Opinion
No. 108,563.
2013-11-8
In the Care and Treatment of Kodi A. THOMAS.
Appeal from Douglas District Court; Sally D. Pokorny, judge. Elbridge Griffy IV, of Lawrence, for appellant. Natalie Chalmers, assistant solicitor general, for appellee.
Appeal from Douglas District Court; Sally D. Pokorny, judge.
Elbridge Griffy IV, of Lawrence, for appellant. Natalie Chalmers, assistant solicitor general, for appellee.
Before ARNOLD–BURGER, P.J., BUSER and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
Kodi A. Thomas appeals his civil commitment pursuant to the Kansas Sexually Violent Predator Act (KSVPA), K.S.A. 59–29a01, et seq. Thomas contends the trial evidence was insufficient, he was denied his right to confront witnesses, and the trial court erred by giving a jury instruction which misstated the State's burden of proof. Having reviewed the record and considered the briefs, we affirm the jury's verdict.
Factual and Procedural Background
At the jury trial, the State presented the testimony of two psychologists, Jane Kohrs, Ph.D., and Greg Shannon, Ph.D., in addition to their written reports. Thomas stipulated to 1996 convictions for attempted rape and aggravated burglary. Thomas presented no other evidence.
The State's evidence showed that in 1981, when Thomas was about 12 years old, he participated in a gang rape of two girls. Dr. Kohrs testified this event “could have ... played a part in him having this sexual arousal to a nonconsenting person and not having empathy for a victim and not realizing the intimacy or love involved in a sexual relationship, because he doesn't show any remorse or knowledge.”
Dr. Kohrs gave as an example Thomas' reaction when the victim of his 1996 crimes ordered him from her residence. Thomas “found that [he became sexually aroused] as she was saying this, and then he said that she stared and licked her lips and that he thought ‘she acted like she wanted it.’ “ According to police reports, Thomas removed the woman's panties and penetrated her vagina twice with his finger before running away. Thomas kept the woman's panties and attempted to hide them at the police station, later returning to the location in an apparent effort to retrieve them. Dr. Kohrs said Thomas expressed no remorse about his crimes but had “kind of a smile when he recall[ed] the details.”
There were other incidents of lewd behavior. In 1987, Thomas fondled a young boy while in juvenile placement. In 1995, he was caught peeking into the window of a second story apartment. At the time, Thomas was carrying a backpack which contained numerous pairs of women's undergarments.
Once Thomas was incarcerated, he repeatedly exposed himself to female staff, engaged in prolonged staring at them, and masturbated where he could be seen. Thomas spent time in the Larned State Hospital (LSH), while still in the custody of the Department of Corrections, and the other psychologist to testify, Dr. Shannon, described one incident there:
“[H]e was in the day hall ... area of the living unit, and he observed a young woman going from room-to-room making checks, that is visual contact with each person ..., but Thomas observed the woman going down the hallways, and there are probably four hallways on that living unit where he was, and as she went from room to room ... he watched her. As she did the next hallway, he knew where she was and he knew that she was going to his hallway next, and he went immediately back to his room so that he didn't have clothes on when she got to his room and looked in his room. This was very concerning for the staff. It indicates ... an almost predatory behavior, if you will.”
Dr. Shannon emphasized that while Thomas did not engage in “hands-on kinds of behaviors” while in custody, his other behaviors continued even under the strictest supervision. For example, Thomas' behaviors also continued in the Douglas County jail while awaiting trial. Dr. Shannon testified this was “another indication that he is unwilling or unable to manage his sexual behavior.”
Dr. Kohrs administered the Static–99 actuarial risk assessment to Thomas and determined that he tested in the “High risk category.” Dr. Shannon administered the Minnesota Sex Offender Screening Tool—Revised Edition, the Static–99R, and the Static–2002R actuarial risk assessments to Thomas and determined that he was in the “High Risk Level,” the “High Risk category,” and the “Moderate–High Risk category” respectively.
