In re Care & Treatment of Ritchie

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No. 109,130
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IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Matter of the Care and Treatment of RANDALL J. RITCHIE.


SYLLABUS BY THE COURT

1.
In a bench trial of a sexually violent predator petition, the district court may
disregard the lack of a contemporaneous objection to evidence during trial when the
defendant makes the court aware of that objection in a posttrial motion filed after the
matter has been taken under advisement by the court, but prior to its decision.

2.
The Sexually Violent Predator Act, K.S.A. 59-29a01 et seq., requires an
examination by a qualified professional to determine whether a person is a sexually
violent predator if the State seeks to commit that person for treatment.

3.
The regulations governing the supervision of temporarily licensed psychologists
involved in determining if someone is a sexually violent predator require the supervising
psychologist to be available to the attending psychologist at the points of decision making
regarding the diagnosis and treatment of clients or patients. The supervisor must review
and evaluate the psychological services delivered and all procedures used. The supervisor
must make sure that each client or patient knows that the attending psychologist is
practicing psychology under supervision. The supervisor must maintain documentation of
the details of each type of psychological service and procedure used by the one
supervised, as well as a record of the competence of that psychologist in utilizing each.

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4.
Just because a psychologist is working under a temporary license does not mean
he or she is not qualified to conduct a sexually violent predator evaluation.

5.
In order to legally find someone is a sexually violent predator, the State must
prove beyond a reasonable doubt that the individual has been convicted of or charged
with a sexually violent offense; suffers from a mental abnormality or personality
disorder; is likely to commit repeat acts of sexual violence because of a mental
abnormality or personality disorder; and has serious difficulty controlling his or her
dangerous behavior.

6.
The Sexually Violent Predator Act, K.S.A. 59-29a01 et seq., is a self-contained
statutory scheme that, despite possessing many characteristics of a criminal proceeding,
is a civil proceeding. Therefore, the right of confrontation found in the Sixth Amendment
to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights
concerns criminal prosecutions and does not apply in civil commitment proceedings.

Appeal from Barton District Court; MIKE KEELEY, judge. Opinion filed October 11, 2013.
Affirmed.

Robert A. Anderson, Sr., of Robert A. Anderson, Sr., Law Office, of Ellinwood, for appellant.

Lee J. Davidson, assistant attorney general, and Derek Schmidt, attorney general, for appellee.

Before MCANANY, P.J., GREEN and HILL, JJ.

HILL, J.: Randall J. Ritchie appeals his commitment for treatment as a sexually
violent predator. He makes three claims: The court should not have admitted the
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testimony of a psychologist with a temporary license; there was insufficient evidence to
support a finding that he is a sexually violent predator; and the 2011 amended Sexually
Violent Predator Act is unconstitutional. We do not agree. We affirm his commitment.

There is a history of sexual assaults here.

In 1994, Ritchie agreed to plead guilty to one count of aggravated kidnapping, a
violation of K.S.A. 21-3421. According to Ritchie, the 13-year-old victim had been
walking with her friends when he "grabbed her off the street, forced her into a garage and
raped her vaginally."

Ritchie received parole in November 2001. Then, in 2004, the Sex Offender
Override Panel viewed Ritchie as a "low risk" to reoffend and relieved Ritchie of normal
postrelease sex offender supervision protocols by allowing him to have unsupervised
visits with his children and to stop attending aftercare treatment. By October 2005,
Ritchie was required to report by mail.

Unfortunately, in June 2006, Ritchie saw what he believed to be a "crime of
opportunity" and got out of his car to stop an 8-year-old girl riding her bicycle. Ritchie
then proceeded to insert his "little finger" into the child's vagina. Ritchie did not report
this incident to his parole officer. Two other incidents involving young girls occurred just
4 months later at a Walmart store in Great Bend.

