In re Interest of G.H.

is labeled civil or criminal. Because R.K. has appealed from a
final order of contempt, we have jurisdiction.
We conclude that a court has inherent power to interpret
its own injunctive decree if a party later seeks clarification or
claims that a provision is unclear. Whether a party may appeal
from such an order depends upon whether it affects a substan-
tial right: it is not a final order if it does not change the par-
ties’ legal relationship by expanding or relaxing the decree’s
terms, dissolving the injunction, or granting additional injunc-
tive relief. Because SFAC did not claim the court’s order
interpreting the injunction granted additional relief to it, we
will not apply the law-of-the-case doctrine to hold that R.K.
was bound by findings in the court’s interpretative order
because it did not appeal until the court entered its final order
of contempt.
We conclude that the court erred in finding that SFAC had
proved beyond a reasonable doubt that R.K. willfully violated
the injunction by grinding on the pressure side of its hydraulic
valve spools. We therefore reverse the district court’s order
finding R.K. in contempt. We remand the cause with directions
that the court vacate its order finding R.K. in contempt and
awarding SFAC attorney fees and costs.
Finally, we conclude that as of the date of this opinion,
unless a statutory procedure imposes a different burden of
proof, it will be the complainant’s burden to prove civil con-
tempt by clear and convincing evidence.
R eveRsed and Remanded with diRections.
in Re inteRest of G.h., alleGed to be
a danGeRous sex offendeR.
G.h., appellant, v. mental health boaRd of
the fouRth Judicial distRict, appellee .
781 N.W.2d 438
Filed April 16, 2010. 	No. S-09-530.
1. Mental Health: Appeal and Error. The district court reviews the determination
of a mental health board de novo on the record.
708 	279 NeBRASKA RepoRTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:48 AM CST

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.
Appeal from the District Court for Douglas County: thomas
a. otepka, Judge. Affirmed.
Thomas C. Riley, Douglas County public Defender, and Zoë
R. Wade for appellant.
Jeffrey 	J. 	Lux, 	Deputy 	Douglas 	County 	Attorney, 	for
appellee.
heavican, 	c.J., 	wRiGht, 	connolly, 	G eRRaRd, 	stephan,
mccoRmack, and milleR-leRman, JJ.
stephan, J.
G.H. was convicted in 2002 of one count of sexual assault on
a child and one count of attempted first degree sexual assault.
He was sentenced to 3 to 5 years’ imprisonment on the first
count and to 10 to 15 years’ imprisonment on the second count,
the sentences to run concurrently. In May 2008, a petition was
filed pursuant to Nebraska’s Sex offender Commitment Act
(SoCA),1 alleging that G.H. was a dangerous sex offender.
After conducting an evidentiary hearing, the Mental Health
Board of the Fourth Judicial District (the Board) found G.H.
to be a dangerous sex offender and ordered his continued con-
finement for inpatient sex offender treatment. The district court
affirmed, and G.H. appeals.
I. FACTS
G.H.’s 2002 crimes were perpetrated on his 9-year-old niece
and his 42-year-old sister. on May 30, 2008, while G.H.
was still incarcerated for these offenses, the Douglas County
Attorney filed a petition alleging that G.H. was a dangerous sex
offender within the meaning of SoCA. The matter came on for
hearing before the Board on June 12.
1 Neb. Rev. Stat. §§ 71-1201 to 71-1226 (Reissue 2009).
IN Re INTeReST oF G.H. 	709
Cite as 279 Neb. 708

