263 Kan. 822
(953 P2d 666)
No. 74,112
In the Matter of the Care and Treatment of KENNETH M. HAY, Appellant.
SYLLABUS BY THE COURT
1. The Sexually Violent Predator Act, K.S.A. 59-29a01 et seq., does not violate substantive due process.
2. Involuntary commitment pursuant to the Sexually Violent Predator Act, K.S.A. 59-29a01 et seq., is a civil confinement, not criminal or punitive. Therefore, the Act does not violate the prohibition against double jeopardy or ex post facto laws.
3. The constitutionality of a statute is presumed, and all doubts must be resolved in favor of its validity. Before a statute may be struck down, it must clearly appear that the statute violates the Constitution.
4. The fundamental requirement of due process is a fair trial in a fair tribunal. The essential elements of due process of law are notice and an opportunity to be heard and to defend in an orderly proceeding adapted to the nature of the case.
5. The basic requirements of procedural due process are clearly satisfied by the Sexually Violent Predator Act, K.S.A. 59-29a01 et seq., which provides for all necessary basic protections, including appointed counsel, a probable cause hearing, appointment of qualified experts for examinations, a jury trial requiring a unanimous decision, appeals, annual examinations, discharge petitions, hearings, and the strictest possible burden of proof on the State.
6. As the tests for determining the constitutionality of a statute under due process and equal protection grounds weigh almost identical factors, the United States Supreme Court's decision in Kansas v. Hendricks, 521 U.S. ___, 138 L. Ed. 2d 501, 117 S. Ct. 2072 (1997), that the Sexually Violent Predator Act, K.S.A. 59-29a01 et seq., does not violate substantive due process, indicates the Act survives equal protection scrutiny as well.
7. The Sexually Violent Predator Act, K.S.A. 59-29a01 et seq., does not treat similarly situated individuals dissimilarly. All members of the class of persons who are sexually violent predators with a mental abnormality or personality disorder likely to engage in predatory acts of sexual violence are subject to identical treatment, and there exist clear distinctions between this class and other classes which are not similarly treated.
8. The legislature has broad constitutional authority to adopt statutory programs to confine and treat people who might be dangerous to themselves or others and who suffer from some mental ailment, whether a mental abnormality, a personality disorder, or a mental illness as statutorily defined. The legislature, however, is under no duty to act to the fullest extent of its authority.
9. Equal protection of the law does not require the State to choose between attacking every aspect of public danger or not attacking any part of the danger at all. The legislative authority is not bound to extend its regulations to all cases which it might possibly reach. The legislature is free to recognize degrees of harm, and it may confine its restrictions to those classes of cases where the need is deemed to be the clearest.
10. The Sexually Violent Predator Act, K.S.A. 59-29a01 et seq., does not violate equal protection principles because it is narrowly tailored to deal with a compelling State interest.
11. The Sexually Violent Predator Act, K.S.A. 59-29a01 et seq., is not overly broad or vague. The Act is comprehensive, understandable, capable of application, and sufficiently clear and definite to withstand a challenge of vagueness and overbreadth.
12. An involuntary commitment pursuant to the Sexually Violent Predator Act, K.S.A. 59-29a01 et seq., does not violate a plea agreement governing a prior conviction. Commitment under the Act is grounded solely on a mental ailment and present dangerousness. Prior convictions are not the basis for commitment under the Act and serve only to identify individuals as a member of the pool of people potentially subject to the Act. Civil commitment following the service of a sentence is collateral to a plea and independent of the criminal case.
13. There exists no basis for an argument that the Sexually Violent Predator Act, K.S.A. 59-29a01 et seq., violates the prohibition against cruel and unusual punishment where commitment proceedings under the Act have been clearly held to be civil in nature, not criminal or punitive.
14. The probable cause determination in a sexual predator case must be compared to that of a criminal trial and requires evidence sufficient to cause a person of ordinary prudence and action to conscientiously entertain a reasonable belief that the accused is a sexually violent predator.
15. Under the facts of this case, the State presented evidence at the probable cause hearing that appellant was a sexually violent predator, pursuant to K.S.A. 59-29a02(a), and appellant has failed to show that any error at the probable cause hearing prejudiced him at trial. Where an accused has gone to trial and been found to be a sexually violent predator beyond a reasonable doubt, any error at the probable cause hearing stage is harmless unless it appears that the error caused prejudice at trial.