While in Walmart in October 2006, Ritchie approached a girl he believed to be
around 8 years old and "picked her up, twirled her around, and sat her down and walked
off." The next day, Ritchie returned to Walmart where he walked up to an 8-year-old girl
and "put [his] hand underneath her dress and touched her vagina and inserted [his]
pinkie." The girl screamed and Ritchie ran off. But he was apprehended leaving the store.

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Ritchie eventually pleaded guilty to an amended charge of aggravated indecent
solicitation of a child for the June 2006 offense in exchange for the State dismissing a
criminal restraint charge for the same offense and the charge of aggravated indecent
liberties with a child under Jessica's Law for the incident in October 2006. The district
court sentenced Ritchie to 52 months' imprisonment.

Toward the end of his prison term, the State sought to commit Ritchie as a
sexually violent predator under the Kansas Sexually Violent Predator Act, K.S.A. 59-
29a01 et seq. In its petition, the State included a clinical services report prepared by Dr.
Jane Kohrs after she evaluated Ritchie in May 2011. Dr. Kohrs has prepared
approximately 500 clinical services reports. Dr. Kohrs concluded that under the
Diagnostic and Statistical Manual of Mental Disorders (4th ed. 2000) (DSM-IV), Ritchie
had an Axis I diagnosis of pedophilia, nonexclusive type, sexually attracted to females
with elements of nonconsent frotteurism. Dr. Kohrs had also completed the Static-99R
actuarial instrument. Ritchie's score placed his risk of recidivism in the "moderate high"
range.

Ritchie stipulated that probable cause existed to believe he was a sexually violent
predator, and he waived his right to a probable cause hearing under K.S.A. 59-29a05. The
district court ordered Ritchie to the Larned State Security Hospital for a psychological
evaluation.

Dr. Rebecca Farr, a postdoctoral psychologist at the Larned State Security
Hospital, evaluated Ritchie. Dr. Farr has a psychology degree from California State
University and a Master of Science degree in psychology and a Ph.D. in clinical-
community psychology from the University of La Verne. At the time of Ritchie's
evaluation, Dr. Farr had a temporary Kansas license to practice psychology. She had
already satisfactorily completed the required 2,000 hours of postdoctorate clinical
supervised work and was waiting to take the necessary examination.
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Ritchie's case was Dr. Farr's first sexual predator evaluation assigned to her. Dr.
Farr testified she interviewed Ritchie twice for his forensic evaluation. She assessed
Ritchie as having Axis I diagnoses of pedophilia, frotteurism, and an Axis II diagnosis of
antisocial personality disorder. Dr. Farr had also administered the Static-99R and Static-
2002R actuarial instruments. Ritchie's scores on both instruments placed his risk of
recidivism in the "high-risk" and "moderate-high risk" range respectively.

The district court granted Ritchie's request for an independent evaluation. Ritchie
waived his right to a jury trial, and the matter was tried to the court in July 2012.

At trial, the State presented testimony from Dr. Kohrs, Dr. Farr, and Dr. John R.
Reid, the supervising psychologist for Dr. Farr at the Larned State Security Hospital.
Ritchie presented testimony from his own expert witness, Dr. Robert Barnett, the
psychologist appointed by the district court to conduct the independent evaluation. The
State also called Ritchie to testify, who likewise testified in his own behalf.

In Ritchie's written closing arguments, he argued that the forensic evaluation
report completed by Dr. Farr and Dr. Farr's testimony should be excluded because Dr.
Farr had violated the supervision requirements in the Kansas Administrative Regulations.

The district court rejected Ritchie's objections concerning Dr. Farr. The court
found that Ritchie was a sexually violent predator and committed him to the Larned State
Security Hospital for further treatment.

What must the State prove?

Whether an individual should be committed for treatment under the Sexually
Violent Predator Act involves an examination by a qualified professional to determine
whether that person is a sexually violent predator. K.S.A. 59-29a05(d). In his appeal,
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Ritchie first argues the district court abused its discretion in admitting Dr. Farr's forensic
evaluation report and corresponding expert opinion testimony because her report and
testimony lacked foundation. Specifically, Ritchie alleges Dr. Reid did not properly
supervise Dr. Farr in conducting the forensic evaluation report as required by the Kansas
Administrative Regulations.

