Opinion
No. 110,364.
2014-12-5
In the Matter of Gerald NORRIS.
Appeal from Wyandotte District Court; Kathleen M. Lynch, Judge.Michael C. Duma, of Duma Law Offices, LLC, of Olathe, for appellant.Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Appeal from Wyandotte District Court; Kathleen M. Lynch, Judge.
Michael C. Duma, of Duma Law Offices, LLC, of Olathe, for appellant. Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., STEGALL, J., and JOHNSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Gerald Norris was committed to Larned State Hospital (“Larned”) in 2007 for treatment as a sexually violent predator pursuant to K.S .A. 59–29a01 et seq. In 2012, Norris petitioned the district court to grant him conditional release status. The district court held a bench trial and ruled that the State had carried its burden to prove beyond a reasonable doubt that Norris continued to suffer from a mental abnormality or personality disorder and that public safety would be jeopardized if Norris were granted conditional release because he was likely to reoffend. Norris now appeals, arguing: (1) The district court's ruling was not supported by sufficient evidence; (2) the district court erroneously concluded that Norris was not eligible, as a matter of law, for conditional release; and (3) the district court erred in excluding testimony regarding Norris' housing options upon conditional release. Because we find no reversible error, we affirm.
Factual Background
Norris is a patient in the Sexual Predator Treatment Program (“SPTP”) at Larned—a seven-phase program. The first phase involves orientation and adjustment to confinement at Larned and usually lasts between 6 and 9 months. The second phase is referred to as the “core phase” and includes the program's primary educational components. Phase three is referred to as the “application phase.” It requires a polygraph test to evaluate the patient's truthful participation in the program. In phase four the patient creates and refines a relapse prevention plan and goes before a review panel to measure the patient's progress. Phase five begins a gradual process of supervised visits or outings during which the patient is slowly reintroduced to the community. The latter phases of the program consist of allowing the patient to become “more independent” by living quasi-independently, “obtaining a job, attending outpatient therapy, and gaining conditional release for a minimum of 5 years.” Johnson v. State, 289 Kan. 642, 647, 215 P.3d 575 (2009).
At the time of trial, Norris was in the early portion of phase three of the SPTP. Dr. Bonnie Thacker had been Norris' primary therapist. Dr. Thacker authored the 2012 annual report on Norris. In doing so, she reviewed Norris' past medical records, his previous annual reports, his sexual predator evaluation, and conducted an interview with Norris. At trial, Dr. Thacker noted that Norris used a wheelchair, but Dr. Thacker was uncertain as to the extent he was bound to the chair. She also testified that Norris wears a neck brace but that he did not wear the neck brace on a day-to-day basis. Dr. Thacker noted that she was not licensed as a medical doctor and could not “talk about the implications of his medical diagnosis.” Dr. Thacker was able to testify, however, that Norris had no cognitive or physical problems that prevented him from participating in the program. Dr. Thacker testified that Norris was originally diagnosed with “pedophilia” and with a personality disorder “with antisocial and narcissistic features.” Further, she testified that, in her opinion, Norris still suffered from that condition. Based upon those diagnoses, Dr. Thacker believed Norris still suffered from a mental abnormality and she could not recommend he be placed on conditional release.
Dr. Okechukwu Nwachukwu–Udaka was Norris' primary therapist at the time of trial. He testified that Norris had completed “nothing” in phase three of the SPTP. Dr. Nwachukwu–Udaka noted that Norris had failed to perform any of the requirements of phase three. Importantly, according to Dr. Nwachukwu–Udaka, Norris had not participated in identifying the risk factors of his condition or in creating a relapse prevention plan. Without such a plan in place, Dr. Nwachukwu–Udaka testified that Norris is more likely to reoffend. Dr. Nwachukwu–Udaku further testified that Norris exhibited “grandiosity and [an] inability to interact, empathize with other people and ... inflexibility towards ... what he wants, when he wants it, ... without giving consideration to other people.” Dr. Nwachukwu–Udaka said these characteristics are “very related to offending behavior.” Finally, it was Dr. Nwachukwu–Udaku's opinion that given Norris' current lack of progress through the SPTP, his “likelihood of reoffending is really high.”
