Opinion
No. 108,868.
2013-10-25
In the Matter of the CARE AND TREATMENT OF Tyrone R. TSCHANTZ.
Appeal from Franklin District Court; Eric W. Godderz, Judge. Forrest A. Lowry, of Bezek, Lowry & Hendrix, of Ottawa, for appellant. Lee J. Davidson, assistant attorney general, for appellee.
Appeal from Franklin District Court; Eric W. Godderz, Judge.
Forrest A. Lowry, of Bezek, Lowry & Hendrix, of Ottawa, for appellant. Lee J. Davidson, assistant attorney general, for appellee.
Before LEBEN, P.J., McANANY and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM:
Following a civil jury trial in which it was determined that Tyrone R. Tschantz is a sexually violent predator under the Kansas Sexually Violent Predator Act (KSVPA), K.S.A. 59–29a01et seq., Tschantz appeals, claiming there was insufficient evidence to support the jury's verdict.
Tschantz pled guilty to aggravated indecent liberties with a child and was sentenced to prison in March 2007. While in prison Tschantz completed the 2 1/2 year Sex Offender Treatment Program (SOTP). During the course of the program, Tschantz provided a written description of his crime of conviction, which involved his 7–year–old niece, as well as his other sexual encounters over his lifetime. We have renumbered the victims from Tschantz' draft narrative to place them in chronological order. All of his victims were female.
Victim 1 was a 6–year–old friend of the family. At age 11, Tschantz touched her vagina during a sleepover at his home on one occasion.
Victim 2 was Tschantz' 8–year–old cousin. When Tschantz was 13, he touched her vagina on one occasion while playing house. Another cousin informed his aunt about this incident, and the 8–year–old cousin confessed to the aunt a few days later.
Victim 3 was Tschantz' 3–year–old cousin. At the age of 13, he touched her vagina on six occasions in connection with cleaning her up and wrestling with her while babysitting for her. The victim's sister “told” about the incident.
Victim 4 was Tschantz' sister. He was 16 years old, and she was 14 years old. He manipulated her into letting him touch her breasts on 15 occasions and wrote that he believes she thought it was a game she enjoyed.
Victim 5 was Tschantz' 12–year–old cousin. He was 18 when he manipulated her into allowing him to fondle her breasts and vagina on three occasions.
Victim 6 was Tschantz' girlfriend's 10–month–old daughter. At the age of 19, he masturbated onto her diaper and then put the diaper back on her on one occasion.
Victim 7 was his friend's 16–year–old daughter. At the age of 21, he jokingly asked her for oral sex. She agreed but asked him for oral sex first, which he said he performed on two occasions. He claimed she loved it and wanted more.
Victim 8 was his 16–year–old neighbor when Tschantz was 21. He claimed she was staying the night at his house and he unbuttoned her shirt to fondle her breasts while she was sleeping on one occasion.
Victim 9 was a 15–year–old friend of Tschantz' neighbor. At the age of 21, they began a sexual relationship. They lived together for 2 years, and he reported “700+” instances of sexual intercourse and oral sex with her throughout the relationship.
Victim 10 was the 14–year–old daughter of a friend and co-worker. At age 23, Tschantz kissed her good morning and started to fondle her. She then told him that she was already pregnant, so they could have sex. This began another long-term relationship. He and Victim 10 had “1000+” instances of sexual contact, and they had two children together.
Victim 11 was the 12–year–old daughter of a friend. Tschantz was 27 at the time. He kissed her, and when she responded, he fondled her breasts and vagina through her clothes and fondled her bare breast on two occasions. He said she liked and enjoyed it.
Victim 12 was the 4–year–old daughter of a friend of the family. Tschantz was 30 years old when he touched her bare butt and vagina while she was sleeping and he was her babysitter.
Victim 13 was Tschantz' 4–year–old daughter. At the age of 30, he masturbated on her panties while she was wearing them on one occasion.
Victim 14 was a 25–year–old woman with “mental limitations.” Tschantz, age 32, was working as a caregiver for her as well. He claimed that she liked to touch herself, so he asked if she wanted him to touch her and she said yes. He did this on three occasions and stopped when asked. He also indicated that he fondled her breasts on eight occasions.
Victim 15 was 1 year old. Tschantz did not indicate how he knew her but wrote that he was changing her diaper and performed oral sex on her on two occasions. He was 33 years old at the time.
Victim 16 was a 25–year–old woman with “mental limitations.” Tschantz, age 33, worked as a caregiver for the woman and indicated that he had fondled her breasts, digitally penetrated her, and had her perform oral sex on him on 15 occasions among other acts of sexual victimization.
Victim 17 is a 50–year–old woman with “limited mental capacity.” Tschantz, age 33, was her caregiver and claims that on 30 occasions he touched her breasts in a sexual way while helping her clean up and change for bed.
Victim 18 is not an individual victim but rather an unknown number of teens and adults that Tschantz had contact with via the internet and over the phone. He indicates that he masturbated, had phone sex, and shared pictures with these individuals on “1000+” occasions.
