In re Ward

Decision Date31 March 2006
Docket NumberNo. 91,826.,91,826.
Citation131 P.3d 540
PartiesIn the Matter of the Care and Treatment of Robert A. WARD.
CourtKansas Court of Appeals

Bob L. Thomas and Megan L. Harrington, of Thomas & Associates LLC, of Olathe, for appellant.

Steven J. Obermeier, assistant district attorney, Paul J. Morrison, district attorney, W. Scott Toth, special assistant attorney general, and Phill Kline, attorney general, for appellee.

Before ELLIOTT, P.J., JOHNSON and BUSER, JJ.

BUSER, J.:

Robert A. Ward appeals the jury's verdict that he is a sexually violent predator as defined by the Kansas Sexually Violent Predator Act (KSVPA), K.S.A. 59-29a01 et seq. We reverse and remand for a new trial.

Factual and Procedural Background

On April 27, 2002, Ward was charged in Johnson County District Court with three counts of criminal threat in violation of K.S.A. 21-3419. The complaint identified three dates, February 24, 2002, March 17, 2002, and April 12, 2002, on which Ward called three young girls, M.R., L.K., and K.D., and communicated "a threat to commit violence with the intent to terrorize another, or in reckless disregard of the risk of causing terror in another...." Ward pled guilty to one count of criminal threat (a severity level 9 person felony) on August 23, 2002. In exchange for his guilty plea, the State dismissed the other two counts of criminal threat.

The district court sentenced Ward to the mid-point sentence of 6 months incarceration and, in accordance with the sentencing guidelines, placed him on presumptive probation for 12 months. At the time of sentencing, Ward had already served 166 days in custody. Among the conditions of probation, Ward was ordered to have no unsupervised contact with anyone under 18 years of age, undergo a mental health evaluation, and complete counseling.

After considering evidence presented at the sentencing hearing, the district court stated, "I think the facts show beyond a reasonable doubt that one of the purposes for which the defendant committed the crime was the defendant's sexual gratification and therefore find that this was a sexually violent crime as defined in K.S.A. 22-4902(c)(14)." As a result, the district court ordered Ward to register as a sex offender.

Ward appealed from the registration order, and this court affirmed that ruling in State v. Ward, No. 89,659, 2004 WL 324214 (Kan.App.2004), unpublished opinion filed February 20, 2004. Rejecting Ward's challenge to the sufficiency of the evidence for purposes of sex offender registration, this court found "all of Ward's comments referenced the genitalia of pre-teenaged girls and Ward's body coming in contact with these girls. There is no way to interpret these statements other than as sexually violent overtures to young girls." 2004 WL 324214, *2. Ward did not petition the Kansas Supreme Court for review of this adverse decision.

Ward voluntarily surrendered his probation only 2 days after sentencing and returned to prison to serve the 12 days remaining on his sentence. On October 21, 2002, the day before Ward was scheduled for release from prison, the State filed a petition under the KSVPA. At the December 23, 2002, probable cause hearing held pursuant to K.S.A. 59-29a05, the district court found probable cause to retain Ward in custody for further evaluation. An amended petition was filed on February 7, 2003.

Ward filed two motions to dismiss on July 11, 2003. First, Ward contended the KSVPA was unconstitutional because it defined a "sexually violent predator" as a person who is "likely" to engage in repeat acts of sexual violence. See K.S.A. 59-29a02(a). Ward contended the use of the word "likely" in that definition "creates a burden of proof that is incompatible with the standard imposed by the Supreme Court of the United States and the higher standard Kansas itself requires...." In his second motion to dismiss, Ward argued the State was without jurisdiction because it had not filed a special allegation of sexual motivation as provided by the KSVPA in K.S.A. 59-29a14(a). The district court denied both motions.

Trial commenced in July 2002, but a mistrial was declared when the jury was unable to reach a verdict. The retrial began on November 17, 2003.

Evidence at trial established that Ward had called three young girls on the telephone and, during the course of the conversations, had asked the girls vile and lascivious questions. These questions related to Ward describing deviant sex acts he could perpetrate upon the girls and the pain and injury those acts would cause to their vaginal and rectal areas. Ward told K.D. not to give the phone to her mother or hang up "because he knew where we lived, he knew our names, and he would come and hurt us...." Ward also told L.K. he knew where she lived. Testimony further revealed that shortly before Ward made these calls, he had traveled to New York for penis enlargement surgery.

