In the Matter of the Care and Treatment of Matthew C. Cone.
BY THE COURT
the Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993),
standard for admissibility of expert testimony, as codified
in this state under K.S.A. 2017 Supp. 60-456(b), the district
court did not abuse its discretion in admitting expert
testimony on the Static-99R and Static-2002R actuarial tools,
used to estimate a sex offender's risk of reoffending.
of the judgment of the Court of Appeals in an unpublished
opinion filed August 25, 2017.
from Clay District Court; John F. Bosch, district judge.
Kepfield, of Hutchinson, argued the cause and was on the
brief for appellant.
C. Clark, assistant solicitor general, argued the cause, and
Derek Schmidt, attorney general, was with him on the briefs
Cone seeks review of the Court of Appeals' decision
affirming his involuntary commitment under the Kansas
Sexually Violent Predator Act (SVPA), K.S.A. 59-29a01 et seq.
Cone challenges the Court of Appeals' holding that the
district court did not abuse its discretion in finding that
the actuarial tools used to estimate sex offenders' risk
of reoffending met the Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125
L.Ed.2d 469 (1993), standard for admissibility of expert
testimony. Cone also contends that the evidence was
insufficient to support the jury's verdict that he met
the SVPA's definition of a sexually violent predator. We
and Procedural Summary
acts committed in 2012, Cone was convicted of aggravated
indecent solicitation of a child less than 14 years of age
and sentenced to 36 months in prison. Shortly before his
release from prison in November 2014, the State filed a
petition to involuntarily commit Cone to the Larned State
Hospital under the SVPA. To effect the commitment, the State
had to prove that Cone met the definition of a sexually
violent predator, which included establishing that he suffers
from a mental abnormality or personality defect that makes
him likely to commit repeat acts of sexual violence. The
State planned to meet that burden through the use of expert
witnesses who would rely in part on the Static-99R and
Static-2002R tests, which are actuarial tools used to
estimate sex offenders' risk of reoffending.
the SVPA jury trial, Cone sought to exclude evidence of the
results of the Static-99R and Static-2002R tests by
challenging their relevance and reliability. At the hearing
on the admissibility of the Static tests, the district court
heard testimony from all three experts who went on to testify
at Cone's trial as well as two additional experts for the
State, psychologists Dr. Derek Grimmell and Dr. Thomas
Kinlen. The district court applied the Daubert
standard, which was adopted in this state in 2014. See K.S.A.
2017 Supp. 60-456(b). Using the Daubert factors, the
district court found it was more likely than not that the
actuarial tests were scientifically reliable and admissible.
trial, the State proffered the expert testimony of two
doctors, Carol Crane and Angelina Johnson. Dr. Crane reviewed
Cone's history, reviewed a police affidavit discussing
one of Cone's victims' statements, interviewed Cone,
and used the Static-99R and Static-2002R tools to determine
Cone's risk of recidivism rate. Dr. Crane diagnosed Cone
with pedophilic disorder and opined that he met the criteria
for commitment as a sexually violent predator. Dr. Crane was
concerned that Cone's sexual interest in children had not
been sufficiently addressed; he had difficulties in relaying
what he had learned in a sexual offender treatment program,
which called into question whether he could utilize what he
had learned in treatment when he was released into the
community. The doctor also pointed to past incidents that
demonstrated Cone's poor impulse control. For instance,
when he was age 16, Cone and some friends set fire to a park
bathroom. On another occasion, Cone broke into a house that
he thought was abandoned and jammed a screwdriver into an
Johnson also concluded that Cone is a sexually violent
predator. In conducting her evaluation, Dr. Johnson relied on
her review of Cone's records, a forensic interview, and
the Static tools. Dr. Johnson also diagnosed Cone with
pedophilic disorder, but she included the additional
diagnosis of antisocial personality disorder. Dr. Johnson
said that Cone's antisocial personality disorder
contributed to his likelihood to reoffend because a key
feature of the disorder is a persistent disregard for the
rights and welfare of others and persistent recurrent
opposition to the law. Dr. Johnson testified that Cone's
antisocial personality and pedophilic disorders were "a
dangerous combination for somebody that struggles in the way
Mr. Cone does." She discussed Cone's inability to
control his behavior, pointing to Cone's description of
sexual abuse against a four-year-old victim as beginning with
Cone tickling the child and proceeding to abuse because he
was unable to resist an urge.
