In re Care & Treatment of Johnson, No. 89,763.

• Decision Date: 12 March 2004
• Docket Number: No. 89,763.
• Citation: 85 P.3d 1252,32 Kan.App.2d 525
• Parties: In the Matter of the Care and Treatment of EDWARD JOHNSON.
• Court: Kansas Court of Appeals

32 Kan.App.2d 525

85 P.3d 1252

In the Matter of the Care and Treatment of EDWARD JOHNSON.

No. 89,763.

Court of Appeals of Kansas.

Opinion filed March 12, 2004.

Russell L. Mills, of Derby, for appellant.

Nola F. Wright, assistant attorney general, and Phill Kline, attorney general, for appellee.

Before GREENE, P.J., ELLIOTT, J., and KNUDSON, S.J.

KNUDSON, J.

Edward C. Johnson has been committed to the Larned State Security Hospital as a sexually violent predator under the Sexually Violent Predator Act (Act), K.S.A. 59-29a01 et seq. In this appeal from the commitment order, Johnson challenges the district court's findings and conclusions that (1) res judicata or collateral estoppel does not apply; (2) there was no violation of the 60-day trial requirement imposed under K.S.A. 2000 Supp. 59-29a06; (3) a conviction of a sexually violent offense based upon a no contest plea may be used by the State to establish the defendant is a sexually violent predator under K.S.A. 2000 Supp. 59-29a02(a); and (4) the defendant's convictions were properly admitted as evidence at trial. After initial briefing, at this court's request, the parties filed supplemental briefs addressing whether the 2003 amendments to K.S.A. 59-29a06 could be applied retroactively.

We affirm after concluding the district court did not err in its findings and conclusions. Consequently, the issue of retroactive application of 2003 amendments to K.S.A. 59-29a06 is moot.

Factual And Procedural Overview

In March 2000, Johnson was the subject of a clinical services report requested by the Department of Corrections (DOC). At the time, Johnson was incarcerated after pleading no contest to sexual exploitation of a child and possession of child pornography. The purpose of the report was to plan for Johnson's release from the DOC and to recommend whether Johnson should be identified as a potential risk under the Act. The report concluded Johnson scored very high on a psychological test assessing risk of future violence. The report's preparers recommended Johnson be required to complete an approved sex offender treatment program in a structured, secure environment.

Shortly thereafter, the State initiated a commitment proceeding against Johnson under the Act in Sedgwick County; this case was docketed as Case No. 00 P 650. In December 2000, the district court dismissed the action for lack of subject matter jurisdiction based on the decision of In re Care & Treatment of Goracke, 27 Kan. App. 2d 837, 9 P.3d 595 (2000). The district court found a probable cause hearing was held in the case on June 15, 2000, but no continuances had been granted and no trial had been held within the 60-day period required in K.S.A. 2000 Supp. 59-29a06. This was the sole basis for the dismissal. The State apparently did not appeal from this dismissal. Johnson was thereafter released from custody.

On December 28, 2000, the DOC filed a report that Johnson violated his postrelease supervision conditions by being discharged from a halfway house program. It noted Johnson was discharged after being fired from his employment for making inappropriate comments to a female coworker and for propositioning several male members of the halfway house's kitchen staff. Because of these violations, Johnson's postrelease supervision was revoked, and he was returned to a DOC facility. This revocation occurred less than a month after the dismissal of the sexual predator action and his resulting release from custody.

Johnson was scheduled to be re-released from the DOC on April 3, 2001. In February 2001, Johnson underwent another predischarge psychological assessment. The clinical services report referred to the report generated prior to Johnson's release in 2000, but it also included information from events occurring after the 2000 report. The additional information included incidents which allegedly occurred during Johnson's 2000 sexually violent predator evaluation at Larned and his alleged actions while on postrelease supervision. Again, Johnson was determined to be a high risk to reoffend in a sexual manner.

Before Johnson's re-release, the State filed a second sexually violent predator petition in Sedgwick County District Court, which was docketed as Case No. 01-P-266. The petition alleged Johnson was confined at the Hutchinson Correction Facility and that the DOC had certified he might be a sexually violent predator based on this 1996 conviction for sexual exploitation of a child. The State requested Johnson be determined to be a sexually violent predator.