Mark e. Lukin, ph.D., was the only witness who testified
at the hearing. Lukin is a licensed psychologist employed by
the Nebraska Department of Correctional Services as a clinical
psychologist. At the time of his testimony, Lukin was in charge
of the inpatient mental health unit at the Lincoln Correctional
Center. His duties included supervising and conducting evalua-
tions of sex offenders.
Lukin evaluated G.H. in February 2008. The evaluation con-
sisted of a mental status examination; a review of G.H.’s prior
sex offender evaluations and his prior sex offender treatment;
a review of G.H.’s corrections file and presentence investiga-
tion report; a clinical interview; and the administration and
interpretation of several risk assessment instruments, includ-
ing the “STATIC-99,” the “Stable 2000,” and the “SoRAG.”
on the STATIC-99, G.H. scored a 6 on a scale of 0 to 12.
Lukin testified that this score placed G.H. in the high-risk
category for committing a future sexual offense. According to
the STATIC-99 manual, a person with a score of 6 has a 39-
percent chance of sexually reoffending within 5 years and a
52-percent chance of sexually reoffending within 15 years. on
the Stable 2000 test, G.H. received a score of 10, which Lukin
interpreted as indicating “broad problems in [his] ability to
manage [his] future reoffense risk.” on the SoRAG, G.H. was
determined to have a 58-percent chance to sexually reoffend
within 7 years and a 66-percent chance to sexually reoffend
within 10 years.
Based on all of the information obtained during his evalu-
ation of G.H., Lukin arrived at a three-part diagnosis with
a reasonable degree of psychological certainty: (1) alcohol
dependence, in remission due to the controlled prison environ-
ment; (2) a cognitive disorder; and (3) an antisocial personality
disorder with dependent features. Lukin testified that the alco-
hol dependence and cognitive disorder were “Axis I” mental
disorders as defined by the American psychiatric Association’s
“Diagnostic and Statistical Manual”2 (which we will refer to
as the “DSM-IV-TR”) and that the antisocial personality
2 See American psychiatric Association, Diagnostic and Statistical Manual
of Mental Disorders (4th ed. text rev. 2000).
710 	279 NeBRASKA RepoRTS

disorder was considered an “Axis II” disorder as defined by
the DSM-IV-TR. Lukin opined that the alcohol dependence
was a “primary concern” as to whether G.H. was likely to
reoffend sexually and that while the cognitive disorder did not
contribute to the risk of reoffense, it was a treatment interfer-
ence factor that limited G.H.’s ability to benefit from treat-
ment. Lukin opined that the antisocial personality disorder
was also a primary factor in assessing the risk of reoffense.
Lukin testified that because of the disorders he diagnosed,
G.H. would “present an ongoing risk” of danger to himself
or others. Lukin also testified that because of the disorders,
there was an increased risk that G.H. would engage in repeat
acts of violence, and that G.H. was substantially unable to
control his behavior regarding sexual offenses. Lukin testified
that upon release from incarceration, G.H. would be at “high
risk to sexually and/or violently reoffend compared to other
individuals who have already committed sexual or violent
crimes.” Lukin testified that G.H. would benefit from treat-
ment, and although Lukin had not prepared a specific treat-
ment plan for G.H. at the time of his testimony, it was Lukin’s
opinion based upon the actuarial risk and other information he
reviewed that “the highest available level of care” would be
appropriate for G.H.
After considering all the evidence, the Board found by
clear and convincing evidence that G.H. was a dangerous sex
offender and that inpatient treatment was the least restrictive
available therapy for him. The Board determined on the basis
of Lukin’s testimony that G.H. “demonstrates a constellation
of mental illness,” including alcohol addiction, antisocial per-
sonality disorder, and cognitive impairment that “would make
him more likely to engage in repeat acts of sexual violence.”
The Board ordered G.H. placed in the custody of the Nebraska
Department of Health and Human Services for inpatient sexual
offender treatment.
G.H. filed a petition in error in the district court for Douglas
County seeking review and reversal of the commitment order
on several grounds. The district court overruled the petition in
error and affirmed the commitment order. G.H. then perfected
this timely appeal from the order of the district court.
IN Re INTeReST oF G.H. 	711
Cite as 279 Neb. 708

II. ASSIGNMeNTS oF eRRoR
G.H. assigns, restated and renumbered, that the district court
erred in finding clear and convincing evidence that he was
a dangerous sex offender because (1) the evidence does not
support a finding that G.H. suffers from an antisocial person-
ality disorder or that an antisocial personality disorder makes
G.H. dangerous; (2) the court erroneously considered Lukin’s
diagnosis of alcohol dependence as a mental illness which
could subject G.H. to commitment; (3) the evidence does not
support a finding that G.H. suffered from alcohol dependence
at the time of the hearing or that alcohol dependence makes
G.H. dangerous; (4) the evidence does not support a finding
that G.H. suffers from a cognitive disorder or that a cognitive
disorder makes G.H. dangerous; (5) the actuarial instruments
employed during G.H.’s assessment do not provide a sufficient
basis for Lukin’s opinion; (6) Lukin’s opinion of dangerous-
ness, expressed entirely in terms of risk, is insufficient to
support a finding that G.H. is a dangerous sex offender; and
(7) there was insufficient evidence that the proposed treatment
plan was the least restrictive alternative.
III. STANDARD oF ReVIeW
[1,2] The district court reviews the determination of a men-
tal health board de novo on the record.3 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.4
IV. ANALYSIS
Nebraska has two statutory methods by which individuals
who pose a risk to society due to a mental disorder may be
subjected to involuntary custody and treatment. The Nebraska
Mental Health Commitment Act (MHCA)5 applies to any
3 In re Interest of D.V., 277 Neb. 586, 763 N.W.2d 717 (2009); In re Interest
of J.R., 277 Neb. 362, 762 N.W.2d 305 (2009), cert. denied 558 U.S. 857,
130 S. Ct. 148, 175 L. ed. 2d 96.
4 See In re Interest of J.R., supra note 3.
5 Neb. Rev. Stat. §§ 71-901 to 71-962 (Reissue 2009).
712 	279 NeBRASKA RepoRTS