Our standard of review on a question of whether the district court erred in
admitting certain evidence in an action under the Act is one of abuse of discretion. In re
Care & Treatment of Lair, 28 Kan. App. 2d 51, 53, 11 P.3d 517, rev. denied 270 Kan.
898 (2000). According to the Kansas Supreme Court in Fischer v. State, 296 Kan. 808,
Syl. ¶ 8, 295 P.3d 560 (2013), judicial discretion is abused if the judicial action is

 arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have
taken the view adopted by the trial court;
 based on an error of law, i.e., if the discretion is guided by an erroneous
legal conclusion; or
 based on an error of fact, i.e., if substantial competent evidence does not
support a factual finding on which a prerequisite conclusion of law or the
exercise of discretion is based.

Additionally, interpretation of a statute is a question of law which the appellate courts
review de novo. In re Care & Treatment of Hunt, 32 Kan. App. 2d 344, 353, 82 P.3d 861,
rev. denied 278 Kan. 845 (2004).

This issue has been preserved for appeal.

The State argues that Richie did not preserve this issue of Dr. Reid's failure to
supervise Dr. Farr because he did not make a timely and specific objection at trial prior to
the district court admitting the forensic evaluation report or hearing Dr. Farr's testimony.
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Indeed, the record indicates that Ritchie did not object before or during Dr. Farr's
testimony. In fact, when the State offered the forensic evaluation report into evidence
during Dr. Farr's testimony, Ritchie's attorney stated he had "[n]o objection." The first
time Ritchie took issue with the admissibility of the forensic evaluation report and Dr.
Farr's testimony was in his written closing arguments submitted to the district court
approximately 6 weeks after the bench trial. That is sufficient to preserve the issue for our
review.

In State v. Gordon, 219 Kan. 643, 652, 549 P.2d 886 (1976), superseded by statute
on other grounds as stated in State v. Murry, 271 Kan. 223, 21 P.3d 528 (2001), our
Supreme Court found the nature of a bench trial allows the district court to disregard the
lack of a contemporaneous objection to evidence during trial when the defendant makes
the district court aware of his or her objection in a posttrial motion after the district court
has taken the matter under advisement, but prior to its decision. The court held:

"Ordinarily, failure to make timely, specific objection to the admission of
evidence will bar consideration of the admissibility question on appellate review.
[Citations omitted.] Here, the appellant's objection was not 'timely' in the strict sense, but
there is no doubt the district court was apprised of the issue before it rendered its decision
. . . . What transpired is consistent with the rationale underlying the contemporaneous
objection rule—i.e. [,] objecting to admissibility and stating the grounds therefor permits
the court to preclude improper evidence from affecting the decision. This was a trial by
the court; no jurors had been swayed by the improper evidence. The court had not
rendered its decision when the issue was raised, and we think under the circumstances of
this case the spirit if not the letter of the contemporaneous objection rule was satisfied."
219 Kan. at 652.

Similarly, in State v. Parson, 226 Kan. 491, 493-94, 601 P.2d 680 (1979), our Supreme
Court, citing Gordon, relaxed the contemporaneous objection rule by holding that the
appellant's objections to the evidence stated in his argument in a motion for judgment of
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acquittal filed at the close of the State's case during a bench trial were sufficiently timely
to obtain appellate review.

The State acknowledges the holding in Gordon but argues "it is doubtful that
Gordon remains good law" in the face of our Supreme Court's clear reinvigoration of the
contemporaneous objection rule. See State v. King, 288 Kan. 333, 349, 204 P.3d 585
(2009). King noted, "From today forward, in accordance with the plain language of
K.S.A. 60-404, evidentiary claims . . . must be preserved by way of a contemporaneous
objection for those claims to be reviewed on appeal." 288 Kan. at 349. In other words, the
State seeks a rigid application of the contemporaneous objection rule.

