In re Care and Treatment of Patterson

Citation301 P.3d 789
Decision Date29 January 2014
Docket NumberNo. 107,232.,107,232.
PartiesIn the Matter of the Care and Treatment of Dale D. PATTERSON, Jr.
CourtCourt of Appeals of Kansas

301 P.3d 789

In the Matter of the Care and Treatment of Dale D. PATTERSON, Jr.

No. 107,232.

Court of Appeals of Kansas.

May 24, 2013.
Review Denied Jan. 29, 2014.

Appeal from Douglas District Court; Robert W. Fairchild, Judge.
Carl Folsom, III, of Bell Folsom, P.A., of Olathe, for appellant.

Natalie Chalmers, assistant solicitor general, for appellee.

Before MALONE, C.J., BUSER, J., and ERNEST L. JOHNSON, District Judge Retired, assigned.



Dale D. Patterson, Jr., appeals the district court's determination that he is a sexually violent predator and his civil commitment based on that finding. Patterson raises numerous claims of error committed by the district court including constitutional challenges to his commitment. He also challenges the sufficiency of the evidence to support the determination that he is a sexually violent predator. We agree with Patterson on one claim: the district court impermissibly failed to analyze all the required elements before determining that Patterson was a sexually violent predator. As a result, we remand for the district court to conduct the proper analysis and make appropriate findings. We affirm the district court's judgment on all remaining issues.

In 2002, Patterson pled no contest to and was convicted of two counts of aggravated criminal sodomy. In April 2003, the district court sentenced Patterson to 117 months' imprisonment for the crimes.

On December 8, 2010, the State filed a petition to commence proceedings under the Sexually Violent Predator Act (SVPA), K.S.A. 59–29a01 et seq. Shortly thereafter, the State filed an amended petition that included an attached report from Dr. Bradford Sutherland. Sutherland diagnosed Patterson with Axis I diagnoses of pedophilia, non-exclusive type, sexually attracted to males, and paraphilia not otherwise specified. Sutherland had also completed the Static–99 actuarial instrument; Patterson scored a three, placing his risk of recidivism in the “moderate low” range. However, Sutherland opined that the score underestimated Patterson's risk of sexual recidivism.

The district court scheduled a probable cause hearing for January 7, 2011. On January 5, 2011, Patterson filed a motion to continue the hearing to allow his recently appointed attorney more time to prepare. At the hearing, the district court denied the continuance in part to allow Sutherland to testify as the State's only witness. The district court continued the remainder of the hearing in order to allow Patterson to present evidence at a later date. On February 3, 2011, however, Patterson filed a notice of his intent to present no evidence.

On February 11, 2011, the district court filed a journal entry stating that it found probable cause to believe that Patterson was a sexually violent predator and ordering that Patterson be taken into custody and committed to Larned State Security Hospital (LSSH) for evaluation. In March 2011, Dr. Michael Klemens evaluated Patterson and completed actuarial instruments to assess his risk of recidivism. On April 22, 2011, the district court entered an order authorizing payment for Dr. Robert Barnett to evaluate Patterson for the defense; Barnett completed his evaluation of Patterson on July 5, 2011.

On August 23, 2011, Patterson filed a motion to dismiss, alleging several grounds for dismissal. First, Patterson argued that the district court's finding of probable cause solely on the State's petition violated his due process rights. Patterson also argued that due to the State's failure to provide him with sex offender treatment while he was in prison, the civil commitment process violated his due process rights. Patterson also contended that the State's failure to provide effective treatment to people committed under the SVPA rendered the SVPA unconstitutional. That same day, Patterson filed a motion in limine requesting that the district court exclude at trial specific instances of character evidence, evidence of a prior no-contest plea, evidence of dismissed criminal charges, and references to Patterson as a “sexually violent predator.” The State filed responses to both motions.

The district court held a hearing on the motions on October 20, 2011. Patterson had planned to present evidence and testimony at the hearing, but the witness and records did not arrive, so Patterson filed a notice of supplemental authority. The district court rejected most of Patterson's arguments for dismissal, taking the issue involving sex offender treatment in prison under advisement. Concerning the motion in limine, the district court determined that evidence of any prior convictions would be allowed only to show that Patterson was convicted of a sexually violent offense. Patterson also argued that K.S.A. 60–456 should be applied at his trial; the legislature enacted K.S.A.2012 Supp. 59–29a06(c) after Patterson's probable cause hearing but before the motions hearing to create an exception in SVPA cases to the evidentiary rules in K.S.A. 60–456 for expert testimony.

