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In re Care and Treatment of Colt

May 9, 2008

IN THE MATTER OF THE CARE AND TREATMENT OF JOHN COLT.


Appeal from Shawnee District Court; FRANK J. YEOMAN, JR., judge.

SYLLABUS BY THE COURT

1. Under the Kansas Sexually Violent Predator Act (KSVPA), K.S.A. 59-29a02(a) defines 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. The phrase "likely to engage in repeat acts of sexual violence" is defined as the person's propensity to commit acts of sexual violence is of such a degree as to pose a menace to the health and safety of others. K.S.A. 59-29a02(c).

2. When the district court has admitted evidence over a timely objection at trial, the appellate court must first consider whether the evidence is relevant. Once relevance is established, evidentiary rules governing admission and exclusion may be applied either as a matter of law or in the exercise of the district judge's discretion, depending on the contours of the rule in question.

3. Unless prohibited by statute, constitutional provision, or court decision, all relevant evidence is admissible. K.S.A. 60-407(f). Evidence is relevant if it has any tendency in reason to prove any material fact. K.S.A. 60-401(b). To establish relevance, there must be some material or logical connection between the asserted facts and the inference or result they are intended to establish.

4. In establishing the propensity of a person to commit repeated acts of sexual violence under the KSVPA, prior juvenile adjudications and convictions are not offered to infer that the alleged predator committed another crime or civil wrong on another specified occasion. K.S.A. 60-455 does not fit this situation and serves as no bar to the admission of such evidence in these cases. Therefore, in a KSVPA proceeding, evidence of the respondent's general criminal history--even if not of a sexually violent nature--is not barred by K.S.A. 60-455 because the statute is not applicable in such proceedings.

5. Where general criminal history including juvenile adjudications and convictions of a non-sexually violent nature, has been shown significant to a clinical diagnosis that supports an expert's ultimate opinion in a KSVPA case, the evidence of such criminal history is relevant.

6. Where a party stipulates to the foundation of the records on which the experts based their opinions and then agrees that the rather voluminous records need not be admitted into evidence, that party may not object to the expert opinion under State v. Gonzalez, 282 Kan. 73, Syl. ¶ 7, 145 P.3d 18 (2006).

7. When the respondent has challenged a verdict in a KSVPA case, our standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, we are convinced a reasonable factfinder could have found the defendant to be a sexually violent predator beyond a reasonable doubt. This court, however, will not weigh the evidence or pass upon the credibility of the witnesses and must review the evidence in the light most favorable to State.

8. Under the facts of this case, the respondent's own statements during his treatment program since confinement, his actuarial risk assessment scores, and the expert opinion reflecting a combined analysis of antisocial personality disorder and paraphilia, the evidence was sufficient for the jury to conclude beyond a reasonable doubt that the respondent was a sexually violent predator subject to involuntary civil commitment under the KSVPA.

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

Affirmed.

Before GREENE, P.J., ELLIOTT and PIERRON, JJ.

John Colt challenges his involuntary civil commitment under the Kansas Sexually Violent Predator Act (KSVPA), K.S.A. 59-29a01 et seq., after a jury found beyond a reasonable doubt that he was a sexually violent predator. He argues the district court erred in admitting evidence of his prior juvenile adjudications and convictions of crimes that were not sexually motivated, and he challenges the sufficiency of the evidence to support his commitment. We affirm.

Factual and Procedural Background

Pursuant to a plea agreement, Colt was convicted in 2001 of one count aggravated sexual battery and one count aggravated burglary and was sentenced to 60 months' imprisonment. Shortly before his release from prison, the State petitioned for his civil commitment pursuant to KSVPA. After a court-ordered evaluation, clinicians at Larned State Security Hospital (Larned) diagnosed Colt with paraphilia, not otherwise specified, and antisocial personality disorder and opined that he qualified as a sexually violent predator.

After numerous continuances attributable to Colt, the district court commenced a jury trial under K.S.A. 59-29a06 in September 2006. Prior to selecting a jury, the court allowed argument on Colt's motion in limine, wherein Colt sought to exclude evidence of his numerous prior juvenile adjudications and convictions for non-sexually motivated crimes. The court denied the motion, concluding: (i) K.S.A. 60-455 was inapplicable; (ii) the prior convictions were relevant to a pattern of behavior and constituted information upon which the experts relied in forming their opinions; and (iii) the probative value of such evidence outweighed its inherent prejudice. Colt was granted a continuing objection to admission of this challenged evidence.

During the State's case, Dr. Rex Rosenberg was called as the principal expert. His testimony began with an overview of the process involved in diagnosing personality disorders or mental abnormalities and in conducting an evaluation to determine whether an offender meets the criteria for confinement under the KSVPA. He then listed the information that he deemed "relevant and significant" in arriving at Colt's diagnosis, including 15 or 16 events reflected in Colt's criminal history. These events were generally described for the jury (over the renewed objection of the defense) and were ultimately listed in the district court's memorandum denying Colt's motion for new trial as including:

"1. 1991 battery and criminal damage to property

"2. 1993 theft and burglary

"3. 1993 unlawful deprivation ...


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