In the Matter of the Care and Treatment of Robert J. Sigler.
BY THE COURT
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.
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.
of the judgment of the Court of Appeals in an unpublished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.
R. Carswell, assistant solicitor general, argued the cause,
and Derek Schmidt, attorney general, was with him on the
brief for appellee.
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.
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 App. 2018) (unpublished opinion).
and Procedural Background
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.
2015 SVPA trial
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  any person convicted of or charged
with a sexually violent offense;  the person suffers from
a mental abnormality or personality disorder;  the mental
abnormality or personality disorder "makes the person
likely to engage in repeat acts of sexual violence"; and
 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.").
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.
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.
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.
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
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.
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.
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.
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
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.
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.
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."
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.
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.
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.
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.
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
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
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.
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.)
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.
court's instructions to the jury acknowledged the
existence of a prior civil ...