Hay, Matter of

• Decision Date: 30 January 1998
• Docket Number: No. 74112,74112
• Citation: 953 P.2d 666,263 Kan. 822
• Parties: In the Matter of the Care and Treatment of Kenneth M. HAY, Appellant.
• Court: Kansas Supreme Court

Page 666

953 P.2d 666

263 Kan. 822

In the Matter of the Care and Treatment of Kenneth M. HAY, Appellant.

No. 74112.

Supreme Court of Kansas.

Jan. 30, 1998.

Syllabus by the Court

1. The Sexually Violent Predator Act, K.S.A. 59-29a01 et seq., does not violate substantive due process.

2. Involuntary commitment pursuant to the Sexually Violent Predator Act, K.S.A. 59-29a01 et seq., is a civil confinement, not criminal or punitive. Therefore, the Act does not violate the prohibition against double jeopardy or ex post facto laws.

3. The constitutionality of a statute is presumed, and all doubts must be resolved in favor of its validity. Before a statute may be struck down, it must clearly appear that the statute violates the Constitution.

4. The fundamental requirement of due process is a fair trial in a fair tribunal. The essential elements of due process of law are notice and an opportunity to be heard and to defend in an orderly proceeding adapted to the nature of the case.

5. The basic requirements of procedural due process are clearly satisfied by the Sexually Violent Predator Act, K.S.A. 59-29a01 et seq., which provides for all necessary basic protections, including appointed counsel, a probable cause hearing, appointment of qualified experts for examinations, a jury trial requiring a unanimous decision, appeals, annual examinations, discharge petitions, hearings, and the strictest possible burden of proof on the State.

6. As the tests for determining the constitutionality of a statute under due process and equal protection grounds weigh almost identical factors, the United States Supreme Court's decision in Kansas v. Hendricks, 521 U.S. ----, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997), that the Sexually Violent Predator Act, K.S.A. 59-29a01 et seq., does not violate substantive due process, indicates the Act survives equal protection scrutiny as well.

7. The Sexually Violent Predator Act, K.S.A. 59-29a01 et seq., does not treat similarly situated individuals dissimilarly. All members of the class of persons who are sexually violent predators with a mental abnormality or personality disorder likely to engage in predatory acts of sexual violence are subject to identical treatment, and there exist clear distinctions between this class and other classes which are not similarly treated.

8. The legislature has broad constitutional authority to adopt statutory programs to confine and treat people who might be dangerous to themselves or others and who suffer from some mental ailment, whether a mental abnormality, a personality disorder, or a mental illness as statutorily defined. The legislature, however, is under no duty to act to the fullest extent of its authority.

9. Equal protection of the law does not require the State to choose between attacking every aspect of public danger or not attacking any part of the danger at all. The legislative authority is not bound to extend its regulations to all cases which it might possibly reach. The legislature is free to recognize degrees of harm, and it may confine its restrictions to those classes of cases where the need is deemed to be the clearest.

10. The Sexually Violent Predator Act, K.S.A. 59-29a01 et seq., does not violate equal protection principles because it is narrowly tailored to deal with a compelling State interest.

11. The Sexually Violent Predator Act, K.S.A. 59-29a01 et seq., is not overly broad or vague. The Act is comprehensive, understandable, capable of application, and sufficiently clear and definite to withstand a challenge of vagueness and overbreadth.

12. An involuntary commitment pursuant to the Sexually Violent Predator Act, K.S.A. 59-29a01 et seq., does not violate a plea agreement governing a prior conviction. Commitment under the Act is grounded solely on a mental ailment and present dangerousness. Prior convictions are not the basis for commitment under the Act and serve only to identify individuals as a member of the pool of people potentially subject to the Act. Civil commitment following the service of a sentence is collateral to a plea and independent of the criminal case.

13. There exists no basis for an argument that the Sexually Violent Predator Act, K.S.A. 59-29a01 et seq., violates the prohibition against cruel and unusual punishment where commitment proceedings under the Act have been clearly held to be civil in nature, not criminal or punitive.

14. The probable cause determination in a sexual predator case must be compared to that of a criminal trial and requires evidence sufficient to cause a person of ordinary prudence and action to conscientiously entertain a reasonable belief that the accused is a sexually violent predator.