Dr. Stanley Mintz, a clinical psychologist, testified on Norris' behalf. Dr. Mintz testified that his testing of Norris “did not indicate that [Norris] is suffering from a severe mental disease per se.” Dr. Mintz did note symptoms of depression in Norris, but he did not find psychoses, hallucinations, or delusions. Dr. Mintz noted symptoms of somatization, which means a focus on medical issues and medical complaints, which he would expect from someone with Norris' medical history. Dr. Mintz stated, however, “I'm not a medical physician. So I'm not going to dwell on the medical aspects.” In Dr. Mintz' opinion, Norris “does not appear ... to me as a violent sexual predator at this time based on his infirmities and medical condition as I can interpret as a psychologist and not as a physician.” Dr. Mintz believed Norris would use “whatever psychological energy he has just to survive rather than ... going out and doing further sexual crimes.” Dr. Mintz said, “[H]e is a bright and capable individual intellectually, so I feel he knows much more than he has shown in terms of going through the formal levels [of the SPTP].” Dr. Mintz acknowledged, “I'm not able to make any cogent statement about his physical sex drive compared to his medical conditions.” He did opine, that, if an individual suffered from chronic pain and worry about health problems, “sex drive is down at the bottom of that individual's concerns.” Dr. Mintz testified that the likelihood of Norris reoffending was “very low” based upon his age, medical condition, and “overall personality demeanor.”
Norris testified on his own behalf, primarily describing his various medical ailments. At the time of the hearing, Norris was 68 and had been using a wheelchair since 2005. Norris stated that he can get out of the wheelchair, but cannot walk without support. Norris testified he now uses the chair all the time. Norris testified that he wears a neck brace due to a spinal injury as well as nylon wrist supports. Norris testified that the last time he had sexual desires was shortly before his arrest in August 1992. He said that the last time he was able to obtain an erection was in the late 1980's or early 1990's. He stated that he does not feel like offending at this point and that he was not likely to reoffend.
The district court issued a memorandum decision finding, “[T]he State has met its burden of proof that Norris' mental abnormality and personality disorder remains such that the person is not safe to be at large and if placed on conditional release is likely to engage in repeat acts of sexual violence.” Norris brings this timely appeal from that order.
Analysis
Sufficiency of the Evidence
Norris begins by challenging the sufficiency of the evidence to support the district court's findings. Specifically, Norris argues the evidence was insufficient because (a) the district court relied on inadmissible evidence of prior crimes, (b) the district court relied on inadmissible hearsay evidence, and (c) the district court improperly weighed conflicting expert testimony regarding Norris' medical condition and psychological tests.
To the extent Norris' challenge is actually to the sufficiency of the evidence, we must ask whether we are convinced that, when viewed in the light most favorable to the State, the evidence would permit a reasonable factfinder to conclude that the State had met its burden. In re Care & Treatment of Colt, 289 Kan. 234, 243–44, 211 P.3d 797 (2009). An appellate court should not reweigh evidence or pass on the credibility of witnesses when reviewing sufficiency of the evidence. In re adoption of J.M.D., 293 Kan. 153, 171, 260 P.3d 1196 (2011). To the extent Norris is actually challenging an evidentiary decision made by the lower court, we generally review such rulings for an abuse of discretion. See State v. Summers, 293 Kan. 819, 827, 272 P.3d 1 (2012). When such evidentiary questions require interpretation of a statute, our review is de novo. See Schlaikjer v. Kaplan, 296 Kan. 456, 463–64, 293 P.3d 155 (2013). With these principles in mind, we will address each of Norris' individual objections to the evidence.
1. Prior Crimes
During Dr. Thacker's testimony, Norris objected to the admission of a 2012 medical report that was part of Dr. Thacker's evaluation of Norris. Norris specifically objected “to any opinion related to those two cases that there's absolutely no evidence of.” The “two cases” were prior alleged sex crimes involving Norris in which the charges had been dismissed. The district court sustained the objection and redacted the lines in the report referencing those alleged crimes. When asked about the dismissed charges on cross-examination, Dr. Thacker testified that she did not consider those charges in evaluating him.