Dr. Kohrs and Dr. Shannon diagnosed Thomas with paranoid schizophrenia, antisocial personality disorder, mild mental retardation or borderline intellectual functioning, paraphilia not otherwise specified, voyeurism, and/or exhibitionism. Both doctors also diagnosed some form of substance abuse. Dr. Shannon testified that the substance abuse diagnosis was significant because such substances “disinhibit behavioral controls” and reduce the likelihood a person with mental illness will take their prescribed psychiatric medications once released in the community. Both doctors said Thomas seemed unaware that he suffers from mental illness even while taking antipsychotic medication and that Thomas had not shown an interest in taking his medication or participating in therapy. Both doctors also opined that Thomas was likely to engage in sexually violent acts if released.
At the conclusion of trial, the jury found Thomas was a sexually violent predator. Thomas filed a timely appeal.
Sufficiency of the Evidence
Thomas contends the trial evidence was insufficient to prove he “was likely to engage in repeated acts of sexual violence or that his disorders make it seriously [difficult] for him to control his behavior.” The State counters that Thomas is impermissibly asking us to reweigh the evidence.
“When presented with an issue of whether evidence was sufficient to sustain the State's burden of proof in a sexually violent predator case, an appellate court's standard of review asks whether, after review of all the evidence, viewed in the light most favorable to the State, the appellate court is convinced a reasonable factfinder could have found the State met its burden to demonstrate beyond a reasonable doubt that an individual is a sexually violent predator.”
“In reviewing the sufficiency of the evidence, an appellate court will not reweigh the evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence.” In re Care & Treatment of Williams, 292 Kan. 96, Syl. ¶¶ 1–2, 253 P.3d 327 (2011).
The crux of Thomas' argument is that while the State may have proven his mental abnormalities, personality disorders, and intellectual limitations, it did not show a link to his dangerous sexual behaviors.
We have carefully reviewed the record. Viewing the evidence in the light most favorable to the State, Dr. Kohrs and Dr. Shannon both related Thomas' mental health to his harmful sexual behavior. Additionally, as the State points out, the doctors diagnosed paraphilia, voyeurism, and/or exhibitionism, all Axis I mental abnormalities which directly related to Thomas' sexual behavior. In Dr. Kohrs' opinion, Thomas suffered from “a really malignant combination of mental abnormalities, which is schizophrenia, paranoid type, paraphilia or sexual disorder, a personality disorder with antisocial characteristics, and all of that is aggravated by the mild mental retardation.”
We believe the other arguments raised by Thomas are all impermissible invitations to reweigh the evidence which are beyond our appellate standard of review. Based upon our review of the evidence and the elements of the State's burden of proof in this case, we are convinced a reasonable factfinder could have found Thomas was a sexually violent predator.
Violation of the Right to Confront Witnesses
Thomas contends he was denied his constitutional right to confront Larned nurses who prepared nursing notes relied on by Dr. Shannon during his trial testimony. In support, Thomas cites Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), which applied the Confrontation Clause of the Sixth Amendment to the United States Constitution. Our court has unlimited review over Confrontation Clause issues. See State v. Jones, 295 Kan. 1050, 1054, 288 P.3d 140 (2012).
Before reaching the Confrontation Clause issue, however, we must consider whether Thomas preserved this issue for appellate review. Kansas law provides that “[a] verdict ... shall not be set aside ... by reason of the erroneous admission of evidence unless there appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of objection.” K.S.A. 60–404. This rule applies to challenges based on federal constitutional grounds. State v. King, 288 Kan. 333, Syl. ¶ 4, 204 P.3d 585 (2009).
Thomas' counsel, Elbridge Griffy IV, objected during the direct examination of Dr. Shannon by the State's attorney, Charles Branson. The relevant colloquy:
“Q. Were you aware of any exhibitionism or anything while [Thomas] was in the [LSH]?
“A. Yes.
“Q. In fact, in your report, you indicate in separate notations some events?
“A. Yes, in my report, I quoted several—half a dozen perhaps, some nursing notes that I reviewed. The nursing notes regarding these incidents, I looked at, regarding these incidents of exhibitionism.
“Q. I would like to take you through this briefly so I understand what you reviewed. Tell us, what is the first treatment note that you reviewed with regard to Mr. Thomas?
“MR. GRIFFY: I will object again on this [confrontation] issue. The individual that made this record, the statements, they are not available and we can't cross-examine them, and we can't really check the veracity. It's a [confrontation] violation and its hearsay.
