In re Care and Treatment of Sigler

         SYLLABUS BY THE COURT

         1.Simply pressing a point without pertinent authority, or without showing why it is sound despite a lack of supporting authority or in the face of contrary authority, is akin to failing to brief an issue. When a party fails to brief an issue, that issue is deemed waived or abandoned.

         2. Determining whether res judicata prevents relitigation of a claim requires consideration of the: (1) identity in the thing sued for, (2) identity of the cause of action, (3) identity of the persons and parties to the action, and (4) identity in the quality of the person or persons for or against whom the claim is made.

          Review of the judgment of the Court of Appeals in an unpublished opinion filed November 2, 2018. Appeal from Barton District Court; Mike Keeley, judge.

          Kristen B. Patty, of Wichita, argued the cause and was on the brief for appellant.

          Dwight R. Carswell, assistant solicitor general, argued the cause, and Derek Schmidt, attorney general, was with him on the brief for appellee.

          OPINION

          LUCKERT, J.

         This appeal results from the State's second attempt to have Robert J. Sigler found to be a sexually violent predator (SVP) and civilly committed under the Kansas Sexually Violent Predator Act (SVPA), K.S.A. 2018 Supp. 59-29a01 et seq. Sigler raises issues about res judicata and collateral estoppel and alleges prejudicial conduct calling for a mistrial. On the first issue, we hold this action is not barred by the res judicata doctrine because a material change of circumstances occurred that differentiates the second action from the first. We also reject Sigler's second argument because, although an error occurred when a witness inaccurately stated that Sigler had been "actually civilly committed once, and then his commitment was overturned by an appeals court," the State and the district court took sufficient curative steps to counter the potential prejudice. The district court, therefore, did not err by not declaring a mistrial.

         We thus affirm the district court and the Court of Appeals. See In re Sigler, No. 118, 914, 2018 WL 5728261, at *1 (Kan. App. 2018) (unpublished opinion).

         Facts and Procedural Background

         In 2007, a district court sentenced Sigler to 84 months' imprisonment following his convictions for criminal sodomy with a child 14 or more years of age but less than 16 years of age, indecent solicitation of a child, and furnishing alcohol to a minor for illicit purposes. In 2013, before Sigler's release from prison, the State petitioned for a civil commitment order under the SVPA.

         The 2015 SVPA trial

         The SVPA action went to trial, after which the district court issued a journal entry of judgment summarizing its conclusions about the four SVP elements. See K.S.A. 2018 Supp. 59-29a02(a) (defining "Sexually violent predator" to mean [1] any person convicted of or charged with a sexually violent offense; [2] the person suffers from a mental abnormality or personality disorder; [3] the mental abnormality or personality disorder "makes the person likely to engage in repeat acts of sexual violence"; and [4] the person has serious difficulty controlling his or her dangerous behavior); In re Care & Treatment of Williams, 292 Kan. 96, 106, 253 P.3d 327 (2011) ("[These] statutory requirements . . . impose four elements that must be proven to establish that an individual is a sexually violent predator.").

         The court noted the parties had not disputed the first element of proof because Sigler had a prior conviction for a sexually violent offense. See K.S.A. 2018 Supp. 59-29a02(e)(4) (defining "Sexually violent offense" to include criminal sodomy). The district court thus focused its analysis on the remaining three elements.

         As to the second element-whether Sigler suffered from mental abnormalities supporting his involuntary commitment under the SVPA-both the State and Sigler presented expert testimony. One State expert diagnosed Sigler under the DSM-5 with pedophilia, sexually attracted to males, nonexclusive type; borderline personality disorder, with antisocial features; voyeurism; alcohol dependence, without physiological dependence in a controlled environment; and amphetamine dependence, without physiological dependence in a controlled environment. Another State expert diagnosed Sigler with other specified paraphilic disorder, hebephilia, frotteurism, and voyeurism; other specified personality disorder, histrionic and borderline; methamphetamine use disorder, remission in a controlled environment; alcohol use disorder, remission in a controlled environment; and depressive disorder by history.