The State offered into evidence items seized from Ward's home, including numerous pictures of young girls dressed in swimming or gymnastics attire. In addition to the photographs, Ward possessed materials regarding area dance and gymnastics clubs and a program from a local gymnastics competition held April 13-14, 2002. Some of the victims were listed in this program.

Ward had attended the gymnastics competition on April 13, 2002, and videotaped several of the competitors. This occurred the day after Ward called K.D. who attended that competition. A representative selection of videotapes seized from Ward's home revealed he focused the camera almost exclusively on girls' pelvic areas. K.D.'s mother testified that her daughter no longer competes in gymnastics for fear of who might be watching her.

The State offered the journal entry of judgment from Ward's criminal case into evidence. The journal entry included the question "Was the crime sexually motivated?" The box for "Yes" was checked, and the journal entry was signed by the sentencing judge, prosecutor, and Ward's counsel.

The State presented the expert testimony of Rex Rosenberg, "a licensed master's level psychologist and licensed clinical psychotherapist at State Security Hospital at Larned." Rosenberg had conducted sexual predator evaluations since 1996. At the time of trial, he had been named the sexual predator evaluation coordinator for the Larned State Security Hospital.

Rosenberg testified that Ward's conviction for criminal threat was "determined to be sexually motivated." The State also used Rosenberg's testimony to provide a detailed account of Ward's sexual history. Ward had told Rosenberg that he became curious about sex at age 5, began masturbating at age 7, and continued this practice nearly every day until he was incarcerated. Ward was 47 at the time of trial. Ward described his "gymnastics fetish" to Rosenberg, which first developed in his early teenage years when he furtively watched a gymnastics practice and clipped a photograph from a yearbook for masturbatory fantasies.

In the mid-1980's, Ward worked at a summer camp and started noticing younger teenage girls. Rosenberg recounted that Ward told him, "`Once you start looking down, where does it end?'" and "`You start with 16, then 14, and then, unfortunately, I started looking at younger ones in that way.'" Ward said he started noticing how "provocatively" 10- to 12-year-old girls were dressed in certain areas of New York, where he lived in the 1990's. Ward taught elementary school, and he told Rosenberg that when he saw some of his students, he "went `oo-la-la.'"

Ward told Rosenberg that the pictures recovered from his house were used for masturbatory purposes. Ward described how, while living in New York, he would take pictures of females on public streets when he saw "something that stunned [him] that was so beautiful...." The females ranged in age from about 11 to 40. Ward said he started using pictures out of magazines and catalogs because "the quality of the images and the quality of the models" were higher. Ward said that "eventually he would get rid of the collection that he had" because he was "disgusted with what he was doing." Ward always started a new collection, however, and he noted the collection seized by the police was his largest ever.

Ward admitted to videotaping at beaches and gymnastics meets. Ward told Rosenberg he intended to use the videotapes for masturbatory fantasies. Ward also said he had visited at least 100 gymnastics web sites and 30 ice skating web sites. Ward told Rosenberg the web sites "were being put together for the purposes of having males go into them looking for provocative pictures." Rosenberg testified Ward used pictures from the web sites "for sexual arousal and for masturbatory purposes."

Ward denied exclusive interest in children. Ward found younger females more exciting, however, because they were, in his words, "forbidden fruit." In his testimony at trial, Ward said his "whole sexual life is pretty damn dull whether it's fantasy or not." In contrast, Ward told Rosenberg that he found it "exciting to pretend that he was a bad guy" when calling the girls on the telephone. In addition to speaking with M.R., L.K., and K.D., Ward placed approximately 20 other telephone calls, although not all of them resulted in obscene language.

Rosenberg commented on a Kansas City radio station's recorded telephone calls and interview with Ward while he was in jail. Rosenberg thought the interview showed Ward's lack of insight into the impact his actions had on the victims, and how, in Ward's opinion, "he's being victimized by the DA and the judge and the prison evaluator...."

Among other mental disorders, Rosenberg diagnosed Ward with pedophilia. According to Rosenberg, this disorder made it seriously difficult for Ward to control his behavior. Rosenberg also expressed concern that Ward was beginning to express his fantasies directly, and he believed this escalation would continue. In...

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