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In re Care and Treatment of Cone

Supreme Court of Kansas

February 22, 2019

In the Matter of the Care and Treatment of Matthew C. Cone.

         SYLLABUS BY THE COURT

         Under 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.

          Review of the judgment of the Court of Appeals in an unpublished opinion filed August 25, 2017.

          Appeal from Clay District Court; John F. Bosch, district judge.

          Sam S. Kepfield, of Hutchinson, argued the cause and was on the brief for appellant.

          Bryan C. Clark, assistant solicitor general, argued the cause, and Derek Schmidt, attorney general, was with him on the briefs for appellee.

          PER CURIAM

         Matthew 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 affirm.

         Factual and Procedural Summary

         For 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.

         Before 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.

         At 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 electrical outlet.

         Dr. 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.

         Dr. 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.

         As 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.

         The 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.

         Dr. 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.

         Nevertheless, 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.

         Cone 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.

         When 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.

         The 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.

         Cone 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.

         Admissibility of Expert Testimony on Risk Assessment Tools

         With 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 ...


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