16. In the absence of an objection at the trial court level to the failure to make findings under K.S.A. 60-252, the trial judge is presumed to have made necessary findings, and this precludes appellate review of this issue.
17. Our standard of review regarding the admission or exclusion of evidence, subject to exclusionary rules, is that of abuse of the trial court's discretion. A court may only be said to have abused its discretion when its actions are arbitrary, fanciful, or unreasonable, or when no reasonable person would adopt the view of the trial court.
18. In order to establish that an individual is a sexually violent predator, the State is required to show he or she has been convicted or charged with a sexually violent offense and suffers from a mental abnormality or personality disorder which makes him or her likely to engage in predatory acts of sexual violence. Evidence of prior sexually violent acts is clearly relevant to prove the individual suffers from a mental abnormality or personality disorder and the likelihood of engaging in predatory acts of sexual violence in the future.
19. Where evidence of the nature prohibited by K.S.A. 60-455 is independently admissible, it may properly be received. The critical issues in a sexual predator case make the evidence of prior conduct, charged or uncharged, material evidence in the case. The prohibitions of K.S.A. 60-455 are not applicable or governing in a case of this nature.
20. The existence of a plan to commit further sex crimes is highly relevant in a sexually violent predator case and is clearly admissible.
21. Under the facts of this case, the trial court, under pressure from the statutory 45-day time limitation to try this sexually violent predator case, fairly ruled upon discovery matters and did not abuse its discretion.
22. The privilege against self-incrimination does not apply to civil commitment proceedings under the Sexually Violent Predator Act, K.S.A. 59-29a01 et seq.
23. It is the duty of the trial court to properly instruct the jury upon a party's theory of the case. Errors regarding jury instructions will not demand reversal unless they result in prejudice to the appealing party. Instructions in any particular action are to be considered together and read as a whole, and where they fairly instruct the jury on the law governing the case, error in an isolated instruction may be disregarded as harmless. If the instructions are substantially correct, and the jury could not reasonably be misled by them, the instructions will be approved on appeal.
24. As the State's burden under the Sexually Violent Predator Act, K.S.A. 59-29a01 et seq., is proof beyond a reasonable doubt, our standard of review when the sufficiency of the evidence is challenged is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced a reasonable factfinder could have found the defendant to be a sexually violent predator beyond a reasonable doubt.
Appeal from Johnson district court; PETER V. RUDDICK, judge. Opinion filed January 30, 1998. Affirmed.
Nancy Orrick, of Olathe, argued the cause and was on the brief for appellant.
W. Scott Toth, assistant district attorney, argued the cause, and James P. Muehlberger, assistant district attorney, Paul J. Morrison, district attorney, and Carla J. Stovall, attorney general, were with him on the brief for appellee.
The opinion of the court was delivered by
LARSON, J.: Kenneth M. Hay appeals from a jury finding that he is a sexually violent predator and from his involuntary civil confinement pursuant to the Kansas Sexually Violent Predator Act (the Act), K.S.A. 59-29a01 et seq.
Many of the 18 issues which are raised by this appeal have been decided by the United States Supreme Court decision in Kansas v. Hendricks, 521 U.S. __, 138 L. Ed. 2d 501, 117 S. Ct. 2072 (1997), which reversed our decision in In re Care & Treatment of Hendricks, 259 Kan. 246, 912 P.2d 129 (1996). Hay also raises issues that directly relate to the facts in this case, which we first set forth in some detail.
Statement of facts
Hay has been convicted of numerous sexual offenses. In October 1984, he pled no contest to a misdemeanor battery charge after he unsuccessfully attempted to rape his former wife, then masturbated and ejaculated on her back.
In July 1988, Hay pled guilty to the offense of harassment by telephone. This charge resulted from 20 to 30 sexually obscene phone calls made to various strangers. In March 1991, Hay was convicted after a jury trial of lewd and lascivious behavior. In February 1993, Hay pled guilty to five counts of aggravated indecent solicitation of a child, and the State dismissed four counts of lewd and lascivious behavior and three counts of aggravated indecent solicitation of a child. The underlying factual basis for the 1991 and 1993 charges involved Hay allegedly luring 6- to 12-year-old children, almost exclusively girls, toward his vehicle where he was masturbating.