“THE COURT: Mr. Branson?
“MR. BRANSON: Your Honor, I believe the law is clear, and [K.S.A.] 59–29a06(c) now provides that this information is no longer hearsay if it's information that a doctor uses to rely on in making his evaluation and treatment. 1 am not asking about the truth or veracity of those individual statements, but asking about the information he received that he later used to rely on to make his determination.
“MR. GRIFFY: I guess my argument there would be whether there has been appropriate foundation that the opinion that this doctor relied on is reasonably relied on and regularly relied on in the field specifically.
“THE COURT: Well, Mr. Branson, if you can try and flesh out that foundation before you proceed?
“MR. BRANSON: Okay.”
Branson asked Dr. Shannon to explain the nursing notes, including their origin, how they were preserved, and whether “this is the type of information that you, as a psychologist, look at and review and helps you make your determination ultimately?” Dr. Shannon then testified about the notes and stated that he “[r]outinely” relied upon such information. Griffy did not state any objection as Dr. Shannon then read from the nursing notes quoted in his report. Moreover, Griffy did not object when the State later moved for admission of the doctor's expert report which contained the nursing notes.
We acknowledge that Thomas initially raised a confrontation and hearsay objection. The State's attorney responded to this objection, however, by arguing that the evidence was no longer hearsay. See K.S.A.2012 Supp. 59–29a06(c). In response, Griffy modified his objection, now questioning whether the State had shown Dr. Shannon had relied on “facts or data ... reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.” See K.S.A.2012 Supp. 59–29a06(c). In response, the trial court permitted the State to ask additional questions in its effort to establish the necessary evidentiary foundation that Griffy argued was insufficient.
On this record, we do not believe that Thomas has preserved a constitutional Confrontation Clause issue for appellate review.
First, the trial court never ruled on Griffy's initial objection that the nursing notes were subject to the Confrontation Clause or made factual findings regarding whether the notes were testimonial in nature. This lack of findings is significant. See Jones, 295 Kan. at 1057 (stating that without such findings “we are handcuffed” as an appellate court). Moreover, Thomas did not object to the lack of factual findings regarding the Confrontation Clause issue. It is not our role to determine the relevant facts necessary to arrive at a conclusion of law. On the contrary, “[a]ppellate courts do not make factual findings but review those made by district courts.” State v. Thomas, 288 Kan. 157, 161, 199 P.3d 1265 (2009). The burden is on the party making a claim to designate facts in the record to support that claim; without such a record, the claim of error fails. See Friedman v. Kansas State Bd. of Healing Arts, 296 Kan. 636, 644–45, 294 P.3d 287 (2013).
Second, after Griffy modified his objection and the State provided testimony in response to the objection by establishing additional foundation under K.S.A.2012 Supp. 59–29a06(c), Griffy never renewed his objection based upon the Confrontation Clause or raised any objection when Dr. Shannon subsequently read portions of the nursing notes memorialized in his report into evidence. And, separate from Dr. Shannon's trial testimony, Griffy also did not object to the admission of Dr. Shannon's expert report which referred to the nursing notes.
“K.S.A. 60–404 requires a timely and specific objection to the admission of evidence at trial in order to preserve issues arising from that admission for appellate review.” King, 288 Kan. 333, Syl. ¶ 2. No such timely and specific objection was made to the allegedly inadmissible evidence when it was offered at trial. Accordingly, this issue was not preserved for appeal.
Finally, we note that on appeal Thomas does not challenge Dr. Kohrs' similar trial testimony, thereby waiving or abandoning the same admissibility issue as it relates to Dr. Kohrs. See State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011).
Jury Instruction No. 4
Thomas contends that Jury Instruction No. 4 was improper because it failed to convey the State's obligation to prove that he was a sexually violent predator beyond a reasonable doubt, in violation of K.S.A.2012 Supp. 59–29a07, and the Due Process Clause. The State responds that Thomas has not shown the clear error necessary to require a reversal of the verdict.