The district court scheduled a probable cause hearing for March 15, 2001, and appointed Johnson counsel. Following that hearing, the district court concluded there was probable cause to conclude Johnson was a sexually violent predator and ordered he be sent to Larned for an evaluation. Jury trial was scheduled for May 14, 2001. On May 11, 2001, Johnson filed a motion for an independent evaluation and a motion to dismiss. Johnson referred to the first sexually violent predator action brought against him in 2000 and asserted the State was barred from bringing the present case due to collateral estoppel, res judicata, the statute of limitations, and lack of jurisdiction. Johnson also argued that his no contest plea to the charges for which he was incarcerated could not be used as a basis for a sexually violent predator action. Both motions were considered by the district court on May 14, 2001. The court denied Johnson's motion to dismiss but granted his motion for an independent evaluation. Over Johnson's objection the court then continued the trial for good cause shown until June 18, 2001.

At jury trial, Robert Huerter, a licensed clinical psychotherapist from Larned, testified. Huerter testified that Johnson was a psychopath—he had no social or moral compass and could engage in illegal activity without any sense of remorse. According to Huerter, Johnson scored high on the Rapid Risk Assessment for Sex Offense Recidivism. Huerter diagnosed Johnson with hebephilia, pedophilia, a bipolar II disorder, and antisocial personality disorder with narcissistic traits. Huerter testified that Johnson was likely to commit further acts of sexual violence or predatory acts.

The State also presented the testimony of Dr. J.L. Fernando, a staff psychiatrist at Larned. Fernando's testimony was similar to Huerter's and confirmed the diagnoses listed by Huerter. Fernando also agreed that Johnson met the criteria of a sexually violent predator.

Johnson called Robert Barnett, a clinical psychologist, as a witness. Barnett saw Johnson on several occasions dating back to the time his underlying criminal case was pending. He gave Johnson several psychological tests, although none of these tests measured factors which would indicate whether Johnson was a sexual predator. Barnett confirmed that Johnson suffered from a bipolar disorder of a hypomanic nature, which meant he was manic most of the time but never reached a peak where he was absolutely out of control. Such a disorder can be readily treated by medication. With medication and counseling, Johnson's prognosis would be fair to good. Barnett opined that Johnson was not a pedophile and did not think he qualified under the statute as a sexually violent predator.

Johnson also testified on his own behalf. He testified about his earlier Minnesota conviction involving allegations involving a 15-year-old girl Johnson worked with at a carnival. As a result of these allegations, Johnson pled guilty to a gross misdemeanor charge and a felony charge was dropped.

Johnson also testified about his 1996 Sedgwick County conviction. He indicated he was feeling well so he stopped taking his bipolar medication. He began surfing the internet for pornography and downloaded several files of what he thought involved adult pornography. When he opened some of the files, however, he found pictures including young children. Someone saw one of these pictures on his computer and reported him. His house was searched, and his computer was seized. About one-fourth of the 40 photos found on Johnson's computer had children estimated to be under the age of 16. Johnson asserted he was only looking for adult pornography.

Johnson testified he did not want to return to any prison-type setting and listed a number of things he thought would help him stay out of trouble. On cross-examination, Johnson admitted having a disciplinary report while in prison for possessing pornography. This charge was based, in part, on pictures Johnson had of young children in various stages of dress. He also admitted self-reporting a relationship he had with a 14-year-old male when Johnson was in his mid to late 20's. He essentially denied or downplayed the alleged incidents that lead to the revocation of his parole.

After hearing this evidence, the jury returned a verdict finding Johnson was a sexually violent predator. Consequently, the court ordered Johnson be committed to the custody of the Secretary of Social and Rehabilitation Services (SRS) for control, care, and treatment.

Johnson filed a timely motion for judgment of acquittal and motion for new trial. The district court treated the motion for judgment of acquittal as a motion for judgment notwithstanding the verdict; it then denied both posttrial motions.

Applicability of Res Judicata or Collateral Estoppel

Johnson argues the district court erred in not dismissing the second sexually violent predator action brought against him under the doctrines of res judicata or collateral estoppel. Whether the doctrine of res judicata or collateral estoppel applies is a question of law over which an appellate court has plenary review. Grimmett v. S & W Auto Sales Co., 26 Kan. App. 2d 482, 485, 988 P.2d 755 (1999).

"An issue is res judicata when four conditions concur: (1) identity in the thing sued for, (2) identity of the cause of action, (3) identity of persons and parties to the action, and [4] identity

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