The State's petition to involuntarily commit and treat Hay under the Act was filed on February 23, 1995. The probable cause hearing was held on February 28, 1995, in which Hay's motion for dismissal was taken under advisement with leave for written briefs to be filed.
At the hearing, the State presented the testimony of a psychologist, Robert Huerter, from the Larned State Security Hospital. Huerter testified Hay had been diagnosed with pedophilia, opposite sex, nonexclusive type and personality disorder not otherwise specified. Huerter found it clinically significant that Hay had demonstrated progression in his acts and had multiple victims and that many of his victims were strangers. Huerter believed that Hay posed a danger to others, especially young girls.
The court found probable cause to believe Hay was a sexually violent predator and ordered his evaluation at Larned State Security Hospital. Prior to a trial scheduled within the 45-day time limitation set by the statute, the court held two hearings regarding discovery issues. The court denied Hay's motion to dismiss on March 28, 1995.
The trial commenced on April 3, 1995, and the State presented the testimony of numerous victims of the various crimes, including one girl who stated that Hay had given her a bath and rubbed her private parts. The most damaging evidence presented by the State was that of Mark Dowling, another convicted sex offender, who, over Hay's vigorous objections, testified he had communicated with Hay on numerous occasions and claimed they had formulated a plan for committing further sex offenses upon their release from prison.
Dowling testified that he and Hay had discussed a plan to abduct a young girl, hold her in some isolated area, and subject her into becoming a sex slave through psychological and sexual conditioning. Although Dowling testified directly as to this plan, a letter he had written to Hay, which had been accidentally intercepted by the district attorney's office, was admitted into evidence. This letter was graphic in detail and showed Hay's sexual violations could be expected to escalate. Although Hay's counsel did a competent job in attempting to discredit Dowling, Dowling's testimony, if given credence by the jury, was sufficient by itself to justify the ultimate verdict which it reached in this case.
The State also presented the testimony of two expert witnesses, Dr. Charles Befort, a psychologist at Larned State Security Hospital, and Michael Boniello, a clinical social worker. Dr. Befort testified that he had evaluated Hay for several days in March 1995. He diagnosed Hay as a pedophile. Befort stated Hay had told him his current masturbation fantasies involve "little girls." It was significant to Befort that Hay's acts had become chronic, as they had occurred over a decade, and were progressive. Dr. Befort concluded that Hay was at a high risk to reoffend.
Boniello testified regarding the Sexual Offender's Treatment Program at the Lansing Correctional Facility. He testified that sexual abuse of children by adults results in emotional abuse to the child, regardless of whether the child is physically hurt. He also testified regarding progression and serialization of sex offenders. Boniello stated it would be very significant if a sex offender was found to be communicating with another sex offender.
Hay presented the testimony of Gary Heitman, a counselor at the Lansing Sexual Offender's Treatment Program, who had treated Hay. Heitman admitted Hay had some issues left to address at the completion of the program, but claimed he would not have certified Hay's completion of the program if he had not seen some advancement. Heitman stated that the great majority of prisoners who receive treatment in the program do not reoffend.
Hay also presented the testimony of Dr. William Logan and Dr. John Wisner, both forensic psychiatrists. Dr. Logan essentially testified that most pedophiles do not reoffend and that he had noticed improvement in Hay's condition. He estimated Hay's chances of reoffending at about 20% and denied that Hay's offenses displayed progression. Dr. Wisner testified there was no evidence that the viewing of adults engaging in sexual acts produces harm in a child. Dr. Wisner did not consider the acts Hay had engaged in to be violent or that Hay was at risk to progress.
At the conclusion of the evidence and following instructions, the jury determined Hay was a sexually violent predator. Hay's appeal was transferred to us on our own motion pursuant to K.S.A. 20-3018(c) and held pending the appeal in the Hendricks case.
Constitutional challenges to the Kansas Sexually Violent Predator Act, K.S.A. 59-29a01 et seq.