Victim 19 was Tschantz' 7–year–old niece. He was 37 at the time of the offense. Tschantz victimized her around 30 times, including fondling her, rubbing her bare vagina, digitally penetrating her 15 times, performing oral sex or otherwise putting his mouth on her vagina three to five times, touching her anus once or twice, and putting his mouth on her anus once. The child informed her cousin and mother of the molestation, and they informed the police. These were the crimes that led to Tschantz' current conviction.
In April 2011, prior to Tschantz' anticipated release from prison, the State commenced this civil action to have Tschantz committed as a sexually violent predator under the Kansas Sexually Violent Predator Act (KSVPA), K.S.A. 59–29a01 et seq. Tschantz submitted to a psychological evaluation at the Larned State Security Hospital before trial.
At the conclusion of Tschantz' trial, the jury found him to be a sexually violent predator. Because Tschantz claims there was insufficient evidence to support the jury verdict, we review the evidence admitted at trial in the light favoring the State, the prevailing party. In re Care & Treatment of Williams, 292 Kan. 96, 104, 253 P.3d 327 (2011). In the course of our review, we do not reweigh the evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence. 292 Kan. at 104.
Viewed in that fashion, the record of the trial discloses that Tschantz' narrative of his past sexual misconduct described above was introduced into evidence at trial. In addition, Tschantz reported that at age 12 he had been sexually abused by his adult aunt and one of her friends. When Tschantz was arrested for the sexual abuse of his niece, the police recovered computers and cell phones as well as a notebook containing pictures of children in swimsuits and two stories printed from a website called Literotica .com. One story is entitled Dad Takes Daughter and involves a father having sex with his 19–year–old daughter. The other is entitled Dad Teaches Daughter and also involves a father having sex with his teenage daughter.
In the course of Tschantz' treatment in prison, he was found to lack social judgment and impulse control. He was found to have little insight or awareness into his actions and how they affected others. Tests determined that he was aroused by images of elementary school-age girls and teenage girls and was unable to control his arousal. At the end of the SOTP program, Tschantz was given a “guarded” prognosis, indicating some risk that he would reoffend.
Dr. Bradford Sutherland, a licensed doctor of clinical psychology, evaluated Tschantz. He testified that research indicates that those who victimize nonrelatives have higher sexual recidivism rates. He noted that 2 years after treatment, Tschantz still “extensively” minimized the extent, severity, and number of his victims. According to Dr. Sutherland, Tschantz demonstrates poor judgment and has irrational thought processes that influence his decision making. Dr. Sutherland opined that the “guarded” SOTP prognosis for Tschantz' risk of reoffending was inadequate because “treatment in and of itself ... is not a significant predictor of whether an individual is going to go out and sexually reoffend or not.”
Dr. Sutherland gave Tschantz an Axis I diagnoses of pedophilia, nonexclusive type, sexually attracted to females; paraphilia, hypersexual disorder; major depressive disorder, recurrent, in full remission, controlled with medication; and posttraumatic stress disorder, in remission, controlled with medication. Dr. Sutherland further diagnosed Tschantz with a personality disorder, not otherwise specified, with features of histrionic and dependent personality on Axis II. He stated that the personality disorder is of concern when Tschantz is around children because Tschantz feels more comfortable and in control around those who are weaker than he, which could lead him to actively seek out the company of children.
Dr. Sutherland opined that Tschantz is likely to engage in repeated acts of sexual violence and that he has serious difficulty controlling his behavior. He stated that Tschantz' pedophilia will not go away, will not stay in remission, and will manifest itself at some point. Further, Tschantz' personality disorder and paraphilic behaviors would lead to impulsivity outside of a structured environment. Dr. Sutherland noted that Tschantz has a history of being highly impulsive when it comes to sexually “acting out” and opined that Tschantz would progress toward younger victims over time, making him a risk in terms of future dangerousness.
Dr. Gregg Shannon, a licensed psychologist at Larned State Hospital who conducts sexual predator evaluations, noted that Tschantz became sexualized early in life, at age 6. Dr. Shannon testified that Tschantz “engaged in the program somewhat superficially,” did not get much benefit from it, and did not develop much insight into his behaviors. Dr. Shannon characterized Tschantz as having a “life-long pattern of sexual offending.”
After conducting a relapse prevention interview with Tschantz, Dr. Shannon opined that Tschantz' strategies to avoid reoffending were insufficient because they require Tschantz to depend on others and were not self-sustaining approaches to managing the risk of reoffending. Tschantz still visualized himself being in situations with teenage girls.
Dr. Shannon noted that “Mr. Tschantz is more similar to the individuals in the groups ... of offenders that reoffended than he is similar to the others in the normative groups that did not reoffend.” Dr. Shannon gave Tschantz an Axis I diagnoses of pedophilia, sexually attracted to females, nonexclusive type; and major depressive disorder, recurrent, in partial remission. Dr. Shannon testified that he believes Tschantz is likely to engage in repeat acts of sexual violence and that he has serious issues controlling his dangerous behavior.
