In the Care and Treatment of KODI A. THOMAS
Review of the judgment of the Court of Appeals in an unpublished opinion filed November 8, 2013.
Appeal from Douglas District Court; SALLY D. POKORNY, judge.
BY THE COURT
1. An appellate court will not overlook the lack of an objection at trial as required by K.S.A. 60-404 when an alleged Confrontation Clause violation is raised, even if the appellant argues review is necessary to serve the ends of justice or to prevent the denial of the defendant's right to a fair trial.
2. K.S.A. 2014 Supp. 60-251(d)(2) provides that a court may consider a jury instruction error even if it was not preserved by an objection made with the district court in the manner provided by law, if the giving or failure to give the instruction is clearly erroneous and the error affects substantial rights.
3. An appellate court uses a two-step process to determine whether a challenged jury instruction is clearly erroneous. First, the court must determine whether there was any error at all by considering whether the instruction was legally and factually appropriate, employing an unlimited review of the entire record. If the court finds error, it must assess whether it is firmly convinced the jury would have reached a different verdict had the instruction error not occurred. The party claiming error has the burden to prove the degree of prejudice necessary for reversal.
Elbridge Griffy IV, of Lawrence, argued the cause and was on the brief for appellant.
Natalie Chalmers, assistant solicitor general, of Office of Kansas Attorney General, argued the cause and was on the brief for appellee.
This appeal arises after a civil jury declared Kodi A. Thomas to be a sexually violent predator under the Kansas Sexually Violent Predator Act (KSVPA), K.S.A. 59-29a01 et seq. Thomas claims the district court erred by: (1) permitting the State's experts [301 Kan. 842] to testify about hearsay statements contained
within his treatment records; and (2) improperly instructing on the State's burden of proof. We affirm because the hearsay challenge was not preserved for appellate review and the jury instruction deviation from our pattern instructions does not require reversal under our standard of review.
Factual and Procedural Background
Thomas was convicted in 1996 of attempted rape and aggravated burglary. Near the end of his prison sentence, the State sought to involuntarily commit him under the KSVPA. Thomas stipulated there was probable cause, so he was committed to Larned State Hospital for evaluation. A jury later found Thomas to be a sexually violent predator subject to civil commitment. Thomas timely appealed.
At the Court of Appeals, Thomas raised three issues: (1) sufficiency of the evidence; (2) whether the district court violated his due process right to confront witnesses under the Confrontation Clause of the Sixth Amendment to the United States Constitution when it allowed the State's expert witnesses to give opinions based on hearsay; and (3) whether the district court violated his due process rights by giving an erroneous reasonable doubt instruction. Finding no error within its standard of review, the panel unanimously affirmed. In re Care & Treatment of Thomas, 312 P.3d 398, 2013 WL 5976064, at *8 (Kan. App. 2013) (unpublished opinion).
Thomas petitioned this court for review of his second and third challenges regarding the Confrontation Clause and reasonable doubt instruction. This court granted review on these issues. Jurisdiction is proper. K.S.A. 2014 Supp. 60-2101(b) (review of Court of Appeals opinion upon ...