Hay has raised the following issues pertaining to the constitutionality of the Sexually Violent Predator Act: (1) The Act is criminal in nature; (2) the Act violates the prohibition against double jeopardy; (3) the Act violates the prohibition on ex post facto laws; (4) the Act violates substantive due process; (5) the Act violates procedural due process; (6) the Act violates guarantees of equal protection; (7) the Act is overly broad and vague; (8) the filing of the petition under the Act violated the 1993 plea agreement between the State and Hay; and (9) a commitment pursuant to the Act constitutes cruel and unusual punishment.
We will not attempt here to comment or ruminate on the United States Supreme Court opinion in Hendricks, but only to set forth how the majority opinion governs the issues Hay raises. To the extent analysis is necessary or helpful, we have been aided by McAllister, "Punishing" Sex Offenders, 46 Kan. L. Rev. 27 (1997).
Hendricks explicitly governs as to the first four of Hay's contentions. The Court unanimously rejected the substantive due process challenges to the Act. 138 L. Ed. 2d at 511-14. Justice Breyer's dissent began: "I agree with the majority that the Kansas Act's 'definition of "mental abnormality"' satisfies the 'substantive' requirements of the Due Process Clause." 138 L. Ed. 2d at 522. This disposes of the substantive due process issue raised by Hay.
As to Hay's first contention that the Act is criminal in nature, a majority of the Court stated: "We therefore hold that the Act does not establish criminal proceedings and that involuntary confinement pursuant to the Act is not punitive. Our conclusion that the Act is nonpunitive thus removes an essential prerequisite for both Hendricks' double jeopardy and ex post facto claims." 138 L. Ed. 2d at 519.
The Hendricks majority opinion relied in part on its earlier cases of Allen v. Illinois, 478 U.S. 364, 366, 92 L. Ed. 2d 296, 106 S. Ct. 2988 (1986) (Illinois statute permitting commitment of "mentally ill" and dangerous individual), and Minnesota v. Probate Court, 309 U.S. 270, 271-72, 84 L. Ed. 744, 60 S. Ct. 523 (1940) (Minnesota statute permitting commitment of dangerous individual with "psychopathic personality"), in noting:
"We have sustained civil commitment statutes when they have coupled proof of dangerousness with the proof of some additional factor, such as a 'mental illness' or 'mental abnormality.' . . . The Kansas Act is plainly of a kind with these other civil commitment statutes: . . . . The precommitment requirement of a 'mental abnormality' or 'personality disorder' is consistent with the requirements of these other statutes that we have upheld in that it narrows the class of persons eligible for confinement to those who are unable to control their dangerousness." 138 L. Ed. 2d at 512-13.
With this recognition that the statute is, as it specifically states, "a civil commitment procedure for the long-term care and treatment of the sexually violent predator," K.S.A. 59-29a01, the civil nature of the proceedings is clearly established.
We will not comment on either the Hendricks' majority or minority opinions' concern with the "treatment" aspect of the Act, for there was no evidence in the record when the case was first presented to us as to Hay's treatment other than his commitment to the Kansas Department of Social and Rehabilitation Services to be housed in a totally separate and segregated unit from the general prison population. The Act has been deemed a civil commitment which is not criminal in nature. Due to this significant holding, the foundation for Hay's constitutional challenges has been shattered; therefore the remainder of his arguments must clearly fall.
As to the double jeopardy issue, the Hendricks Court held: "Because we have determined that the Kansas Act is civil in nature, initiation of its commitment proceedings does not constitute a second prosecution." 138 L. Ed. 2d at 519-20. Hendricks also argued that even if the Act survived the "multiple prosecution" test, it failed the "same elements" test of Blockburger v. United States, 284 U.S. 299, 76 L. Ed. 306, 52 S. Ct. 180 (1932). The Court replied:
"Under Blockburger, 'where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.' [Citation omitted.] The Blockburger test, however, simply does not apply outside of the successive prosecution context. A proceeding under the Act does not define an 'offense,' the elements of which can be compared to the elements of an offense for which the person may previously have been convicted. Nor does the Act make the commission of a specified 'offense' the basis for invoking the commitment proceedings. Instead, it uses a prior conviction (or previously charged conduct) for evidentiary purposes to determine whether a person suffers from a 'mental abnormally' or 'personality disorder' and also poses a threat to the public. Accordingly, we are unpersuaded by Hendricks' novel application of the Blockburger test and conclude that the Act does not violate the Double Jeopardy Clause." 138 L. Ed. 2d at 520.