Our Supreme Court's recent decision in State v. Kelly, 295 Kan. 587, 595, 285
P.3d 1026 (2012), convinces us that the Gordon ruling is still good. In Kelly, the court
held that the lack of an objection during a criminal bench trial on stipulated facts did not
preclude appellate review of the pretrial denial of a defendant's motion to suppress when
a different judge conducts the bench trial. While discussing the timeliness of a
defendant's contemporaneous objection to trial evidence made at sentencing, the Kelly
court acknowledged Gordon. The court stated, "Granted, we have considered posttrial
motions timely in some circumstances. For example, in [Gordon] we concluded an
objection stated after a bench trial but before the judge had ruled was timely interposed
because 'the spirit if not the letter of the contemporaneous objection rule was satisfied.'"
295 Kan. at 593. Had the Supreme Court wanted to alter the Gordon holding in any way
it could have done so at that time but did not.

Ritchie had a bench trial. At the close of evidence, Ritchie's counsel asked the
district court for a transcript of the proceedings and permission to submit his closing
argument in writing. Ritchie's counsel stated, "I would want to be able to cite to the
record and make legal argument and submission to the Court." The district court agreed
and ordered that each party would get a transcript and an appropriate amount of time to
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present arguments. In his written closing arguments, Ritchie stated his objection to Dr.
Farr's forensic evaluation report and testimony. And the State responded to Ritchie's
objection in its written closing arguments by addressing Dr. Farr's qualifications. In doing
so, the State noted that Ritchie had not objected to Dr. Farr's qualifications during trial.
But the State went on to frame Ritchie's objection in his written closing argument as a
"belated request" and did not argue the contemporaneous objection rule. Finally, the
district court considered Ritchie's objection before rendering its decision, as evidenced by
its ruling denying this objection in the journal entry committing Ritchie under the Act.

Because there is no indication that the Kansas Supreme Court is departing from its
previous position, Ritchie's objection made during his written closing argument preserved
this issue for appeal. See Gordon, 219 Kan. at 652.

A careful reading of the regulations reveals that Dr. Farr violated none of the
supervision requirements.

K.A.R. 102-1-5a sets out the supervision requirements for temporarily licensed
psychologists such as Dr. Farr. K.A.R. 102-1-5a(e)(3) states the supervisor shall:

"(B) be available to the supervisee at the points of decision making regarding the
diagnosis and treatment of clients or patients;
. . . .
"(D) . . . review and evaluate the psychological services delivered and
procedures used;
"(E) ensure that each client or patient knows that the supervisee is practicing
psychology under supervision;
. . . .
"(G) maintain documentation of the supervision that details each type of the
psychological services and procedures in which the supervisee engages and the
supervisee's competence in each."
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Ritchie asserts that Dr. Reid's supervision of Dr. Farr was deficient in two aspects.
First, Ritchie argues Dr. Reid neither met with Ritchie nor participated in Ritchie's two
interviews conducted by Dr. Farr. Such an allegation concerns K.A.R. 102-1-5a(e)(3)(E)
and K.A.R. 102-1-5a(f)(2). Second, Ritchie argues Dr. Reid was not involved at any
point in Dr. Farr's decision making in completing the evaluation. Ritchie maintains Dr.
Farr "must be supervised by a supervising psychologist during all decision points in the
process." (Emphasis added.) This allegation concerns K.A.R. 102-1-5a(e)(3)(B).

For authority, Ritchie relies upon Dr. Barnett's interpretation of the supervision
requirements under K.A.R. 102-1-5a. Dr. Barnett testified that in the case of
psychologists who supervise a temporary licensed psychologist, "All of the clients of the
trainee are required to have been met by the supervisor at least once" and that "it is a
requirement of the supervisory administration regulation [K.A.R. 102-1-5a] that the
supervisor be involved at all decision points in the process of evaluating or treating a
client." Dr. Barnett opined that Dr. Reid's failure to comply with both of these regulations
rose to the level of having sanctions imposed upon him.