         Sigler's expert disagreed with these diagnoses, finding "nothing in his current functioning or in his history that would justify" the pedophilia or hebephilia diagnoses. The district court ultimately concluded the State proved Sigler suffers from a mental abnormality or personality disorder beyond a reasonable doubt.

         The district court then considered whether the State carried its burden of proving beyond a reasonable doubt that Sigler was likely to commit repeat acts of sexual violence because of a mental abnormality or personality disorder-the third element of the SVP definition. Both State experts evaluated Sigler's likelihood of recidivism using the Static-99R, an actuarial risk assessment tool. Both rated Sigler at a risk level of 4, which placed him in the moderate category for reoffending under the Static-99R's scoring criteria. Sigler's expert opined the Static-99R does not reliably assess the risk of reoffending, but if he rated Sigler, he would rate him below a 4. He also opined a score of 4 on the Static-99R is low. The district court found the State failed to meet its burden on this element. In reaching this conclusion, the district court highlighted the Static-99R test results and the State's own expert's recommendation for GPS monitoring and strict supervision even though the same expert had recommended civil commitment in other cases.

         The district court finally turned to the fourth element of whether the State proved Sigler has serious difficulty controlling his dangerous behavior. The district court reviewed both sides' experts' testimony and Sigler's testimony about his treatment and efforts to address his past sexually violent behavior. Based on this review, the district court determined the State also failed to prove this element beyond a reasonable doubt and denied the State's petition to commit Sigler.

         The district court ordered Sigler released to parole on July 13, 2015. About four months later, Sigler was arrested for parole violations and was returned to prison for a 90-day sanction.

         The 2016 petition

         Just before Sigler's release from custody, the State filed a second petition to commit Sigler. In the State's February 29, 2016, petition it alleged Sigler's parole violations constituted a material change in his condition and ability to control his behavior, which supported civil commitment even though the court had previously rejected its commitment petition after the 2015 trial.

         Sigler asked the district court to conclude a second proceeding was barred by principles of res judicata or collateral estoppel. The district court analyzed any preclusive bar under In re Care & Treatment of Sporn, 289 Kan. 681, 215 P.3d 615 (2009), and In re Care & Treatment of Johnson, 32 Kan.App.2d 525, 85 P.3d 1252 (2004). The district court noted the only new information the State provided was about Sigler's performance on parole and the reported parole violations. But the court determined this evidence was sufficient to find a material change in Sigler's condition since its 2015 determination denying the State's first commitment petition. The district court specifically cited Sigler's use of Facebook and viewing pornography within one month of being released on parole as violations of his parole conditions. The district court also noted violations arising from Sigler's possessing an Instagram account that he used to view explicit material, viewing of child pornography, and having a consensual sexual relationship with an adult male without first obtaining a required third-party notification. Based on these facts, the district court determined res judicata did not bar a second commitment proceeding.

         The district court held a jury trial in February 2017. The State called several witnesses who had contact with Sigler during his parole and two experts. Sigler testified on his own behalf and called his own expert.

         Logan Hall supervised Sigler's parole. In August 2015, Hall confronted Sigler about Sigler's Facebook profile. Hall believed this to be a parole violation. Sigler's parole conditions barred the use of chat rooms, bulletin boards, or social networking sites, including Facebook, "for the purpose of accessing sexually explicit or erotic material or contacting any person for purposes of sexual gratification." While Sigler had a Facebook page, no evidence in the record establishes he used it in a manner restricted by his parole conditions.

         Sigler, however, did violate another parole condition in September 2015 by driving a coworker, who was a minor, home after work. The next day, Sigler learned the coworker was in high school. Being alone with a minor violated Sigler's parole conditions. Sigler disclosed the violation to Hall who described this as "a fairly minor violation."