Hendricks' ex post facto contention was quickly discounted because
"the Act does not impose punishment; thus, its application does not raise ex post facto concerns. Moreover, the Act clearly does not have retroactive effect. . . . Because the Act does not criminalize conduct legal before its enactment, nor deprive Hendricks of any defense that was available to him at the time of his crimes, the Act does not violate the Ex Post Facto Clause." 138 L. Ed. 2d at 520-21.
Although the remaining issues raised by Hay were not directly ruled upon by the United States Supreme Court in Hendricks, each is without sufficient justification to require or allow us to strike down the Act on the basis of unconstitutionality. We commence our limited analysis of these remaining issues by remembering our longstanding and well-established rules that the constitutionality of a statute is presumed, that all doubts must be resolved in favor of its validity, and that before a statute may be struck down, it must clearly appear that the statute violates the Constitution. U.S.D. No. 503 v. McKinney, 236 Kan. 224, 230, 689 P.2d 860 (1984).
The fundamental requirement of due process is a fair trial in a fair tribunal. State v. Green, 245 Kan. 398, 404, 781 P.2d 678 (1989). To the same result, in Crane v. Mitchell County U.S.D. 273, 232 Kan. 51, Syl. ¶ 1, 652 P.2d 205 (1982), we said: "The essential elements of due process of law are notice and an opportunity to be heard and to defend in an orderly proceeding adapted to the nature of the case."
These requirements are clearly satisfied by this Act, which provides for all necessary basic protections, including appointed counsel, a probable cause hearing, appointment of qualified experts for examinations, a jury trial requiring a unanimous decision, appeals, annual examinations, discharge petitions, hearings, and the strictest possible burden of proof on the State.
The lengthy descriptions of the Act in the In re Care & Treatment of Hendricks, 259 Kan. at 267-69, and the Hendricks, 138 L. Ed. 2d at 508-10 opinions suggest the procedures for civil commitment under the Act are adequate to ensure that procedural due process is satisfied. Any assertion that a person found to be a sexual predator under the Act is limited to one attempt to seek release is without merit, and the right to receive additional evaluations continues after the trial. The obligations of procedural due process are clearly satisfied by the Act.
Although equal protection of the law is guaranteed by the Fourteenth Amendment to the United States Constitution and §§ 1 and 2 of the Bill of Rights of the Kansas Constitution, our decision on Hay's equal protection contention is foretold by the result of the substantive due process issue. The difference between due process and equal protection was established in Peterson v. Garvey Elevators, Inc., 252 Kan. 976, Syl. ¶ 1, 850 P.2d 893 (1993), where we explained:
"The difference between the constitutional concepts of due process and equal protection is that due process emphasizes fairness between the state and the individual dealing with the state, regardless of how other individuals in the same situation are treated, while equal protection emphasizes disparity in treatment by the state between classes of individuals whose situations arguably are indistinguishable."
Nevertheless, the tests for determining the constitutionality of a statute under due process and equal protection grounds weigh almost identical factors. Clements v. United States Fidelity & Guaranty Co., 243 Kan. 124, 127, 753 P.2d 1274 (1988). We make this constitutional analysis subject to a strict scrutiny standard, see Farley v. Engelken, 241 Kan. 663, 669, 740 P.2d 1058 (1987), with the burden placed on the State to show the required State interest for the action.
There is no doubt that the civil commitment of sexually violent predators involves so significant a deprivation of liberty that the protections of due process and equal protection are involved. However, in its finding that the Act did not violate substantive due process, the Court in Hendricks made the following statements which may likewise be applied to this equal protection issue:
"The Court has recognized that an individual's constitutionally protected interest in avoiding physical restraint may be overridden even in the civil context:
'[T]he liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly free from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members.' Jacobson v. Massachusetts, 197 U.S. 11, 26, 49 L. Ed. 643, 25 S. Ct. 358 (1905).