Norris now argues that other documents Dr. Thacker testified she relied on also referenced the dismissed crimes. Dr. Thacker testified she used many documents in evaluating Norris, including his past medical records, his previous annual reports, his sexual predator evaluation, and a personal interview with Norris, some of which contained references to the dismissed crimes as part of Norris' patient history. The district court specifically found that Dr. Thacker “did not consider or base her opinion on the [prior alleged crimes].” To the extent Norris is objecting to Dr. Thacker's testimony on these grounds, he did not preserve the issue with a contemporaneous objection. See State v. King, 288 Kan. 333, 343, 204 P.3d 585 (2009). To the extent Norris contends the record does not support the district court's finding that Dr. Thacker did not rely on Norris' prior alleged crimes in arriving at her opinion, his argument fails. Dr. Thacker expressly testified that she did not rely on the dismissed charges, and there is nothing in the record to suggest otherwise. Indeed, Norris does not point to anything in the record; rather, he asks us to question Dr. Thacker's credibility. However, we will not reweigh the evidence or pass on the credibility of witnesses. See J.M.D., 293 Kan. at 171.
2. Hearsay Evidence
Norris next argues that the district court erred because it allowed expert testimony that was based on hearsay. K.S.A. 60–456(b) states:
“If the witness is testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to such opinions as the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness.”
K.S.A.2013 Supp. 59–29a06(c) states:
“Notwithstanding K.S.A. 60–456, and amendments thereto, at any proceeding conducted under K.S.A. 59–29a01 et seq., and amendments thereto, the parties shall be permitted to call expert witnesses. The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If the facts or data are of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, such facts and data need not be admissible in evidence in order for the opinion or inference to be admitted.”
A panel of this court recently addressed these rules:
“Under K.S.A.2013 Supp. 59–29a06(c), expert witnesses testifying at a commitment proceeding may base their opinions on hearsay or other inadmissible information if that material is of the sort reasonably relied upon by professionals in their field. The plain language of the statute says as much.” In re Care & Treatment of Quary, 50 Kan.App.2d 296, 301, 324 P.3d 331 (2014).
This court went on to say that “otherwise inadmissible information on which an expert relies in forming his or her opinion may not be admitted as substantive evidence because of that reliance. [Citations omitted.]” 50 Kan.App.2d at 301. The Quary court continued:
“[A] factfinder may consider the inadmissible information to assess the worth of the expert opinion. If the foundational information reasonably supports the expert witness' conclusions, the finder of fact may favorably consider those conclusions in deciding the controlling issues. Conversely, should the information fail to logically bolster the expert's reasoning, the finder of fact may discount or discard those opinions as unworthy of belief. In that way, a factfinder may distinguish among experts offering conflicting conclusions by looking at the strength of the underlying information and its reasoned connection to those conclusions. [Citations omitted.]” 50 Kan.App.2d at 302.
Thus, if the district court looks to hearsay evidence as substantive rather than as a basis to evaluate the expert's opinion, it errs. Quary, 50 Kan.App.2d at 302. This error, however, may be harmless. Quary, 50 Kan.App.2d at 305–06.
In questioning Dr. Thacker, the State asked about her opinion of Norris' progress in the SPTP. Dr. Thacker began to describe various written reports of bad acts Norris had committed including being argumentative with staff and taking contraband items to the cafeteria. Norris objected at that point to Dr. Thacker testifying to “anything, like, in notes when she wasn't even dealing with Mr. Norris.” The State argued the hearsay evidence was allowed if Dr. Thacker relied on it in forming her opinion, and the district court overruled the objection. The questioning regarding those incidents then abruptly ended and moved to a different subject before Dr. Thacker could describe how that evidence influenced her opinion. The district court referenced Norris' reported bad behavior in its memorandum decision.
The State concedes that the district court could not rely on the hearsay evidence as substantive evidence. But the State contends the error was harmless. When evaluating the harmlessness of an error that is statutory in nature, as here, an appellate court must determine “if there is a reasonable probability that the error will or did affect the outcome of the trial in light of the entire record .” State v. Ward, 292 Kan. 541, 569, 256 P.3d 801 (2011) cert. denied 132 S.Ct. 1594(292). Our review of the entire record convinces us the error was harmless.
