In re Care And Treatment of Barnett
| Decision Date | 16 July 2021 |
| Docket Number | 103,123 |
| Court | Kansas Court of Appeals |
| Parties | In the Matter of the Care and Treatment of Valdie T. Barnett. |
NOT DESIGNATED FOR PUBLICATION
Appeal from Ellsworth District Court; Carey L. Hipp, judge.
Kristen B. Patty, of Wichita, for appellant.
Dwight R. Carswell, assistant solicitor general, and Derek Schmidt attorney general, for appellee.
Before Green, P.J., Schroeder, J., and Walker, S.J.
Valdie T. Barnett appeals the Ellsworth County District Court's judgment committing him to treatment at Larned State Hospital as a sexually violent predator. Barnett contends that the trial court erroneously shifted the burden of proof to him and, without the burden-shifting, the evidence was insufficient to support the judgment. We disagree and affirm.
As this is the third appeal in Barnett's civil commitment proceedings, the history of the case is well known to the court. See In re Care & Treatment of Barnett (Barnett I), No. 115, 298, 2016 WL 5853086 (Kan App. 2016) (unpublished opinion); In re Care & Treatment of Barnett (Barnett II), No. 117, 277, 2017 WL 5504861 (Kan. App. 2017) (unpublished opinion). An exhaustive review of the procedural history of this case is unnecessary.
Since 1996, when he was 13 years old, Barnett has bounced in and out of juvenile and adult correctional facilities for serious crimes including aggravated sexual battery, aggravated indecent liberties with a child, and aggravated battery. In 2004, The State charged Barnett in two separate complaints for committing indecent liberties with two separate victims. In Rice County District Court case 04 CR 165, Barnett ultimately pleaded guilty to an amended count of attempted indecent liberties with a child. The trial court imposed a 68-month prison sentence. In Ellsworth County District Court case 04 CR 160, Barnett ultimately pleaded guilty to an amended count of indecent solicitation of a child, and the trial court imposed a 30-month sentence, which ran consecutively to the sentence imposed in Rice County.
Just before Barnett's anticipated release from prison in 2012, Dr. Jane Kohrs, a clinical psychologist conducted a psychological evaluation of Barnett to determine Barnett's need for further treatment. In her report, Dr. Kohrs diagnosed Barnett with antisocial personality disorder. Based on the results of some actuarial tools and review of Barnett's history, Dr. Kohrs opined that Barnett's risk of sexual recidivism was significant. The State sought civil commitment of Barnett as a sexually violent predator under the Kansas Sexually Violent Predator Act, K.S.A. 59-29a01, et seq. Rebecca Farr, who held a temporary psychologist license, conducted the forensic evaluation for the State under the supervision of Dr. John Reid, a licensed psychologist. Barnett obtained an independent psychological evaluation from Dr. Robert Barnett. The trial was held in March and June 2013.
The trial court found Barnett to be a sexually violent predator and ordered his commitment to Larned State Hospital for treatment. Barnett appealed to this court, challenging the qualifications of Dr. Kohrs. This court noted that Dr. Kohrs did not conduct the forensic evaluation required by the Act and that Barnett had not challenged Farr's qualifications on appeal. Nevertheless, this court concluded that the trial court has specifically discounted Farr's testimony and reasoned that Dr. Kohrs' evaluation did not comply with the procedural requirements of K.S.A. 2015 Supp. 59-29a05(d). The court therefore reversed the commitment order and remanded the case for further proceedings. Barnett I, 2016 WL 5853086, at *3.
On remand, Barnett sought release from civil commitment as a sexually violent predator. Over the State's objection, the trial court released Barnett and dismissed the civil commitment proceedings against Barnett. The State appealed, arguing that the Kansas Court of Appeals' reversal of the commitment proceedings involved a procedural error and that the State could seek civil commitment of Barnett under proper procedures. This court reversed the trial court's dismissal, declaring the order null and void. The court remanded the case to the trial court to permit the State to have Barnett properly evaluated and to proceed with civil commitment proceedings. Barnett II, 2017 WL 5504861, at *7. When the State reinstituted civil commitment proceedings, Barnett voluntarily turned himself in. He had been released for about 17 months.