“Under K.S.A. 22–3414(3), no party may assign as error on appeal a district court's giving or failure to give a particular jury instruction, unless: (a) that party objected before the jury retired to consider its verdict, stating distinctly the matter to which the party objected and the grounds for the objection; or (b) the instruction or failure to give the instruction is clearly erroneous. If an instruction is clearly erroneous, appellate review is not predicated upon an objection in the district court.”
“The determination of whether an instruction is clearly erroneous employs a two-step process: (1) The reviewing court, employing an unlimited review, determines whether the subject instruction was legally and factually appropriate; and (2) if error is found, the court must assess whether it is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred. The party claiming a clearly erroneous instruction maintains the burden to establish the degree of prejudice necessary for reversal.” State v. Cummings, 297 Kan. 716, Syl. ¶¶ 1–2, 305 P.3d 556 (2013).
The KSVPA standard of proof is statutory: “The court or jury shall determine whether, beyond a reasonable doubt, the person is a sexually violent predator.” K.S.A.2012 Supp. 59–29a07(a). This statute is cited in PIK Civ. 4th 130.22 and PIK Crim.3d 57.42 as authority for the burden of proof instruction to be given in sexually violent predator proceedings:
“The State has the burden to prove its claim in this proceeding. The test you must use is this: If you have a reasonable doubt as to the truth of any of the claims made by the State, you must find for the respondent. If you have no reasonable doubt as to the truth of any of the claims made by the State, you should find for the State.”
The State, however, submitted a proposed instruction which modified the language of PIK Civ. 4th 130.22 and PIK Crim.3d 57.42 so it would parallel the language of PIK Crim.3d 52.02, the comparable instruction used in criminal trials. The PIK Crim.3d 52 .02 criminal instruction substitutes the phrase “required to be proved” for the word “made” in both of the two sentences after the colon. See PIK Civ. 4th 130.22: PIK Crim.3d 57.42; PIK Crim.3d 52.02. In the process of drafting the proposed instruction, however, the State omitted the words “any of” from the first sentence after the colon, and the trial court apparently copied the State's proposed instruction verbatim as Jury Instruction No. 4:
“The State has the burden to prove its claim in this proceeding. The test you must use is this: If you have a reasonable doubt as to the truth of the claims required to be proved by the State, you must find for the Respondent. If you have no reasonable doubt as to the truth of any of the claims required to be proved by the State, you should then find for the State.” (Emphasis added.)
Although Thomas' counsel did not object below to the propriety of this instruction, he now objects to it, arguing that it misstated the State's burden of proof.
First, Thomas complains that the first sentence after the colon instructed that “before the jury could ‘acquit’ the respondent, it had to have a reasonable doubt as to the truth ‘of the claims' to be proved by the [S]tate. By using the phrase ‘of the claims,’ the instruction required a reasonable doubt of all the claims.” With regard to the second sentence, Thomas argues that it permitted the jury “to involuntarily commit the respondent if it had no reasonable doubt as to the truth of ‘any of the claims' required to be proved by the [S]tate.”
Recently, our Supreme Court ruled on a somewhat similar burden of proof instruction in a criminal case. In State v. Herbel, 296 Kan. 1101, 1120, 299 P.3d 292 (2013), the jury was instructed in relevant part:
“The State has the burden to prove the defendant is guilty....
“The test you must use in determining whether the defendant is guilty or not guilty is this: If you have a reasonable doubt as to the truth of any of the claims required to be proved by the State, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of any of the claims required to be proved by the State, you should find the defendant guilty.' “ (Emphasis added.)
Our Supreme Court held that while the use of the word “any” in both sentences after the colon was “not the preferred instruction, it was legally appropriate.” 296 Kan. at 1124. The preferred instruction should have used “any” in the first sentence and “each” in the second sentence. 296 Kan. at 1120, 1124. Importantly, our Supreme Court found the potential confusion of “any” in both sentences was eliminated by another instruction—the elements instruction—which required the State to prove “each” of the claims. See 296 Kan. at 1123–24.
Herbel was decided after Thomas filed his brief in this appeal. The State, however, had the benefit of this precedent and asserts that Thomas' argument with regard to the use of the word “any” in the second sentence “was squarely rejected” by our Supreme Court in Herbel. The State also notes that “[l]ike in Herbel, the jury in this case was instructed that [it] must find each element to establish the charge.” (Emphasis added.) Reading the second sentence in isolation, we are persuaded that the use of the word “any” while not favored, was not error.