15. Under the facts of this case, the State presented evidence at the probable cause hearing that appellant was a sexually violent predator, pursuant to K.S.A. 59-29a02(a), and appellant has failed to show that any error at the probable cause hearing prejudiced him at trial. Where an accused has gone to trial and been found to be a sexually violent predator beyond a reasonable doubt, any error at the probable cause hearing stage is harmless unless it appears that the error caused prejudice at trial.

16. In the absence of an objection at the trial court level to the failure to make findings under K.S.A. 60-252, the trial judge is presumed to have made necessary findings, and this precludes appellate review of this issue.

17. Our standard of review regarding the admission or exclusion of evidence, subject to exclusionary rules, is that of abuse of the trial court's discretion. A court may only be said to have abused its discretion when its actions are arbitrary, fanciful, or unreasonable, or when no reasonable person would adopt the view of the trial court.

18. In order to establish that an individual is a sexually violent predator, the State is required to show he or she has been convicted or charged with a sexually violent offense and suffers from a mental abnormality or personality disorder which makes him or her likely to engage in predatory acts of sexual violence. Evidence of prior sexually violent acts is clearly relevant to prove the individual suffers from a mental abnormality or personality disorder and the likelihood of engaging in predatory acts of sexual violence in the future.

19. Where evidence of the nature prohibited by K.S.A. 60-455 is independently admissible, it may properly be received. The critical issues in a sexual predator case make the evidence of prior conduct, charged or uncharged, material evidence in the case. The prohibitions of K.S.A. 60-455 are not applicable or governing in a case of this nature.

20. The existence of a plan to commit further sex crimes is highly relevant in a sexually violent predator case and is clearly admissible.

21. Under the facts of this case, the trial court, under pressure from the statutory 45-day time limitation to try this sexually violent predator case, fairly ruled upon discovery matters and did not abuse its discretion.

22. The privilege against self-incrimination does not apply to civil commitment proceedings under the Sexually Violent Predator Act, K.S.A. 59-29a01 et seq.

23. It is the duty of the trial court to properly instruct the jury upon a party's theory of the case. Errors regarding jury instructions will not demand reversal unless they result in prejudice to the appealing party. Instructions in any particular action are to be considered together and read as a whole, and where they fairly instruct the jury on the law governing the case, error in an isolated instruction may be disregarded as harmless. If the instructions are substantially correct, and the jury could not reasonably be misled by them, the instructions will be approved on appeal.

24. As the State's burden under the Sexually Violent Predator Act, K.S.A. 59-29a01 et seq., is proof beyond a reasonable doubt, our standard of review when the sufficiency of the evidence is challenged is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced a reasonable factfinder could have found the defendant to be a sexually violent predator beyond a reasonable doubt.

Nancy Orrick, Olathe, argued the cause and was on the brief, for appellant.

W. Scott Toth, Assistant District Attorney, argued the cause, and James P. Muehlberger, Assistant District Attorney, Paul J. Morrison, District Attorney, and Carla J. Stovall, Attorney General, were with him on the brief, for appellee.

LARSON, Justice:

Kenneth M. Hay appeals from a jury finding that he is a sexually violent predator and from his involuntary civil confinement pursuant to the Kansas Sexually Violent Predator Act (the Act), K.S.A. 59-29a01 et seq.

Many of the 18 issues which are raised by this appeal have been decided by the United States Supreme Court decision in Kansas v. Hendricks, 521 U.S. ----, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997), which reversed our decision in In re Care & Treatment of Hendricks, 259 Kan. 246, 912 P.2d 129 (1996). Hay also raises issues that directly relate to the facts in this case, which we first set forth in some detail.

Statement of facts

Hay has been convicted of numerous sexual offenses. In October 1984, he pled no contest to a misdemeanor battery charge after he unsuccessfully attempted to rape his former wife, then masturbated and ejaculated on her back.

In July 1988, Hay pled guilty to the offense of harassment by telephone. This charge resulted from 20 to 30 sexually obscene phone calls made to various strangers. In March 1991, Hay was convicted after a jury trial of lewd and lascivious behavior. In February 1993, Hay pled guilty to five counts of aggravated indecent solicitation of a child, and the State dismissed four counts of lewd and lascivious behavior and three counts of aggravated indecent solicitation of a child. The underlying factual basis for the 1991 and 1993 charges involved Hay...