A plain reading of the Kansas Administrative Regulation shows Dr. Barnett's
understanding of K.A.R. 102-1-5a is erroneous and that Ritchie fails to establish the
alleged violations of the regulation. No regulation requires a supervisor of a temporary
licensed psychologist to personally meet the patient or attend the interviews conducted by
the one supervised. Basically, Dr. Reid only had to ensure that Ritchie was notified that
Dr. Farr was under his supervision. See K.A.R. 102-1-5a(e)(3)(E). Additionally, Dr. Farr
had to provide to Ritchie, in writing, how to get in touch with Dr. Reid. See K.A.R. 102-
1-5a(f)(2). The record reveals that both of these requirements were satisfied when Dr.
Farr first met with Ritchie. Dr. Farr provided Ritchie with a supervision disclosure form
that indicated she was under Dr. Reid's supervision as a temporary licensed psychologist
and provided Ritchie with Dr. Reid's contact information.

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In like manner, Ritchie's assertion that a supervisor "must" be directly involved
during all decision points is directly contradicted by the language in K.A.R. 102-1-
5a(e)(3)(B), which only required that Dr. Reid "be available" to Dr. Farr. There is no
suggestion in the record that Dr. Reid was unavailable to Dr. Farr. In fact, the record
indicates that every week Dr. Farr met with Dr. Reid for at least 1 hour of individual
supervision and had at least 1 hour of group supervision with Dr. Reid and the other staff
psychologists.

This is not the first time that this issue has been raised on appeal. A prior panel of
this court in In re Care and Treatment of Stanley, No. 100,611, 2009 WL 3082539 (Kan.
App. 2009) (unpublished opinion), considered a similar challenge under K.A.R. 102-1-5a
to the admission of a forensic evaluation report. In that case, the panel found not only that
the appellant failed to establish an actual violation of K.A.R. 102-1-5a as a matter of law,
but that such a violation would not necessarily preclude admission of an expert's report
and testimony. The panel held:

"[E]ven if we assume that a violation of K.A.R. 102-1-5a took place, Stanley fails to
show why such a violation requires Dr. Subramanian's report and corresponding
testimony to be excluded from evidence. The Kansas Sexually Violent Predator Act
states only that '[t]he evaluation shall be conducted by a person deemed to be
professionally qualified to conduct such an examination.' K.S.A. 59-29a05(d). Stanley
does not allege Dr. Subramanian was professionally unqualified to conduct the
examination. Moreover, expert opinion testimony generally is admissible if it aids the
trier of fact with unfamiliar subjects or interpreting technical facts, or if it assists the trier
of fact in arriving at a reasonable factual conclusion from the evidence. [Citation
omitted.]." Stanley, 2009 WL 3082539, at *3.

We adopt this reasoning.

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Here, the district court's rationale in rejecting Ritchie's argument that Dr. Farr had
violated the Kansas Administrative Regulations is in accord with the Stanley panel's
holding. When it spoke on the relevance of a K.A.R. 102-1-5a violation when
considering whether a person is "professionally qualified" under K.S.A. 59-29a05(d), the
district court opined:

"The bottom line for this court's decision is Dr. Farr did complete a sexual predator
evaluation, she followed the statutes in doing that evaluation and she followed the
diagnostic and statistical manuals for mental disorders and other manuals that are used
within this area. Her determination and decision was based upon the facts of the case and
were not affected by her lack of being a fully licensed psychologist, even if you accept
[Ritchie's] argument. She has the experience in this area and she had a temporary license.
This court will not strike her testimony based upon this alleged lack of experience,
licensing or supervision."

