In the Matter of The Care And Treatment of Darwin C. Williams., 99,235.

• Decision Date: 22 April 2011
• Docket Number: No. 99,235.,99,235.
• Citation: 253 P.3d 327,292 Kan. 96
• Parties: In the Matter of the Care and Treatment of Darwin C. WILLIAMS.
• Court: Kansas Supreme Court

292 Kan. 96

253 P.3d 327

In the Matter of the Care and Treatment of Darwin C. WILLIAMS.

No. 99,235.

Supreme Court of Kansas.

April 22, 2011.

[253 P.3d 328 , 292 Kan. 96]

Syllabus by the Court

1. When presented with an issue of whether evidence was sufficient to sustain the State's burden of proof in a sexually violent predator case, an appellate court's standard of review asks whether, after review of all the evidence, viewed in the light most favorable to the State, the appellate court is convinced a reasonable factfinder could have found the State met its burden to demonstrate beyond a reasonable doubt that an individual is a sexually violent predator.

2. In reviewing the sufficiency of the evidence, an appellate court will not reweigh the evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence.

3. To establish that an individual is a sexually violent predator under the Sexually Violent Predator Act, K.S.A. 59–29a01 et seq. , the State must prove four elements: (1) the individual has been convicted of or charged with a sexually violent offense, (2) the individual suffers from a mental abnormality or personality disorder, (3) the individual is likely to commit repeat acts of sexual violence because of a mental abnormality or personality disorder, and (4) the individual has serious difficulty controlling his or her dangerous behavior.

4. The State must prove all of the elements required under the Sexually Violent Predator Act beyond a reasonable doubt.

Catherine A. Zigtema, of Maughan & Maughan LC, of Wichita, argued the cause, and Matthew M. Dwyer and Carl F.A. Maughan, of the same firm, were on the brief for appellant.Kristafer R. Ailslieger, assistant solicitor general, argued the cause, and Nola F. Wright, assistant attorney general, and Steve Six, attorney general, were on the brief for appellee.

The opinion of the court was delivered by LUCKERT, J.:

This appeal raises the issue of whether there was sufficient evidence to support a district court's determination that an individual is a sexually violent predator pursuant to the Sexually Violent Predator Act (SVPA), K.S.A. 59–29a01 et seq. The Court of Appeals held the evidence was insufficient and reversed the district court, at least in part because the individual had scored less than 50 percent in all but one category on actuarial tests designed to predict the probability that a person with the individual's characteristics would commit a sexually violent act in the future. In re Care & Treatment of Williams, No. 99, 235, 2009 WL 2762455, at *3 (Kan.App.2009) (unpublished opinion).

Seeking a reversal of this ruling, the State argues the Court of Appeals ignored and reweighed evidence. Specifically, the State argues the Court of Appeals put undue weight on actuarial test scores, ignored the diagnosis of the State's expert that the individual suffered from antisocial personality disorder and paraphilia “Not Otherwise Specified,” and ignored the expert's opinion that the individual is a sexually violent predator. The State argues the expert's opinion and the various factors on which it was based, when viewed in the light most favorable to the State, were sufficient for us to conclude a reasonable person could find that the State proved beyond a reasonable doubt that the respondent is a sexually violent predator.

We agree and affirm the district court and reverse the Court of Appeals.

Factual and Procedural Background

The procedural history of this case is straightforward. Darwin C. Williams was convicted in 1987 of two counts of indecent liberties with a child pursuant to K.S.A. 21–3503 and was sentenced to 5 to 20 years. In May 1999, Williams was paroled, but just 6 months later his parole was revoked because of drug use. After serving more time in prison, Williams was paroled again in June 2002, but that parole was revoked approximately 6 months later in January 2003. The basis for the second parole revocation was explained during the SVPA trial when the State's expert read from a portion of a Department of Corrections' Clinical Services Report (CSR) dated September 8, 2006. The CSR indicated that Williams' parole was revoked “ ‘for having sexual contact with a minor, consuming alcohol, unsuccessful discharge from SOTP [Sex Offender Treatment Program], and admitting to viewing pornographic/sexually explicit materials.”

As Williams' prison term neared its end, the State filed a petition requesting the civil commitment of Williams as a sexually violent predator. The district court determined that probable cause existed for the allegation and sent Williams to the Larned State Security Hospital for evaluation. The district court also appointed a psychologist to perform an independent evaluation pursuant to K.S.A. 59–29a06(b). After being evaluated by two professionals, Williams appeared in district court and waived his right to a jury trial.