Both Dr. Thacker and Dr. Nwachukwu–Udaku, Norris' primary treating psychologists, testified that in their opinions, Norris continued to suffer from his previously diagnosed mental disorders. Dr. Nwachukwu–Udaku testified to Norris' slow progress through the program designed to reduce the risk of reoffending and described his likelihood of reoffending as “really high.” While the district court erroneously referenced the hearsay evidence in its opinion, the strength of the testimony of Norris' doctors leads us to conclude that there is no reasonable probability the error affected the outcome.
3. Reweighing the Evidence
In challenging the sufficiency of the evidence, Norris asks us to reweigh the evidence presented below in two respects-Norris' medical condition and the efficacy of different psychological tests. It is well established that an appellate court should not reweigh evidence or pass on the credibility of the witness in reviewing sufficiency of the evidence. J.M.D., 293 Kan. at 171.
All three of the expert witnesses testified that they were not medical doctors and could not fully discuss the implications of Norris' medical conditions. They also offered varying opinions as to the efficacy of various psychological exams. The district court found Dr. Mintz' testimony regarding Norris' medical condition “tempered by the fact Mintz is not a medical doctor and Mintz' only information concerning [Norris'] libido only come from Norris.” The district court specifically found that “Norris is a less than reliable reporter,” noting inconsistencies in Norris' claims regarding his medical condition. Dr. Thacker and Dr. Nwachukwu–Udaku's made ordinary observations about Norris' physical condition and considered those observations in forming their opinions. Again, we decline Norris' invitation to reweigh the evidence presented below. See J.M.D., 293 Kan. at 171.
Norris' Eligibility for Conditional Release
Next, Norris argues on appeal that the district court erroneously concluded that Norris was not eligible, as a matter of law, for conditional release. In its memorandum decision, the district court stated:
“Weighing against Norris if placed on conditional release is that he has not completed Phase 3 and would not complete Phases 4–7. It is clear the legislature intended and contemplated that a respondent would be on transitional release and thus complete all 7 phases of the program before being placed on conditional release as K.S.A. 59–29a18 states, ‘During any period the person is in transitional release, the person committed under this act at least annually, and at any other time deemed appropriate by treatment staff, shall be examined....’ “
The statute in question reads:
“(a) During any period the person is in transitional release, the person committed under this act at least annually, and at any other time deemed appropriate by the treatment staff, shall be examined by the treatment staff to determine if the person's mental abnormality or personality disorder has so changed so as to warrant such person being considered for conditional release. The treatment staff shall forward a report of its examination to the court. The court shall review the same. If the court determines that probable cause exists to believe that the person's mental abnormality or personality disorder has so changed that the person is safe to be placed in conditional release, the court shall then set a hearing on the issue. The attorney general shall have the burden of proof to show beyond a reasonable doubt that the person's mental abnormality or personality disorder remains such that the person is not safe to be at large and that if placed on conditional release is likely to engage in repeat acts of sexual violence. The person shall have the same rights as enumerated in K.S.A. 59–29a06 and amendments thereto. Subsequent to either a court review or a hearing, the court shall issue an appropriate order with findings of fact. The order of the court shall be provided to the attorney general, the person and the secretary.
“(b) If, after the hearing, the court is convinced beyond a reasonable doubt that the person is not appropriate for conditional release, the court shall order that the person remain either in secure commitment or in transitional release. Otherwise, the court shall order that the person be placed on conditional release.” K.S .A. 59–29a18.”
Norris argues a patient is legally eligible for conditional release even if the patient is not on transitional release. Statutory interpretation is a question of law subject to unlimited review. Moser v. Kansas Dept. of Revenue, 289 Kan. 513, 516, 213 P.3d 1061 (2009). “[S]tatutory interpretation begins with the language selected by the legislature. If that language is clear, if it is unambiguous, then statutory interpretation ends there as well.” Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 629, 176 P.3d 938 (2008).