Ritchie acknowledges the ruling in Stanley but makes no effort to distinguish that
case from this one other than to allege Dr. Farr, as a temporarily licensed psychologist,
was professionally unqualified. In his view, because Ritchie was the first sexual predator
evaluation Dr. Farr was assigned and she had "no supervision from Dr. Reid as it pertains
to her sexual predator evaluation of [Ritchie]," she could not render an admissible
opinion.

We are not convinced by Ritchie's argument. Simply put, he has failed to establish
Dr. Reid's supervision of Dr. Farr under K.A.R. 102-1-5a was deficient. Further, Ritchie's
argument regarding Dr. Farr's license status or lack of experience is without merit. Just
because she was working under a temporary license at the time, that does not mean she
was unqualified to do the work. See In re Care & Treatment of Gendron, No. 97,093,
2008 WL 762506, at *1 (Kan. App. 2008) (unpublished opinion); In re Plummer, No.
96,732, 2007 WL 2080465 (Kan. App. 2007) (unpublished opinion).

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Like the facts in Stanley, the record indicates Dr. Farr's thorough forensic
evaluation report and testimony sufficiently assisted the district court in reaching a
reasonable factual conclusion. See State v. Cooperwood, 282 Kan. 572, 578-79, 147 P.3d
125 (2006). Because Ritchie failed to establish the alleged violations of the regulations
and Dr. Farr was professionally qualified according to K.S.A. 59-29a05(d) to evaluate
Ritchie, the district court did not abuse its discretion.

There is ample evidence that Ritchie is a sexually violent predator according to law.

As we address this issue, we must review all of the evidence in the light most
favorable to the State and decide if we are convinced a reasonable factfinder could have
found the State met its burden to demonstrate beyond a reasonable doubt that Ritchie is a
sexually violent predator. In doing so, we do not reweigh the evidence, pass on the
credibility of the witnesses, or resolve any conflicting evidence. In re Care & Treatment
of Williams, 292 Kan. 96, 104, 253 P.3d 327 (2011).

The Kansas Supreme Court has clarified that the State must prove four elements to
identify an individual as a sexually violent predator. The State must prove beyond a
reasonable doubt that the individual

(1) has been convicted of or charged with a sexually violent offense;
(2) suffers from a mental abnormality or personality disorder;
(3) is likely to commit repeat acts of sexual violence because of a mental
abnormality or personality disorder; and
(4) has serious difficulty controlling his or her dangerous behavior. Williams,
292 Kan. at 106.

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Ritchie does not dispute his convictions but does dispute the remaining three
elements. We will address them in order, beginning with his alleged mental abnormality
or personality disorder.

Dr. Farr stated that Ritchie presents Axis I diagnoses of (1) pedophilia, sexually
attracted to females, nonexclusive type; (2) frotteurism; and (3) alcohol dependence,
sustained full remission.

To explain these diagnoses, she testified that Ritchie met the DSM-IV criteria for a
pedophile because Ritchie was at least 16 years of age and admitted to having sexual
relations with children at least 5 years younger; had reoccurring sexual fantasies, urges,
or behaviors involving sexual activity with a child or children generally under the age of
13; and had acted on his sexual urges, causing him interpersonal difficulty. Dr. Farr also
testified Ritchie's diagnosis of pedophilia was supported by his conviction for aggravated
indecent solicitation of a child and Ritchie's own acknowledgments in his autobiography
and written treatment assignments. In the forensic evaluation report, Dr. Farr noted that
"Ritchie admitted to having approximately 32 contact victims and has engaged in
numerous offending behaviors such as frotteurism, fondling, rape, forced fellatio, and
molestation of children and animals. He also admitted to several noncontact victims
while engaging in such behaviors as exposure, peeping, and showing pornography to
children."

Dr. Farr based Ritchie's diagnoses of frotteurism and alcohol dependence on
Ritchie's statements during the clinical interviews.