person who is mentally ill and dangerous.6 SoCA applies spe-
cifically to convicted sex offenders who have completed their
jail sentences but continue to pose a threat of harm to others.7
In order to subject a person to involuntary confinement for
purposes of treatment under SoCA, the State has the burden
to prove by clear and convincing evidence that “(a) the subject
is a dangerous sex offender and (b) neither voluntary hospital-
ization 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.”8
Section 	71-1203(1) 	of 	SoCA 	incorporates 	Neb. 	Rev.
Stat. § 83-174.01(1) (Reissue 2008), which defines the term
“[d]angerous sex offender” as
(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 personal-
ity 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.
1. danGeRous sex offendeR
(a) personality Disorder
Lukin testified with reasonable psychological certainty that
G.H. had an antisocial personality disorder with dependent
features. Lukin reached this diagnosis on the basis of G.H.’s
“long-standing pattern of repeated and varied offenses.” There
is no evidence disputing this diagnosis. G.H. argues that it
is entitled to no weight because Lukin testified that the per-
sonality disorder “might reduce [G.H.’s] likelihood of car-
ing or being motivated to avoid reoffense and subsequent
6 § 71-902; In re Interest of O.S., 277 Neb. 577, 763 N.W.2d 723 (2009),
cert. denied 558 U.S. 857, 130 S. Ct. 148, 175 L. ed. 2d 96.
7 § 71-1202; In re Interest of O.S., supra note 6.
8 § 71-1209(1). See In re Interest of D.V., supra note 3.
IN Re INTeReST oF G.H. 	713
Cite as 279 Neb. 708

consequence for those crimes.” But this isolated statement
focuses on the personality disorder alone, not the combined
effect of the personality disorder and other diagnoses, which
we discuss below. We conclude that the evidence establishes
the diagnosis of antisocial personality disorder and that it was
properly considered by the district court.
(b) Alcohol Dependence
G.H. contends that alcohol dependence cannot be consid-
ered a “mental illness” for purposes of SoCA, based upon
definitional differences between SoCA and MHCA. SoCA
incorporates by reference9 the definition of “mentally ill” found
in MHCA:
Mentally ill means having a psychiatric disorder that
involves a severe or substantial impairment of a person’s
thought processes, sensory input, mood balance, mem-
ory, or ability to reason which substantially interferes
with such person’s ability to meet the ordinary demands
of living or interferes with the safety or well-being
of others.10
But SoCA does not incorporate MHCA’s definition of “sub-
stance dependent,” which means
having a behavioral disorder that involves a maladaptive
pattern of repeated use of controlled substances, illegal
drugs, or alcohol, usually resulting in increased toler-
ance, withdrawal, and compulsive using behavior and
including a cluster of cognitive, behavioral, and physio-
logical symptoms involving the continued use of such
substances despite significant adverse effects resulting
from such use.11
Nor does SoCA include its own definition of “substance
dependent.” Under MHCA, a person may be adjudicated as
a “[m]entally ill and dangerous person” and subjected to
involuntary custody and treatment on the basis of either mental
9 §§ 71-1203(1) and 83-174.01(3).
10 § 71-907.
11 § 71-913.
714 	279 NeBRASKA RepoRTS

