In re Care and Treatment of Crane

• Decision Date: 14 July 2000
• Docket Number: No. 82,080.[1],82,080.[1]
• Citation: 7 P.3d 285,269 Kan. 578
• Parties: In the Matter of the Care and Treatment of MICHAEL T. CRANE, Appellant.
• Court: Kansas Supreme Court

269 Kan. 578

7 P.3d 285

In the Matter of the Care and Treatment of MICHAEL T. CRANE, Appellant.

No. 82,080.¹

Supreme Court of Kansas.

Opinion filed July 14, 2000.

John C. Donham, of Overland Park, argued the cause and was on the brief for appellant.

W. Scott Toth, assistant district attorney, argued the cause, and Paul J. Morrison, district attorney, Steven J. Obermeier, assistant district attorney, and Carla J. Stovall, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

ALLEGRUCCI, J.:

Michael T. Crane appeals from the district court's order committing him to custody under the Sexually Violent Predator Act, K.S.A. 59-29a01 et seq. (Act).

In State v. Crane, 260 Kan. 208, 918 P.2d 1256 (1996), this court affirmed Michael Crane's conviction of lewd and lascivious behavior for exposing himself to a tanning salon attendant on January 6, 1993. His convictions of attempted aggravated criminal sodomy, attempted rape, and kidnapping were reversed. They arose out of an incident in a video store that took place approximately 30 minutes after the tanning salon incident.

The aggravated sexual battery conviction that supplied the prior conduct element of Crane's sexual predator determination arose out of the video store incident. In that instance, Crane waited until he was the only customer in a video store and then grabbed the clerk from behind. With his genitals exposed, he lifted and pushed her and squeezed her neck with his hands. Crane three times ordered her to perform oral sex and said he was going to rape her. The attack ended when Crane suddenly stopped and ran out of the store.

Although the kidnapping charge could not be renewed, other charges arising from this incident were refiled. Pursuant to a plea agreement, Crane pled guilty to one count of aggravated sexual battery, a class D felony.

The present action was initiated when the State filed a petition in the district court seeking to have Crane evaluated and adjudicated a sexually violent predator. At the commitment trial, the State presented evidence of Crane's inappropriate sexual behavior on several occasions as well as the testimony of mental health professionals.

Psychologist Douglas Hippe evaluated Crane in 1994 and reviewed the mental health records subsequently compiled for Crane. He concluded that Crane suffers from antisocial personality disorder. Of the seven criteria listed in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) for antisocial personality disorder, Crane consistently exhibits six, in Hippe's view. Crane also suffers from exhibitionism, which is a separate disorder. According to Hippe, exhibitionism alone would not be a sufficient basis for finding that a person was a sexual predator. Crane, in his opinion, is a sexual predator due to his combination of antisocial personality disorder and exhibitionism. He cited the increasing frequency of incidents involving Crane, increasing intensity of the incidents, Crane's increasing disregard for the rights of others, and his increasing daring and aggressiveness. Psychologist Robert Huerter tested and interviewed Crane in 1993 with regard to Crane's claiming to have been in a blackout state during the video store incident. He concluded that Crane had not experienced blackout.

Psychiatrist Leonardo Mabugat testified that Crane suffers from antisocial personality disorder, "a pervasive pattern of disregard for and violation of the rights of others," which usually starts in or around adolescence.

The victim of the video store incident testified that the prosecuting attorney had talked with her about the State's entering into a plea agreement with Crane. The victim had been upset because she did not think that Crane would be serving enough time.

At the commitment trial, the victim expressed her disappointment in the course Crane's prosecution had taken. The prosecutor drew out her dissatisfaction by asking, "So would it be fair to say that for a crime that this Court gave a 35-to-life sentence to Mr. Crane, he only served a little over four years?" And he followed up on her affirmative response with "[a]nd understandably you're very upset about how the system treated you in this case, right?" "Yes, very," she answered. The victim had been told by the State that the kidnapping charge could not be refiled against Crane on account of a technicality.