Johnson was also concerned that Cone did not seem to have
retained the information from the prison's sexual
offender treatment program and she believes that Cone lacks
the tools to cope with urges toward children. Further, his
relapse prevention plan was not adequate because Cone did not
understand what triggered his arousal and did not grasp the
coping skills needed to deal with such arousal.
stated above, both of the State's experts utilized the
Static-99R and Static-2002R actuarial risk assessment tools
in their evaluations. These tests are actuarial scores that
rely on objectively scored risk factors, or historical data,
that research has indicated can predict future behavior. Dr.
Crane gave Cone a score of 6 (out of 10) on the Static-99R,
while Dr. Johnson gave a score of 5. Those scores placed
Cone's risk of reoffending in the range of 13.8 to 23
percent, which fall into the moderate and high risk
categories. On the Static-2002R, both doctors arrived at a
score of 8, with a 29 to 40 percent risk of being rearrested
for a new sexual offense, placing Cone in the
moderate-to-high risk category.
defense countered with its own expert, Dr. Robert Barnett. In
preparing his evaluation, Dr. Barnett reviewed records,
conducted a forensic interview of Cone, and administered
testing. Dr. Barnett disagreed with the pedophilic disorder
and antisocial personality disorder diagnoses of the
State's experts. He related that Cone had said that he
was embarrassed and ashamed about his behavior and was
committed to not repeating it. Dr. Barnett opined Cone had a
relatively good ability to control his behavior.
Barnett testified that he does not use the Static assessments
because the idea that you can accurately predict the
percentage of probability that a person will reoffend is
invalid. He characterized the tests as a misuse of statistics
and probability because generalized group data cannot be
applied meaningfully to an individual.
Dr. Barnett testified that he had reviewed an unsigned
Static-99R test in Cone's records that reflected a risk
assessment score of 4. Dr. Barnett opined that based upon the
information that Cone had lived with a female partner for
more than two years, the score should have been 3. He then
opined that his score of 3, Dr. Johnson's score of 5, and
Dr. Crane's score of 6 were not unusual for this test
because it is given by people who are not trained and not
licensed to practice psychology.
also testified on his own behalf. He described a chaotic
childhood, which included multiple moves, family drug use,
and foster care placement. Cone related that he had been
molested by a preacher when he was six years old, although he
never told anyone about it because the preacher had warned
Cone that he would go to hell if he told.
Cone was 15, he was adjudicated for two counts of endangering
a child because he bribed his 6-year-old nephew with candy
and molested him two to three times. When Cone was 21, he was
convicted of aggravated indecent solicitation of a child less
than 14 as a result of abusing his cousin's
girlfriend's 4-year-old daughter. Cone testified that he
was asleep and dreaming about his own sexual abuse as a
child. When he awoke, the child was there and asked Cone to
scratch her stomach. Cone went further and asked the child to
pull her pants down so he could touch her.
jury found that Cone was a sexually violent predator subject
to involuntary commitment. Cone filed a motion for judgment
notwithstanding the verdict arguing, inter alia,
that the Static tests should not have been admitted and that
the evidence was insufficient to support the jury verdict.
The district court denied the motion.
timely appealed to the Court of Appeals. The panel held that
the district court did not abuse its discretion in admitting
expert testimony regarding the Static-99R and Static-2002R
actuarial risk assessment tools under the Daubert
standard. In re Care & Treatment of Cone, No.
116, 801, 2017 WL 3668891, at *3-6 (Kan. App. 2017)
(unpublished opinion). Further, the panel noted that this
case did not present the overwhelming evidence often seen in
sexually violent predator commitments, but that viewing the
evidence in a light most favorable to the State, the panel
found sufficient evidence to support the jury's verdict.
2017 WL 3668891, at *9. This court granted Cone's
petition for review.
of Expert Testimony on Risk Assessment Tools
regard to expert testimony, the issue raised and argued by
the parties throughout this case, which issue was the only
one decided by the lower courts, is whether expert testimony
on the results of the actuarial risk assessment tools-the
Static-99R test and the Static-2002R test-is admissible under
the Daubert standard, as adopted in this state by
K.S.A. 2014 Supp. 60-456(b). That statutory provision is
substantively identical to ...