In her Axis II diagnosis, Dr. Farr found Ritchie has an antisocial personality
disorder, based on his pattern of disregard for and violation of the laws found in his
records. Dr. Farr based her Axis II diagnosis on a review of the record, including the
written treatment assignments completed by Ritchie in which Ritchie admitted to, inter
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alia, repeatedly performing unlawful acts, physical and sexual aggression towards others,
and an inability to sustain employment. Furthermore, the record indicated deceitfulness,
reckless disregard for the safety of himself and others, evidence of the onset of a conduct
disorder before age 15, and a lack of remorse.

We will not reweigh this evidence as Ritchie asks. With this record, viewed in the
light most favorable to the State, a reasonable factfinder could have found that the State
proved beyond a reasonable doubt that Ritchie had a mental abnormality or personality
disorder. See Williams, 292 Kan. at 104. Therefore, the State met its burden on the
second element.

Now, we move on to the third Williams element—whether Ritchie is likely to
commit repeat acts of sexual violence because of a mental abnormality or personality
disorder. Ritchie's witness, Dr. Barnett, gave inconclusive testimony on this point. When
addressing this element at trial, Dr. Barnett testified, "I don't know if [Ritchie] will
reoffend or not. I think he has the ability to control his behavior. Whether he chooses to
or not, I don't know. That's the best I can do with that one."

Notably different, Dr. Farr testified that she concluded that Ritchie met the criteria
of an individual likely to reoffend because of a mental abnormality or personality
disorder. Dr. Farr noted that the fact this was Ritchie's second evaluation under the
Sexually Violent Predator Act supported her finding regarding Ritchie's propensity to
commit acts of sexual violence in the future. Dr. Farr also attributed her conclusion to,
inter alia, her diagnoses regarding Ritchie's different mental abnormalities, Ritchie's
attempts to minimize the details of his past aggressive behaviors, the number of times
Ritchie had been charged previously with crimes against children, and Ritchie's
admissions to having engaged in numerous sexually aggressive behaviors and a long-
standing pattern of rape fantasies.

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Dr. Farr's basis for her opinion also included actuarial testing analysis. Ritchie's
score of 6 on the Static-99R placed his risk of recidivism in the "high-risk" range, and his
score of 7 on the Static-2002R indicated a "moderate-high risk" range. Dr. Farr also
opined that the actuarial instruments underestimate an individual's lifetime sexual
recidivism potential because the measures only cover a 10-year period.

Ritchie's argument on this point is unpersuasive. In response to the actuarial tests,
he simply cites In re Care & Treatment of Girard, 296 Kan. 372, 294 P.3d 236 (2013),
and makes the following single sentence argument: "[T]he Frye test applies to actuarial
risk assessments." He also points to Dr. Barnett's testimony regarding the lack of
reliability of using the Static-99R and Static-2002R tests.

Basically, his argument is legally insignificant. Neither Dr. Farr nor the district
court placed undue weight on the test scores. In fact, Dr. Farr testified that she
specifically reached her conclusion regarding the third Williams element based on all of
the factors "as a whole—not just looking at the actuarials by themselves or the diagnoses
by themselves." See Williams, 292 Kan. at 111. Williams found that "other evidence
could convince a rational factfinder that the State has met its burden beyond a reasonable
doubt, especially when . . . both experts based their opinions on factors other than the
[actuarial] tests." 292 Kan. at 111. Further, the record here indicates the district court
placed little or no weight on the actuarial scores and found Ritchie was likely to reoffend
because of the nature of Ritchie's diagnoses and his 20- to 25-year history "of recurring
issues, contact and criminal convictions of sexual deviant behavior with minors."

Without reweighing the experts' testimony, the facts on which Dr. Farr based her
opinion, when viewed in the light most favorable to the State, presented sufficient
evidence to establish the third element—that Ritchie is likely to reoffend.