illness or substance dependence.12 G.H. argues that because
SoCA does not incorporate the language of MHCA with
respect to substance dependence, substance dependence cannot
be considered a mental illness for purposes of determining that
an individual is a dangerous sex offender.
Lukin testified that alcohol dependence is an Axis I mental
disorder as defined by the DSM-IV-TR, and he considered
the alcohol dependence and antisocial personality disorder as
primary factors in assessing the risk that G.H. would reoffend
sexually. Lukin testified: “I did not [diagnose G.H.] with a
paraphiliac condition simply because it’s the prominence of his
substance dependence and antisocial personality. He would be
characterized more as an opportunistic sex offender and some-
one with general antisocial personality independent rather than
a primary paraphiliac or patterned sex offender.”
We note that because G.H. had been convicted of two sex
offenses, he could be adjudicated as a dangerous sex offender
on the basis of the personality disorder alone under the alterna-
tive definition of § 83-174.01(1)(b). on these facts, we con-
clude that the diagnosis of alcohol dependence was properly
considered in conjunction with the diagnosis of an antisocial
personality disorder in the calculus of whether G.H. was a dan-
gerous sex offender within the meaning of SoCA.
We are not persuaded by G.H.’s argument that the diagnosis
of alcohol dependence should be disregarded because Lukin
described it as “in remission.” Lukin attributed this fact to the
“controlled environment” created by G.H.’s incarceration, but
testified that G.H. nevertheless displayed signs consistent with
alcohol dependence.
(c) Cognitive Disorder
G.H. argues that Lukin’s diagnosis of a cognitive disorder
was an insufficient basis upon which to conclude that he was
a dangerous sex offender. Lukin explained that this diagnosis
“is really an acknowledgement that there are some impair-
ments in [G.H.’s] cognition without being able to fully assess
the etiology or the causal factors.” Lukin regarded this as a
12 See § 71-908.
IN Re INTeReST oF G.H. 	715
Cite as 279 Neb. 708

“relatively minor factor” in assessing the risk of reoffense, but
he testified that it would “delimit or may constrain [G.H.’s]
ability to gain the full amount of treatment that he might other-
wise have if he did not have the condition.” It is clear that
Lukin did not base his opinion that G.H. was a dangerous sex
offender solely or primarily on his cognitive disorder diagno-
sis, but merely considered the diagnosis with other factors.
As such, the diagnosis was properly considered by the Board
and the district court. The district court specifically noted
the limitations on the significance of this diagnosis to which
Lukin testified.
(d) Danger of Reoffense
To establish that G.H. was a dangerous sex offender under
SoCA, the State was required to prove by clear and convincing
evidence that he is likely to engage in repeat acts of sexual vio-
lence and that he is substantially unable to control his criminal
behavior.13 In this context, “[l]ikely 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.”14
Similarly, “[s]ubstantially unable to control . . . criminal behav-
ior means having serious difficulty in controlling or resisting
the desire or urge to commit sex offenses.”15
G.H. argues that the results of the actuarial risk assessment
instruments do not provide a sufficient basis for Lukin’s opin-
ion that G.H. would pose a danger if released without treat-
ment. G.H. contends that the results measure actuarial chance
but provide no insight on the specific question of whether
he would reoffend if released without treatment. But as G.H.
acknowledges in his brief, Lukin did not rely exclusively
on the results of the STATIC-99, Stable 2000, and SoRAG
assessments in forming his opinions. Lukin also considered
the history he obtained from G.H. and the clinical interview he
13 See §§ 71-1203(1), 71-1209(1), and 83-174.01(1). See, also, In re Interest
of O.S., supra note 6.
14 §§ 71-1203(1) and 83-174.01(2).
15 §§ 71-1203(1) and 83-174.01(6).
716 	279 NeBRASKA RepoRTS

conducted. Lukin testified that the risk assessment instruments
were peer reviewed and generally accepted in the field of psy-
chology as a means of assessing the risk that a convicted sex
offender will reoffend.
We have noted in a different but related context that the
nonexistence of an instrument which will perfectly predict
future conduct does not preclude the use of rationally based
instruments developed and validated by mental health profes-
sionals.16 In a recent SoCA case,17 we concluded that a psy-
chologist’s evaluation which included STATIC-99 and SoRAG
scores was sufficient and probative of the fact that a sex
offender remained a danger to society. Although, in the instant
case, the Stable 2000 and SoRAG instruments were adminis-
tered several months before the hearing, there is no indication
in the record that this affected the validity of the results as a
means of assessing the risk of recidivism at the time of the
hearing. We are satisfied that there was adequate foundation
for the actuarial risk assessment scores and conclude that they
were properly considered by the Board and the district court as
part of the basis for Lukin’s opinions.
G.H. also argues that Lukin’s opinion of dangerousness,
expressed entirely in terms of risk, is insufficient to support a
finding that G.H. is a dangerous sex offender. G.H. contends
that Lukin’s opinions establish nothing more than an increased
risk or possibility that he will reoffend without treatment.
According to G.H., this is insufficient under cases holding that
in order to support civil commitment in civil mental health
proceedings, a medical expert must establish that the subject
poses a danger to others to a reasonable degree of medi-
cal certainty.18
This is the same standard that we require for expert medical
opinion to establish causation under tort law. In that context,
we have held that although expert medical testimony need not
16 Slansky v. Nebraska State Patrol, 268 Neb. 360, 685 N.W.2d 335 (2004).
17 In re Interest of O.S., supra note 6.
18 See, In re Interest of Tweedy, 241 Neb. 348, 488 N.W.2d 528 (1992); In
re Interest of Rasmussen, 236 Neb. 572, 462 N.W.2d 621 (1990); In re
Interest of Headrick, 3 Neb. App. 807, 532 N.W.2d 643 (1995).
IN Re INTeReST oF G.H. 	717
Cite as 279 Neb. 708