Dr. Robert Barnett, a Kansas licensed clinical psychologist, testified for Tschantz. Dr. Bamett stated that he does not believe Tschantz has a diagnosis that would predispose him to illegal sexually violent behavior, but Dr. Bamett admitted that Tschantz' sexual history does not contain any long periods of time where he was not acting sexually inappropriate. He said he views Tschantz as an “opportunistic sex offender.” He saw no evidence that Tschantz had a sexual preference for children. But when asked how this could be reconciled with the fact that Tschantz had admitted to having 11 victims between the ages of 10 months and 14 years old, Dr. Barnett stated that Tschantz' partners and victims came from a wide variety of ages and were not exclusively children. Dr. Bamett testified that Tschantz' case was a difficult one because there has never been a period of time since Tschantz' offending had been discovered to see whether Tschantz could control his offending behavior.
On appeal, Tschantz claims there was insufficient evidence that: (1) he is likely to continue to engage in repeated acts of sexual violence; and (2) he cannot control his dangerous behavior.
When addressing a challenge to the sufficiency of the evidence in a sexually violent predator determination under K.S.A. 59–29a01 et seq. , we must determine whether, after reviewing all the evidence in the light favoring the State, we are convinced a reasonable factfinder could have found beyond a reasonable doubt that: (1) Tschantz was convicted of a sexually violent offense; (2) he suffers from a mental abnormality or personality disorder; (3) he is likely to commit repeat acts of sexual violence because of his mental defect or personality disorder; and (4) he has serious difficulty controlling his dangerous behavior. Williams, 292 Kan. at 106.
Tschantz concedes that he was convicted of a sexually violent offense and that he suffers from a mental abnormality. Thus, the remaining factors at issue in this appeal are Williams factors (3) and (4).
The KSVPA defines the phrase “likely to engage in repeat acts of sexual violence” to mean that “the person's propensity to commit acts of sexual violence is of such a degree as to pose a menace to the health and safety of others.” K.S.A.2012 Supp. 59–29a02(c).
The State is not required to prove beyond a reasonable doubt that Tschantz will reoffend, only that it is likely. The State is also not required to use a particular method of proof, nor must the State show a certain percentage or category of risk through an actuarial assessment.
Tschantz points out that the State's experts conducted actuarial tests which placed him at a low risk of recidivism. He argues that these experts were basing their opinions that he is likely to reoffend on acts done before he completed the SOTP.
At the beginning of his prison term and again at the end of the SOTP, Tschantz was ranked at a low risk of recidivism. But SOTP director Carolyn Carlson testified that Tschantz' prognosis after the program was “guarded,” indicating there was some risk he would reoffend. Carlson and Dr. Sutherland both expressed doubt that the SOTP recidivism risk scores captured the true risk of Tschantz reoffending. Dr.Shannon noted that Tschantz is characteristically more similar to the recidivists than he is to the nonrecidivists. Dr. Sutherland testified that he felt Tschantz' risk of recidivism was underrated and that the “guarded” prognosis at the end of the SOTP was inadequate, noting that treatment is not a significant predictor of whether a person will reoffend.
Drs. Sutherland and Shannon both opined that Tschantz was likely to engage in repeat acts of sexual violence. While low scores on actuarial tests weigh against finding that the State carried its burden, other evidence can still convince a reasonable factfinder that the State met its burden, particularly when the experts base their opinions on factors beyond the tests. Williams, 292 Kan. at 111. See In re Care & Treatment of Palmer, 46 Kan.App.2d 805, 813–15, 265 P.3d 565 (2011).
Here, the State presented an array of evidence in support of its assertion that Tschantz is likely to reoffend. We do not reweigh that evidence. To prevail, the State had to show that it is likely Tschantz will reoffend, not highly likely or certain. Williams, 292 Kan. at 109. We find substantial evidence to support the proposition that Tschantz was likely to commit repeated acts of sexual violence due to his mental defect.
The fourth Williams element is Tschantz' serious difficulty controlling his dangerous behavior. To establish this element the State does not have to prove an absolute lack of control, but “[i]t is enough to say that there must be proof of serious difficulty in controlling behavior.” Kansas v. Crane, 534 U.S. 407, 412–13, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002)
Both Dr. Sutherland and Dr. Shannon opined that Tschantz has serious difficulty controlling his offending behavior. Both Dr. Sutherland and Dr. Shannon diagnosed Tschantz with pedophilia. The United States Supreme Court describes pedophilia as “a mental abnormality that critically involves what a lay person might describe as a lack of control.” 534 U.S. at 414. Dr. Sutherland testified that Tschantz' pedophilia will not go away and will not stay in remission, and opined that it would manifest at some point. Given this expert testimony, Tschantz' lifelong history of offending, his pedophilia diagnosis, and his apparent lack of an effective relapse prevention plan, we find substantial evidence to support a finding that Tschantz has serious difficulty controlling his dangerous behavior.
Affirmed.