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The chief dispute between the parties relates to the fourth Williams element—
whether Ritchie has serious difficulty controlling his dangerous behavior. Both Dr. Farr
and Dr. Kohrs diagnosed Ritchie with the mental abnormality of pedophilia. The DSM-
IV describes pedophilia as "a mental abnormality that critically involves what a lay
person might describe as a lack of control." In re Care & Treatment of Palmer, 46 Kan.
App. 2d 805, 816, 265 P.3d 565 (2011), rev. denied 296 Kan. 1130 (2013).

The experts for each side offered contrary opinions about this element. Dr. Kohrs
testified that Ritchie's diagnoses of pedophilia and frotteurism, in conjunction with his
history of acting on his fantasies, made it difficult for him to control his volitional
behavior. Dr. Kohrs opined:

"I think his fantasies are so intense and his behaviors are so elevated and—just in terms
of the choking that was involved with at least three persons from his victim sheets . . .
that his brain is so conditioned to these fantasies and sexual deviancies that it will be very
hard for him to control this in a community setting."

Similarly, Dr. Farr testified that Ritchie poses a risk to others because based on
Ritchie's history of not being able to control his behavior in the past, he would have
difficulty controlling it in the future.

To the contrary, Dr. Barnett testified, "I don't think [Ritchie] has serious difficulty
controlling [his behavior]."

The district court acknowledged that the experts disputed this element and that the
State had conceded Ritchie does have some level of control in a structured environment
such as in prison or while on postrelease supervision, but found Ritchie's "horrible" past
behaviors dispositive. The district court noted:

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"The evidence continued to show [Richie] was unable in an unstructured environment to
control himself from having sexual urges and/or fantasies and then acting out upon those
urges and fantasies to the dangerousness for the victims he was convicted of harming and
dangerousness of those he reported but he was not caught."

When we view this evidence in the light most favorable to the State, we conclude
there was sufficient evidence to allow a rational factfinder to find beyond a reasonable
doubt that Ritchie had serious difficulty controlling his dangerous behavior.

Our review of the record on appeal leads us to hold there is sufficient evidence for
a reasonable factfinder to find that Ritchie is a sexually violent predator.

The Act is constitutional.

In his final argument, Ritchie summarily asks us to find that the 2011 amendment
to the Kansas Sexually Violent Predator Act is unconstitutional because it violates his
"due process rights, his rights [sic] to confrontation and all other procedural safeguard
[sic] provided for by the Kansas Supreme Court and the Rules of Evidence." Ritchie fails
to even explain how this change in the law adversely affected his rights.

Indeed, with the enactment of K.S.A. 2011 Supp. 59-29a06(c), the legislature
created an exception to K.S.A. 60-456(b), the general statute dealing with the
admissibility of expert opinions. It now does not apply to the facts or data reasonably
relied upon by an expert in forming opinions or inferences in actions under the Kansas
Sexually Violent Predator Act.

The Act is a self-contained statutory scheme that, despite possessing many
characteristics of a criminal proceeding, is a civil proceeding. In re Palmer, 46 Kan. App.
2d at 810. Therefore, the right of confrontation found in the Sixth Amendment to the
United States Constitution and § 10 of the Kansas Constitution Bill of Rights concern
19

criminal prosecutions and do not apply in civil commitment proceedings. See Kansas v.
Hendricks, 521 U.S. 346, 371, 117 S. Ct. 2072, 138 L. Ed 2d 501 (1997); In re Patterson,
No. 107,232, 2013 WL 2395313, at *18 (Kan. App. 2013) (unpublished opinion).

Nothing in Ritchie's conclusory argument overcomes the presumption of validity
that appellate courts apply when considering the constitutionality of a statute. See State v.
Gaona, 293 Kan. 930, 958, 270 P.3d 1165 (2012).

Affirmed.

1
REPORTER'S NOTE: Previously filed as an unpublished opinion, the Supreme Court
granted a motion to publish pursuant to Rule 7.04 (2013 Kan. Ct. R. Annot. 59). The
published version was filed with the Clerk of the Appellate Courts on September 15, 2014.