The State retained Dr. Michael Flesher to conduct the forensic psychological examination of Barnett. Like earlier evaluations, Dr. Flesher's evaluation concluded that Barnett suffered from antisocial personality disorder that made him likely to engage in repeat acts of sexual violence. Dr. Flesher concluded that Barnett exhibited the criteria for commitment as a sexually violent predator under the Act. Barnett retained Dr. Bruce Nystrom, who concluded that Barnett had dependent personality disorder and concluded that Barnett did not pose a substantial risk of sexual recidivism. At a pretrial hearing, the trial court ruled that it would not rely on the transcripts from the previous commitment hearings.
The court held a new trial in late November 2019. Along with expert testimony from Dr. Flesher and Dr. Nystrom, the court heard evidence from Barnett and his mother about Barnett's progress since committing the 2004 offenses, focusing heavily on Barnett's conduct during his 17-month release from confinement.
The trial court requested proposed findings of fact and conclusion of law from both parties. On February 7, 2020, the trial court issued its memorandum decision, finding Barnett to meet the criteria for civil commitment as a sexually violent predator and ordering his commitment to Larned State Hospital for treatment.
Barnett timely appeals the trial court's commitment order.
As defined by K.S.A. 2020 Supp. 59-29a02(a), a sexually violent predator is "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 and who has serious difficulty in controlling such person's dangerous behavior." Before civilly committing Barnett for treatment as a sexually violent predator, therefore, the State was required to prove (1) Barnett had been convicted of or charged with a sexually violent offense; (2) Barnett suffers from a mental abnormality or personality disorder (3) Barnett is likely to commit repeat acts of sexual violence because of the mental abnormality or personality disorder; and (4) Barnett has serious difficulty controlling his dangerous behavior. In re Care & Treatment of Williams, 292 Kan. 96, 106, 253 P.3d 327 (2011). The State carried the burden of establishing each of these requirements beyond a reasonable doubt. K.S.A. 2020 Supp. 59-29a07(a) (); In re Care & Treatment of Hay, 263 Kan. 822, 842, 953 P.2d 666 (1998) ().
Although Barnett challenges the trial court's conclusion that he is a sexually violent predator within the meaning of the Act, he limits his challenge to the fourth element-proof that he has difficulty controlling his dangerous behavior. He has abandoned any arguments with respect to the other elements by not briefing challenges to those elements. See Mid-Continent Specialists, Inc. v. Capital Homes, 279 Kan. 178, 191, 106 P.3d 483 (2005). In challenging the evidence supporting the fourth element, Barnett contends that the trial court's findings on this point shifted the burden to him to prove that he could control his disorder. Without this burden-shifting, Barnett contends the record contains insufficient evidence to support the trial court's conclusion that he had difficulty controlling his personality disorder.
Civil commitment constitutes a restraint on liberty that implicates due process. In re Care & Treatment of Quillen 312 Kan. 841, 850, 481 P.3d 791 (2021) (citing Foucha v. Louisiana, 504 U.S. 71, 80, 112 S.Ct. 1780, 118 L.Ed.2d 437 [1992]; Addington v. Texas, 441 U.S. 418, 425, 99 S.Ct. 1804, 60 L.Ed.2d 323 [1979]). Thus, shifting the burden of proof of one of the four requisite elements improperly relieves the State of its statutorily imposed burden of proof and undermines the statutory requirements for commitment. State v. Colbert, 26 Kan.App.2d 177, 182, 987 P.2d 1110 (1999) ().
Whether the trial court has improperly shifted the applicable burden of proof is a question of law. In re Estate of Moore, 53 Kan.App.2d 667, 681, 390 P.3d 551 (2017). An appellate court conducts plenary review over questions of law. In re G.M.A., 30 Kan.App.2d 587, 593, 43 P.3d 881 (2002) (). An appellate court also conducts unlimited review of the legal effect of the trial court's written decision. See In re Estate of Einsel, 304 Kan. 567, 579, 374 P.3d 612 (2016) ().
In setting out the legal issues for consideration, the trial court properly noted that the State had the burden to prove beyond a reasonable doubt four elements. After considering evidence presented on each...
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