Multiple statutory provisions exist by which a committed person may seek transfer to a different stage of the SPTP. The statutory scheme requires a number of “at least annually” reviews of a patient's status and directs the district court to hold hearings when a committed person has progressed to the point of transferring to a later stage of the program. K.S.A 59–29a 18(a).The statute at issue here describes one such annual review that can result in the transfer of a patient from transitional release to conditional release. However, a committed person may, at any time, file a petition for transfer to any stage of release or discharge, as “[n]othing in this act shall prohibit a person from filing a petition for transitional release, conditional release or final discharge pursuant to this act.” K.S.A.2013 Supp. 59–29al 1(a). As such, Norris is correct that a committed person at any stage of the SPTP is legally eligible for conditional release if the State is unable to meet its statutory burden to factually prove the patient is subject to ongoing commitment.
When read in the context of its entire ruling, the district court's statement is not tantamount to a legal holding that Norris was ineligible for conditional release because he had not obtained transitional release status. When the district court said that “[i]t is clear the legislature intended and contemplated that a respondent would be on transitional release and thus complete all 7 phases of the program before being placed on conditional release” it was merely describing the overall statutory scheme—and the description is accurate. Dr. Thacker testified to the elements of the different treatment phases in the SPTP, each phase teaching the patient skills that are important to prevent relapse and reduce the patient's likelihood to reoffend. The statutory scheme codifies the SPTP progression in that each phase in the treatment process triggers an automatic review which may result in moving the patient to a higher phase of treatment. See K.S.A.2013 Supp. 59–29a08(d) (moving a committed person to transitional release); see also K.S.A. 59–29a18(a) (moving a committed person from transitional release to conditional release); K.S.A.2013 Supp. 59–29a19(b) (moving a committed person from conditional release to final discharge).
The district court was not announcing a legal holding that completely barred Norris from achieving conditional release. Rather, the district court was accurately describing the ordinarily intended progression through the SPTP. While a committed person may petition for conditional release at any time—and may win such release if the State fails to meet its burden—the legislature constructed a stage-by-stage treatment program that was intended to lead to conditional release if followed. The district court was permitted to consider Norris' failure to complete this statutorily created treatment progression as evidence in favor of the State's contention that Norris was not eligible for conditional release.
Norris' Postrelease Housing Plans
Finally, Norris argues that the district court erred when it granted the State's objection to Dr. Mintz' testimony concerning conditional release housing facilities. The district court granted the State's objection to exclude the evidence “[b]ecause that's not the issue” and said, “we'll jump that bridge when we get to it.”
“ ‘Generally, when considering a challenge to a district judge's admission of evidence, an appellate court must first consider relevance. Unless prohibited by statute, constitutional provision, or court decision, all relevant evidence is admissible. K.S.A. 60–407(f). Evidence is relevant if it has any tendency in reason to prove any material fact. K.S.A. 60–401(b). To establish relevance, there must be some material or logical connection between the asserted facts and the inference or result they are intended to establish. [Citation omitted.]’ “ Mooney v. City of Overland Park, 283 Kan. 617, 620, 153 P.3d 1252 (2007) (quoting State v. Gunby, 282 Kan. 39, 47, 144 P.3d 647 [2006] ). “Material evidence goes to a fact at issue that is significant under the substantive law of the case.” State v. Martinez, 290 Kan. 992, 1009, 236 P.3d 481 (2010).
The question before the district court was whether the State could show “beyond a reasonable doubt that the person's mental abnormality or personality disorder remains such that the person is not safe to be at large and that if placed on conditional release is likely to engage in repeat acts of sexual violence.” K.S.A. 59–29a18(a). In contrast, 2013 Supp. K.S.A. 59–59al9(c) directs that after the district court has made the determination to place a committed person on conditional release, the district court, “based upon the recommendation of the treatment staff, shall establish a plan of treatment which the person shall be ordered to follow. This plan of treatment may include, but shall not be limited to: Provisions as to where the person shall reside and with whom....” Simply put, the conditions of a patient's release are not relevant or material to the determination of whether a patient should be placed on conditional release. The district court did not err in stating it would address Dr. Mintz' recommendations if and when Norris was placed on conditional release.
Affirmed.