At the bench trial, the two experts gave conflicting opinions regarding whether a mental abnormality or personality disorder makes Williams likely to repeat acts of sexual violence. Dr. John Reid, a psychologist and supervisor at Larned State Security Hospital, testified for the State. The other expert was Dr. Robert Barnett, the clinical psychologist and board certified forensic psychologist who had been appointed by the district court. Dr. Barnett had previously worked for the Department of Corrections as chief psychologist, evaluating inmates and supervising other psychologists, and in that capacity had previously evaluated Williams. Both experts also provided written psychological evaluations of Williams.

State's Expert Opines Williams is a Sexually Violent Predator

The State's expert, Dr. Reid, testified to his experience and the assessment tools he used in evaluating Williams. He indicated he had performed 17 or 18 prior sexual predator evaluations and had concluded that 60 to 65 percent of those individuals were not sexual predators. Focusing on his evaluation of Williams, Dr. Reid explained that, among other tests, he used the Minnesota Sex Offender Screening Tool–Revised (MnSOST–R) and the Static–99 test. Both assessment tools are designed to measure the risk of sexually violent recidivism. On the MnSOST–R, Williams scored in the Level 2, moderate category for sexual recidivism with a 29 percent risk of reoffending. On the Static–99, he scored in the moderate to high risk category with a sexual recidivism risk of 33 percent within 5 years, 38 percent within 10 years, and 40 percent within 15 years. His violence recidivism was scored at 42 percent within 5 years, 48 percent within 10 years, and 52 percent within 15 years.

Dr. Reid also testified to the opinion he formed based on his evaluation of Williams. Dr. Reid concluded Williams' intellectual functioning is “borderline.” As to a diagnosis of Williams' mental condition, Dr. Reid opined that Williams suffers from alcohol dependence, substance abuse, exhibitionism, and paraphilia “Not Otherwise Specified” (paraphilia NOS). Dr. Reid explained that paraphilia NOS is a diagnosis of sexual acting out with underage individuals though they are not considered children. “One might also call it ‘with hebephilia tendencies,’ meaning adolescents.” In addition, Dr. Reid diagnosed Williams with antisocial personality disorder. In Dr. Reid's opinion, the paraphilia NOS and antisocial personality disorder predispose Williams to commit sex offenses.

Dr. Reid testified that he based his opinion, in part, on consideration of Williams' past behavior and treatment, which were reported in the Department of Corrections' records. Specifically, Dr. Reid noted that Williams reoffended in 2002, even after he had received sexual offender treatment. He opined that Williams' repeated attempts at sex offender treatment and his disciplinary reports from the Department of Corrections were problematic.

Dr. Reid also based his opinion on his interview with Williams. Specifically, Dr. Reid noted that he had asked Williams to describe his internal and external triggers for sexual arousal and interaction with underage individuals. Listing external triggers, Williams included “ ‘school yards, shopping malls, ... playgrounds, skating rinks, [and] pool halls.’ ” The internal triggers Williams listed included “¢‘rejection, idle time, bars, [and] using alcohol and drugs.’ ”

Defense's Expert Opines Williams is Not a Sexually Violent Predator

Williams presented the testimony of the other expert, Dr. Barnett, who did not classify Williams as a sexually violent predator. Dr. Barnett testified that in addition to performing a psychological evaluation on Williams, he reviewed Williams' entire history and examined Dr. Reid's written evaluation. Dr. Barnett opined that Williams has a learning disorder, as opposed to borderline intellectual function. Dr. Barnett also disagreed with Dr. Reid that Williams suffers from antisocial personality disorder. He did not see in Williams the lack of empathy and lack of conscience generally associated with this disorder. Dr. Barnett found, instead, that Williams suffers from alcohol and substance abuse, and he stressed the importance of Williams' total abstinence from those.

Dr. Barnett questioned the effectiveness of the MnSOST–R and the Static–99 in that such tests do not take into account the length of incarceration or mental health/sexual treatment received by the offender. Dr. Barnett was also critical of the MnSOST–R and the Static–99 because those tests do not include a checklist for predicting psychopathy or a penile plethysmograph to measure arousal to deviant stimuli. As for Williams' alleged exhibitionism and paraphilia NOS, Dr. Barnett indicated there was no pattern or history to establish exhibitionism and that Dr. Reid's diagnosis of paraphilia NOS was too general.

On cross-examination, however, Dr. Barnett acknowledged that he had signed a Department of Corrections evaluation report in the 1980's, which...