be couched in the magic words “reasonable medical certainty”
or “reasonable probability,” it must be sufficient as examined
in its entirety to establish the crucial causal link between the
plaintiff’s injuries and the defendant’s negligence.19 Medical
expert testimony regarding causation based upon possibility or
speculation is insufficient; it must be stated as being at least
“probable,” in other words, more likely than not.20 Applying
the same principle here, the question is whether Lukin estab-
lished a probability that G.H. would commit repeat acts of
sexual violence.
Lukin testified that in his professional opinion, G.H. fell
within the statistical range of sexual and violent reoffense
predicted by his SoRAG scores, i.e., a 58-percent chance of
sexual or violent reoffense, or both, within 7 years and a 76-
percent chance of sexual or violent reoffense, or both, within 10
years. Asked if the conditions he diagnosed made G.H. “likely
to engage in repeat acts of violence,” Lukin testified, “Yes. It
increases his risk.” Lukin further testified that G.H. attributed
his commission of sex offenses to alcohol, but that to Lukin’s
knowledge, G.H. had never undergone inpatient alcohol treat-
ment. Based upon his clinical interview and review of records
and actuarial risk assessments, Lukin opined that G.H. would
be “at high risk to sexually and/or violently reoffend compared
to other individuals who have already committed sexual or
violent crimes.” Lukin further testified that due to the diag-
nosed mental and personality disorders, G.H. was substantially
unable to control his behavior with regard to sexual offenses.
We conclude that this testimony, viewed in its entirety, was suf-
ficient as a matter of law to support the findings of the Board
and the district court that G.H. was a dangerous sex offender
for purposes of SoCA.
2. least R estRictive tReatment alteRnative
In addition to establishing that G.H. was a dangerous sex
offender, the State also had the burden of proving by clear
19 Fackler v. Genetzky, 263 Neb. 68, 638 N.W.2d 521 (2002); Doe v. Zedek,
255 Neb. 963, 587 N.W.2d 885 (1999).
20 Id.
718 	279 NeBRASKA RepoRTS

and convincing evidence that neither voluntary hospitalization
nor other alternative treatment less restrictive than inpatient
treatment would prevent him from harming himself or oth-
ers.21 Lukin testified that while he had not prepared a specific
treatment plan for G.H., it was his opinion that due to G.H.’s
relatively high risk of recidivism and the fact that G.H. had
limited experience with independent living during the past 20
years due to his incarceration, G.H. would require the “highest
available level of care,” and that an inpatient treatment pro-
gram would be the appropriate and least restrictive treatment
alternative for him. In response to a question from a member
of the Board regarding an appropriate treatment plan for G.H.,
Lukin testified:
[M]y professional judgment would be that what would
be best for [G.H.] would also be best for the community,
and that is a residential or secure setting to continue the
efforts that he started already, and to over a period of time
step him down.
And rather than releasing him directly to an environ-
ment where he’s had very little success, living inde-
pendently in the community, it would allow him a step
toward greater approach so that his skills increase both in
managing his sexual urges and his sobriety.
We conclude that Lukin’s testimony was sufficient as a matter
of law to meet the State’s burden of justifying civil commit-
ment of a dangerous sex offender under SoCA.
V. CoNCLUSIoN
For the reasons discussed, we conclude as a matter of law
that the judgment of the district court affirming the findings of
the Board is supported by clear and convincing evidence, and
we affirm.
affiRmed.
21 See, § 71-1209(1)(b); In re Interest of O.S., supra note 6.
IN Re INTeReST oF G.H. 	719
Cite as 279 Neb. 708