In this regard, the prosecutor had suggested to her that obtaining a guilty plea "was the best way to go in order to be able to go down the line" and use the option of the Act. The victim agreed to the plea bargain because she believed "it was the only way to make sure that it didn't end there." The victim testified, "I was not aware that there was an option of going to trial and going through this or agreeing to the plea and then using the Sexual Predator Act. As I was—as I understood, this was the only option, but if we can get a—some kind of a conviction, then we can use this option later down the road to make sure he stays off the street."

Crane raises several issues on appeal; however, the controlling issue is whether it is constitutionally permissible to commit Crane as a sexual predator absent a showing that he was unable to control his dangerous behavior. To answer that question, we must revisit Kansas v. Hendricks, 521 U.S. 346, 138 L. Ed.2d 501, 117 S. Ct. 2072 (1997). The majority opinion, written by Justice Thomas, controls the result in this case. Crane contends that the trial court erred in ruling that the Supreme Court's holding in Hendricks does not require a showing of a volitional impairment that prevents him from controlling his dangerous behavior when the respondent's mental disorder is a personality disorder. In its journal entry of the various stages in this proceeding, the district court ruled on February 25, 1998:

"Respondent mixes legal and psychiatric terms. The Court finds the commission of a sexual crime and the existence of a mental abnormality or personality disorder which makes the person likely to engage in future predatory acts of violence are separate concepts and not interdependent upon one another in the sexually violent predator context. The Court denies Respondent's Motion for Summary judgment stating as a matter of law that Respondent misinterprets the holding of Kansas v. Hendricks, 117 S. Ct. 2072 (1997) by arguing the State must prove the existence of a mental disorder that so impairs the volitional control of Respondent as to render him unable to control his dangerous behavior. The Court holds the State must only prove the existence of a mental disorder that makes Respondent likely to reoffend."

On August 3, 1998, the district court held as a matter of law "that even though the State's expert witnesses might agree that Respondent's mental disorder does not impair his volitional control to the degree he cannot control his dangerous behavior, that K.S.A. 59-29a01 et seq. does not specify such a required element to be proven."

Accordingly, the jury was instructed that in order to establish that Crane is a sexually violent predator, the State had to prove (1) that Crane had been convicted of aggravated sexual battery and (2) that he "suffers from a mental abnormality or personality disorder which makes the respondent likely to engage in future predatory acts of sexual violence, if not confined in a secure facility." "Likely" was defined as "more probable to occur than not to occur." "Mental abnormality" was defined for the jury in accordance with K.S.A. 1999 Supp. 59-29a02(b) as a "condition affecting the emotional or volitional capacity which predisposes a person to commit sexually violent offenses in a degree constituting such person a menace to the health and safety of others." "Personality disorder" was defined for the jury as a "condition recognized by the ... [DSM IV], and includes antisocial personality disorder."

Crane argues that Hendricks states in clear, unambiguous language that the constitutionality of the commitment procedure created by the Act depends on its application being limited to persons who cannot control their dangerous behavior. He quotes a number of passages from the majority opinion in Hendricks that bear on the respondent's inability to control his or her conduct. There is no question that the majority opinion is replete with references to the commitment of persons who cannot control their own behavior. See, e.g., 521 U.S. at 357, 358, 360, 362, and 364.

Hendricks admitted that he had repeatedly sexually abused children and that he was unable to control the urge to do so. 521 U.S. at 355, 360. On appeal from his commitment proceeding, this court invalidated the Act on the ground that it did not predicate commitment on a finding of mental illness, which was a requirement of substantive due process. In re Care & Treatment of Hendricks, 259 Kan. 246, 912 P.2d 129 (1996). The Supreme Court granted certiorari on the State's petition to consider the due process issue as well as on Hendricks's cross-petition to consider his federal ex post facto and double jeopardy claims. 521 U.S. at 350.

On the question of due process, the Supreme Court rejected this court's requiring a finding of mental illness in order to override an individual's constitutionally protected liberty interest. 521 U.S. at 356-60. The Supreme Court catalogued constitutionally permissible instances in which "States have in certain narrow circumstances provided for the forcible civil detainment of people who are unable to control their behavior and who thereby pose a danger to the public health and safety." (Emphasis added.) 521 U.S. at 357. The typical state statute's linking of a finding of dangerousness with an additional factor, such as mental illness, is noted, as is the Kansas Act's conformance to the pattern:

"These added statutory requirements serve to limit involuntary civil

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