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In re Care & Treatment of Quary

Court of Appeals of Kansas

May 9, 2014

In the Matter of the Care and Treatment of WILLIAM N. QUARY

Page 332

Appeal from Cowley District Court; NICHOLAS M. ST. PETER, judge.

SYLLABUS

BY THE COURT

1. Under K.S.A. 2013 Supp. 59-29a06(c) of the Sexually Violent Predator Act, expert witnesses testifying at a commitment proceeding may base their opinions on hearsay or other inadmissible information if that material is of the sort reasonably relied upon by professionals in their field.

2. Otherwise inadmissible information on which an expert relies in forming his or her opinion under K.S.A. 2013 Supp. 59-29a06(c) may not be admitted as substantive evidence. A factfinder cannot rely on that information--in contrast to the expert opinion itself--to support a verdict or judgment.

3. The hearsay exceptions for business records, K.S.A. 2013 Supp. 60-460(m), and official records, K.S.A. 2013 Supp. 60-460(o), are discussed and applied.

Ian T. Otte, of Herlocker, Roberts & Herlocker, L.L.C., of Winfield, for appellant.

Christopher E. Smith, county attorney, and Derek Schmidt, attorney general, for appellee.

Before HILL, P.J., ATCHESON and BRUNS, JJ.

OPINION

Page 333

Atcheson, J.:

Respondent William N. Quary appeals the judgment of the Cowley County District Court involuntarily committing him as a sexually violent predator following a bench trial. Quary argues--correctly in our view--that the district court improperly handled evidence the State offered through a pair of psychological experts. First, Quary contends the district court should not have considered otherwise inadmissible information the experts relied upon in reaching their conclusions as substantive evidence supporting the State's case. Second, he contends the expert reports themselves should not have been admitted as evidence over his objection and reviewed by the district court as the finder of fact. But the errors are harmless because ample evidence properly considered and admitted supports the judgment, including Quary's admissions and court records from his juvenile adjudications and criminal prosecutions. We, therefore, affirm.

The issues before us present comparatively narrow, interlocking evidentiary questions. We, therefore, dispense with a general narrative of the factual renditions the State and Quary presented during the trial. We discuss particular aspects of the record evidence as they bear on the points on appeal.

I. Sexually Violent Predator Act: General Precepts and Expert Testimony

Statutory Provisions

Under the Sexually Violent Predator Act, K.S.A. 59-29a01 et seq., a person may be indefinitely committed for treatment to a secured facility on the grounds of the Larned State Hospital. The State must prove the individual: (1) has been convicted of or charged with a crime designated as a sexually violent offense; (2) has a mental abnormality or personality disorder; (3) is likely to commit an act of sexual violence because of that abnormality or disorder; and (4) displays serious difficulty controlling his or her dangerous behavior. In re Care & Treatment of Williams, 292 Kan. 96, Syl. ¶ 3, 253 P.3d 327 (2011); see K.S.A. 2013 Supp. 59-29a02(a). Although a commitment action is civil rather than criminal, a respondent receives a broad range of procedural protections. The State must prove the required elements beyond a reasonable doubt. K.S.A. 2013 Supp. 59-29a07(a). The respondent has the right to legal representation, to cross-examine witnesses, and to present evidence. K.S.A. 2013 Supp. 59-29a06; In re Care & Treatment of Ontiberos, 295 Kan. 10, 25, 40-42, 287 P.3d 855 (2012) (right to counsel; reversing commitment and remanding under

Page 334

Act where counsel for respondent was ineffective in challenging State's evidence); In re Chadwick, 258 P.3d 387, 2011 WL 3795483, at *4 (Kan. App. 2011) (unpublished opinion) (acknowledging respondent in commitment proceeding under the Act must be afforded an " opportunity to challenge the State's evidence [and] present evidence of his own" ). The respondent may request a jury trial. K.S.A. 2013 Supp. 59-29a06. If adjudged a sexually violent predator, the respondent has the right to appeal that determination. K.S.A. 2013 Supp. 59-29a07(a).

The Kansas rules of evidence generally govern proceedings under the Act. See K.S.A. 60-402 (rules " apply in every proceeding, both criminal and civil, conducted by . . . a court in which evidence is produced" unless otherwise provided in a " statute applicable to the specific situation" ). Particularly pertinent here, however, the Act modifies the way expert testimony may be presented and received as evidence during commitment proceedings. K.S.A. 2013 Supp. 59-29a06(c). By its express terms, K.S.A. 2013 Supp. 59-29a06(c) rejects K.S.A. 60-456(b), the evidence rule governing expert testimony, to expand the sources of information experts may use in forming their opinions. In material part, K.S.A. 2013 Supp. 59-29a06(c) states:

" The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If the facts or data are of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, such facts and data need not be ...

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