         In November 2015, Hall learned Sigler opened an Instagram account. Hall and Brandi Laudermilk, who oversaw Sigler's sex offender treatment program while he was on parole, viewed pages, profiles, or accounts Sigler had liked, friended, or followed. This review revealed images of males partially or completely nude. Sigler later admitted to viewing pornographic websites, some of which may have depicted male minors between the ages of 14 and 17. Sigler also admitted he masturbated while looking at the material. Hall had recommended Sigler's probation be revoked.

         Laudermilk addressed the reasons Sigler was discharged from his sex offender treatment program while on parole. She characterized Sigler as having trouble maintaining a low risk of reoffending while under treatment. His Instagram account, which led to the seizure of his computer, prompted the discharge from the program. But Sigler also did not disclose information relevant to his treatment, such as sexually arousing dreams involving children. She testified she had discussed the risk of viewing pornography with Sigler. She described the sex-offending cycle and methods she discussed with Sigler to stop such behaviors at thoughts before they became fantasies and later progressed into actions. Laudermilk was concerned the behavior she observed revealed Sigler was at a heightened risk of reoffending. She noted that Sigler had deactivated his Facebook account when questioned about it but reactivated it later that same night.

         Laudermilk testified she used the Acute 2007 and Stable 2007 assessments as scoring guides to determine Sigler's risk of recidivism while under supervision. The Acute 2007 test was done weekly to assess Sigler's current risk. From the time Sigler started treatment, the test showed his risk was moderate or high each time it was administered. These results were higher than Sigler's results on the Acute 2007 administered during Sigler's first incarceration.

         Forensic psychologist Derek Grimmell, Ph.D., testified as a State expert. Grimmell evaluated Sigler's file and wrote a report detailing his conclusions that the district court admitted into evidence. Grimmell explained the factors he considered in assessing Sigler's likelihood to reoffend, including: the number of times Sigler victimized others; the choice of male victims; Sigler's paraphilic disorder-his attraction to pubescent boys over a long time; and Sigler's other specified personality disorder with histrionic and borderline features.

         Grimmell testified inaccurately that

"this case is more dramatic than most because [Sigler] was actually civilly committed once, and then his commitment was overturned by an appeals court. And a lot of guys would have said, wow, that was a real shot across my bow. I better be careful on parole. But not Mr. Sigler." Sigler later testified he had never appealed an adverse civil commitment judgment.

         Grimmell also testified to another parole violation Hall had not covered in his testimony: Sigler engaged in a consensual sexual relationship with an active drug user in a manner that violated parole because he did not obtain a required third-party notification before doing so. Grimmell identified this behavior as "a substantial increase in [Sigler's] risk."

         Grimmell assessed Sigler's likelihood to reoffend under the Static-99R. Grimmell scored Sigler a plus 4, which he described as an above average risk category. Grimmell opined Sigler was a high risk to reoffend based on his review of Sigler's risk factors, the data in Sigler's file, and impediments to Sigler controlling his behavior. Grimmell cited Sigler's violations over the four-and-a-half month parole period as additional information he relied on in reaching his conclusion Sigler was likely to reoffend.

         Mitchell Flesher, Ph.D., a licensed psychologist, also assessed Sigler under the Static-99R. He scored Sigler a 4. According to Flesher, this score placed Sigler in the high risk priority. (Different experts treated the score of 4 differently, assessing the score as suggesting a risk of reoffending anywhere from low to high.)

         Sigler, besides his own testimony, offered expert testimony from clinical psychologist Bruce Nystrom, Ph.D., who opined Sigler did not meet the definition of a sexually violent predator. Nystrom did not report a Static-99R score but noted Sigler fell in the moderate-to-high risk for reoffending. Nystrom disagreed that Sigler showed any symptoms of a typical mental illness. He did, however, diagnose Sigler with histrionic personality disorder. Nystrom did not see this diagnosis as predicting any type of offensive behavior or indicating Sigler was a danger to the public.

         The court's instructions to the jury acknowledged the existence of a prior civil ...