With regard to the first sentence, we question the significance of the difference between the phrase “truth of the claims” rather than “truth of any of the claims.” Herbel did not address this particular language, although once again, assuming the jury was confused with regard to the State's burden of proof from the language of Jury Instruction No. 4, the elements instruction should have clarified any confusion by instructing the jury that the State was required to prove “each” element.
Still, we see little reason to parse this hybrid instruction. Its language was not clearly stated and we are unable to rule out that, read alone, it may have caused some jury confusion. Assuming without deciding that this instruction was given in error, Cummings directs us to next decide whether we are firmly convinced the jury would have reached a different verdict had the instructional error not occurred. Of note, Thomas argues the error was structural. The State disagrees.
“Structural error only occurs in very limited circumstances where errors defy analysis by harmless-error standards because they affect the framework within which the trial proceeds.” Boldridge v. State, 289 Kan. 618, Syl. ¶ 7, 215 P.3d 585 (2009). We do not believe this is such a case. Given that Cummings, 297 Kan. 716, Syl. ¶ 2, repeats the “firmly convinced” standard applied on the clearly erroneous review since State v. Williams, 295 Kan. 506, Syl. ¶ 5, 286 P.3d 195 (2012), we will apply the harmless-error standard here.
We are not firmly convinced the jury would have reached a different verdict had an instructional error not occurred. The arguments of counsel clarified the jury's task and the evidence was overwhelming. The jury was instructed on the elements as follows:
“The State alleges the respondent is a sexually violent predator. The respondent denies the allegation.
“To establish this charge, each of the following claims must be proved:
“1. That the respondent has been convicted of attempted rape, a sexually violent offense;
“2. That the respondent suffers from a mental abnormality or personality disorder which makes the respondent likely to engage in repeat acts of sexual violence; and
“3. That the respondent's mental abnormality or personality disorder makes it seriously difficult for him to control his dangerous behavior.” (Emphasis added.)
In closing arguments, Branson described for the jury “what the State has to prove to you today.” First, Branson said, “The State has to prove that Mr. Thomas has been convicted of a sexually violent offense.” Branson simply noted the stipulation to this effect and then said, “Further, the State has to prove to you that he suffers from a mental abnormality or personality disorder.” Branson argued this fact was not controverted and that Griffy had actually conceded this element during questioning. After these preliminaries, Branson said, “[S]o let's talk about why we are here .” He said it was “to determine the last two parts of that. Is he likely to re-offend and does he have a serious difficulty controlling himself.” These arguments took up the rest of the Branson's closing argument. As is abundantly clear, the State properly recognized its three-part burden of proof and accurately conveyed it to the jury.
Griffy similarly told the jury, “What the State needs to do is prove to you beyond a reasonable doubt that [it] met the three elements of this offense.” In line with Branson's argument, Griffy essentially conceded the first element: “We never made any representation that Mr. Thomas didn't have some very serious convictions in his background, and it became obvious during the opening comments of the State that that was, in fact, true.” Consonant with Branson's argument, Griffy also conceded the first part of the second element: “I will agree that Mr. Thomas' behavior indicates he has a lot of problems conforming to norms, obeying rules, he is mildly mentally retarded, is on psychotropic medicines that would drop a horse, and is schizophrenic.” Griffy then turned to the remaining elements of proof, telling the jury, “[T]here wasn't any evidence put before you today that Mr. Thomas ... has any type of predatory sexual behavior.”
Under the totality of these circumstances, we find no clear error. Any ambiguity in the reasonable doubt instruction was mitigated by the clarity of the elements instruction. Counsel for both parties diligently and appropriately argued the State's burden of proof, and they focused their argument on whether the State had proven the three separate elements comprising the claim that Thomas was a violent sexual predator.
All things considered, including the substantial amount of evidence produced by the State relevant to all three elements of proof, we are not firmly convinced the jury would have reached a different verdict had an instructional error not occurred. See Cummings, 297 Kan. 716, Syl. ¶ 2.
Affirmed.