Accordingly, States have in certain narrow circumstances provided for the forcible civil detainment of people who are unable to control their behavior and who thereby pose a danger to the public health and safety. [Citations omitted.]" 138 L. Ed. 2d at 512.
We hold that Hay's contention that similarly situated people are not treated similarly under the Act is without merit. All members of the class of persons of which Hay is a part are subject to treatment identical to that which he has received, and there exist clear distinctions between this class and other classes which are not similarly treated.
The legislature has broad constitutional authority to adopt statutory programs to confine and treat people who might be dangerous to themselves or others and who suffer from some mental ailment, whether a mental abnormality, a personality disorder, or a mental illness as statutorily defined. The legislature, however, is under no duty to act to the fullest extent of its authority.
The Act focuses on the narrow problem of mental abnormality and violent predatory sex crimes. The legislative history shows the target group was a small number of habitual sex offenders, who, because of their psychological makeup, pose an immediate danger to the public.
Equal protection of the law does not require the State to choose between attacking every aspect of public danger or not attacking any part of the danger at all. As we said in Manzanares v. Bell, 214 Kan. 589, 615, 522 P.2d 1291 (1974): "'[T]he legislative authority . . . is not bound to extend its regulations to all cases which it might possibly reach. The legislature "is free to recognize degrees of harm and it may confine its restrictions to those classes of cases where the need is deemed to be the clearest."'" The Act does not violate equal protection principles for the same reason it does not violate substantive due process--it is narrowly tailored to deal with a compelling State interest.
Nor is the Act overly broad or vague. We are duty bound to avoid a vague construction of the Act as is reasonably possible. Boatright v. Kansas Racing Comm'n, 251 Kan 240, Syl. ¶ 1, 834 P.2d 368 (1992). All of the provisions of the Act were summarized in both Hendricks, 138 L. Ed. 2d at 508-10, and In re Care & Treatment of Hendricks, 259 Kan. at 267-69, which clearly indicate the Act is comprehensive, understandable, capable of application, and sufficiently clear and definite to withstand a challenge of vagueness and overbreadth.
Hay's claim that the filing of the commitment petition in this case violated his plea agreement is likewise without merit. Hay's argument is unpersuasive for several reasons.
Hay's involuntary commitment is grounded solely on his mental ailment and present dangerousness. His earlier convictions were not the basis for his commitment and served only to identify him as a member of the pool of people potentially subject to the Act. Hay's present confinement is not punishment for any offense, but merely civil commitment based on his mental condition.
Civil commitment following the service of a sentence is collateral to a plea and independent of the criminal case. See George v. Black, 732 F.2d 108, 110-11 (8th Cir. 1984). In addition, the plea agreement is immaterial as far as proceedings under the Act are concerned.
Last, there exists no basis for Hay's argument that the Act violates the prohibition against cruel and unusual punishment where commitment proceedings under the Act have been clearly held to be civil in nature, not criminal or punitive. This issue is without merit and requires no further comment.
With these nine constitutional issues resolved, we turn to issues pertaining to pretrial and trial matters, none of which compel reversal.
Probable cause
Hay first alleges the trial court erred in its initial finding of probable cause. The probable cause determination in a sexual predator case must be compared to that of a criminal trial and requires evidence sufficient to cause a person of ordinary prudence and action to conscientiously entertain a reasonable belief that the accused is a sexually violent predator. See State v. Butler, 257 Kan. 1043, 1059, 897 P.2d 1077 (1995); State v. Chapman, 252 Kan. 606, 620, 847 P.2d 1247 (1993).
Hay makes a shatter-gun argument of innumerable violations, including insufficient petition, improper foundation of an expert opinion, infringement of the physician-patient privilege, and the taking of judicial notice of court files, then finally contends the only real question was "SHOULD A FLASHER BE LOCKED UP FOREVER?" None of these contentions are buttressed by any legal arguments. They also are in violation of Supreme Court Rule 6.02(d) (1997 Kan. Ct. R. Annot. 33), as they are made without being keyed to the record on appeal and are, therefore, presumed to be without support in the record. The Minnesota cases Hay cites are not applicable to the factual basis of this case or to Kansas law.
The St