On October 28, 2011, Patterson filed supplemental authority supporting his motions. The same day, the district court held a telephone conference in which it ruled that the State's failure to provide sex offender treatment to Patterson while he was in prison did not violate his due process rights. The district court further found that it could not rule as a matter of law that the SVPA was unconstitutional; thus, the district court denied the motion to dismiss on that basis.

Patterson waived his right to a jury trial and the district court began the bench trial on October 31, 2011. Before commencing the trial, the district court denied Patterson's request to apply K.S.A. 60–456. At the State's request, the district court also took judicial notice of the court file in the underlying criminal case. Sutherland and Klemens testified for the State. The following day, before presentation of any testimony, Patterson moved for a mistrial and dismissal of the case based on the fact that the prior night the State served him with new discovery, including documents from Patterson's previous admissions to LSSH and reports from a criminal case, which Klemens relied upon in forming his opinion but which had not been previously disclosed to Patterson. One document was a report by Douglas County Sheriffs Deputy Doug Woods, who was involved in the investigation of a previous criminal case. The district court offered to continue the trial so that Patterson could read the documents, but Patterson's counsel declined. The State offered to call Woods as a witness, but Patterson objected because he had no notice that Woods would testify. At that point, the State rested its case.

Barnett was Patterson's only witness. Barnett testified that he did not have enough information to support a diagnosis of pedophilia or paraphilia, that in his clinical opinion Patterson was not a pedophile, and that Patterson's risk of offending was relatively low. The district court heard closing arguments and took the matter under advisement.

On November 14, 2011, the district court filed its memorandum decision and found beyond a reasonable doubt that Patterson was convicted of a sexually violent crime, that he suffered from a mental abnormality or personality disorder, and that the abnormality or personality disorder makes him more likely to engage in repeat acts of sexual violence. Accordingly, the district court found beyond a reasonable doubt that Patterson was a sexually violent predator under the SVPA. Patterson timely appealed the district court's decision.

Did the District Court Impermissibly Fail to Analyze All the Required Elements Before Determining that Patterson Was a Sexually Violent Predator?

Patterson argues that this court should order a new trial because the district court failed to consider all of the elements necessary to support a finding that he is a sexually violent predator. Specifically, Patterson complains that the district court did not explicitly find that Patterson's mental abnormality and personality disorder make it seriously difficult for him to control his behavior. The State responds that Patterson's failure to file a Rule 165 (2012 Kan. Ct. R. Annot. 262) motion objecting to the lack of findings precludes this court from reviewing the issue. The State also cites out-of-jurisdiction caselaw for the proposition that an explicit finding was not required. Finally, the State contends that the finding was implied in the district court's judgment.

Whether a district court misapplied the law established in prior caselaw is a question of law over which an appellate court exercises unlimited review. See Scott v. Hughes, 294 Kan. 403, 412, 275 P.3d 890 (2012) (“To the extent resolution of this case requires interpretation of our caselaw precedents, it also raises questions of law reviewable de novo. [Citations omitted.]”). Additionally, to the extent that this question involves statutory interpretation, an appellate court exercises de novo review. In re Marriage of Hall, 295 Kan. 776, 778, 286 P.3d 210 (2012).

K.S.A.2012 Supp. 59–29a02(a) defines a sexually violent predator as “any person who has been convicted of or charged with a sexually violent offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in repeat acts of sexual violence.” Prior to 2002, this statutory language set out the only elements that the State needed to prove beyond a reasonable doubt in order to have someone adjudicated a sexually violent predator. See, e.g., In re Care & Treatment of Hay, 263 Kan. 822, 836–37, 953 P.2d 666 (1998). In 2002, however, the United States Supreme Court considered the SVPA's constitutionality, focusing on the extent to which substantive due process rights require a person's mental abnormality or personality disorder to affect that person's ability to control his or her dangerousness. Kansas v. Crane, 534 U.S. 407, 409–15, 122 S.Ct. 867...

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