misplaced, because neither due pro-
cess principles nor SOCA requires the State to prove a recent
act probative of a sex offender’s dangerousness.
Nebraska has two methods for committing individuals suf-
fering from mental illness: SOCA and MHCA.9 Both aim to
5 See In re Interest of J.R., supra note 2.
6 Id.
7 See id.
8 See In re Interest of Kochner, 266 Neb. 114, 662 N.W.2d 195 (2003).
9 See Neb. rev. Stat. § 71-901 to 71-962 (Cum. Supp. 2006).
582 	277 NeBrASkA rePOrTS

confine and provide treatment to mentally ill persons who pose
a risk to society.10 But there is a critical distinction—the acts
focus on different individuals. MHCA applies to any person
who is mentally ill and dangerous.11 SOCA applies specifically
to convicted sex offenders who have completed their jail sen-
tence but continue to pose a threat of harm to others.12 While
both require that the individual be proved dangerous, because
the acts focus on two different groups of individuals, the condi-
tions for commitment under each act also differ.
We have stated that due process requires the State to show
that the need for confinement be based upon “‘a substantial
likelihood that dangerous behavior will be engaged in unless
restraints are applied.’”13 Under MHCA, a mentally ill and
dangerous person is one who is mentally ill or substance
dependent and whose condition presents “[a] substantial risk
of serious harm to another person or persons within the near
future as manifested by evidence of recent violent acts or
threats of violence or by placing others in reasonable fear of
such harm.”14 To confine an individual against his will under
MHCA, the State must show that the individual is mentally ill
and that “‘“he has actually been dangerous in the recent past
and that such danger was manifested by an overt act, attempt or
threat to do substantial harm to himself or to another.”’”15
SOCA has different statutory requirements for declaring a
sex offender dangerous. It does not require proof of a recent act
of violence or threats or placing others in fear. But its require-
ments are sufficient to satisfy due process.
10 See Kansas v. Crane, 534 U.S. 407, 122 S. Ct. 867, 151 L. ed. 2d 856
(2002).
11 § 71-901.
12 § 71-1202.
13 In re Interest of J.R., supra note 2, 277 Neb. at 386, 762 N.W.2d at 325,
quoting In re Interest of Blythman, 208 Neb. 51, 302 N.W.2d 666 (1981).
14 § 71-908(1).
15 In re Interest of Kochner, supra note 8, 266 Neb. at 121, 662 N.W.2d at
202, quoting In re Interest of Blythman, supra note 13. Accord Lynch v.
Baxley, 386 f. Supp. 378 (M.D. Ala. 1974).
IN re INTereST Of O.S. 	583
Cite as 277 Neb. 577

[3] SOCA requires that the State show that the person is a
dangerous sex offender16 and 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.”17 Thus, although SOCA does not statuto-
rily require a showing of a recent act of violence, it satisfies
due process by requiring the State to prove that a substantial
likelihood exists that the individual will engage in dangerous
behavior unless restraints are applied.
[4,5] We next address O.S.’ assertion that the State did not
prove he was dangerous. As outlined above, for O.S. to be a
dangerous sex offender under SOCA, the State must prove
by clear and convincing evidence that he is likely to engage
in repeat acts of sexual violence and that he is substantially
unable to control his criminal behavior.18 “Likely to engage in
repeat acts of sexual violence means the 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.”19 And unable to control criminal behavior means
“having serious difficulty in controlling or resisting the desire
or urge to commit sex offenses.”20 In sum, civil commitments
under SOCA and MHCA require that the mentally ill person be
dangerous and that absent confinement, the person is likely to
engage in particular acts which will result in substantial harm
to himself or others.21
[6,7] In determining whether a person is dangerous, the
focus must be on the person’s condition at the time of the hear-
ing.22 Actions and statements of a person alleged to be mentally
16 § 71-1209(1).
17 § 83-174.01(1)(a).
18 §§ 71-1209(1), 71-1203(1), and 83-174.01(1)(a).
19 § 83-174.01(2).
20 § 83-174.01(6). See, also, Crane, supra note 10.
21 See In re Interest of J.R., supra note 2. See, also, In re Interest of
Blythman, supra note 13.
22 Id.
584 	277 NeBrASkA rePOrTS

ill and dangerous which occur before the hearing are probative
of the subject’s present mental condition.23 But, for a past act to
have evidentiary value, the past act must have some foundation
for a prediction of future dangerousness, thus being probative
of that issue.24 Although assessment of whether a person will
be dangerous calls for a medical decision, the sufficiency of
the evidence required to support such a decision presents a
legal question.25
The Board relied on Newring’s testimony that O.S. was a
dangerous sex offender. He testified that O.S. has a sexual
assault recidivism risk of 33 percent within 5 years and 40
percent within 15 years. He has a violent recidivism probability
of 58 percent within 7 years and 76 percent within 10 years.
He also diagnosed O.S. with psychopathy personality disor-
der, exhibitionism, and paraphilia. Newring also opined that
O.S. lacks the capacity or control, because of mental illness
or other factors, to refrain from engaging in a sexually inap-
propriate act. And, if released into the community, O.S. would
pose a threat to others. O.S. presented no evidence contesting
Newring’s findings. O.S. also did not challenge the recidivism
rates for his scores. We conclude that Newring’s evaluation
was sufficient and probative of whether O.S. remains a danger
to society.
finally, we turn to O.S.’ argument that involuntary, inpa-
tient treatment was more restrictive than other alternative
treatment. Under § 71-1209(1)(b), the State must prove that
neither voluntary hospitalization nor other alternative treat-
ment less restrictive than inpatient treatment would prevent
the individual from harming himself or others. O.S. argues
that the State presented no evidence regarding the least
restrictive treatment alterative. He contends the State’s evi-
dence fails, because the State’s expert, Newring, only testi-
fied as to the treatment O.S. would receive should he remain
incarcerated.
23 Id.
24 Id.
25 Id.
IN re INTereST Of O.S. 	585
Cite as 277 Neb. 577

Specifically, Newring testified that the referral question he
received from the State was whether O.S. was a dangerous sex
offender. He stated that he was not asked to give an opinion on
the least restrictive treatment alternative. He stated:
[T]he referral question that I’m ethically obliged to answer
is does a person meet criteria for dangerous sex offender
based on the information available to me, and that’s all
that the law requests me to do. To go beyond that would
be inappropriate, so I was just going to answer the ques-
tion that’s asked within the law . . . .
Newring went on to state that he could not “speak to what
[treatment options] community providers would offer.” He
could only state what treatment options would be available
within Corrections.
We conclude that the State failed to prove by clear and
convincing evidence that no other alternative treatment less
restrictive than involuntary, inpatient treatment was sufficient.
Newring’s testimony reflected treatment options available only
within Corrections. Because the State presented no evidence
regarding treatment options outside Corrections, we reverse
the district court’s decision that involuntary, inpatient treat-
ment is the least restrictive treatment alternative. We remand
the cause back to the district court with directions to remand
the matter back to the Board, so that the Board can determine
the least restrictive treatment alternative as required under
§ 71-1209(1)(b).
affiRmed in paRt, and in paRt ReveRsed
and Remanded with diRections.
in Re inteRest of d.v., alleGed to be
a danGeRous sex offendeR.
d.v., appellant, v. mental health boaRd of the
fouRth Judicial distRict, appellee .
763 N.W.2d 717
filed April 10, 2009. 	No. S-08-446.
1. Mental Health: Appeal and Error. The district court reviews the determination
of a mental health board de novo on the record.
586 	277 NeBrASkA rePOrTS