In re Care & Treatment of Clark

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NOT DESIGNATED FOR PUBLICATION

No. 117,598

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Matter of the Care and Treatment of
ANTHONY CLARK.


MEMORANDUM OPINION

Appeal from Wyandotte District Court; ROBERT P. BURNS, judge. Opinion filed December 8,
2017. Reversed and remanded with directions.

Christopher Cuevas, of Kansas City, for appellant.

Dwight R. Carswell, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before PIERRON, P.J., ATCHESON, J., and WALKER, S.J.

PER CURIAM: Anthony Clark, previously adjudicated as a sexually violent
predator (SVP), appeals the district court's ruling that probable cause did not exist to find
his condition to be so changed that he would be safe to place on transitional relief. Clark
argues that, when viewed in a light most favorable to him, there was sufficient evidence
to find that probable cause existed. After reviewing the record, we agree with Clark and
therefore reverse the district court's ruling and remand for further hearing.

Clark incidentally raises an admissibility of the evidence argument, but we find
that issue has not been properly preserved for appeal and, in any event, is not
determinative to the outcome of this appeal.


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FACTS

Between 1976 and 1991 Clark was convicted of at least four sexual crimes against
children. Clark also admitted to sexually touching a 2 1/2-year-old girl in 1985, but no
arrest or conviction occurred as a result of that incident.

In 2002, as Clark was nearing release from prison, the State petitioned for Clark to
be deemed an SVP under the Sexually Violent Predator Act, K.S.A. 59-29a01 et seq. The
court found that Clark qualified as an SVP, and he was civilly committed to the Sexual
Predator Treatment Program (SPTP).

The SPTP utilized a tiered phase system to determine how a resident was
progressing with treatment. At some point Clark reached Phase Five, which focused on
readying residents for transitional release. As part of Phase Five, Clark was required to
undergo polygraph examinations. In 2009 and 2010, Clark had poor results on his
polygraph test and was moved back to Phase Four. In 2010 and 2011, Clark again had
poor results on his polygraph tests, as well as boundary violations with staff, and he was
once again moved back, this time to Phase Three. Clark remained in Phase Three until
the SPTP changed their categorization system in late 2016. After the change, Clark was
placed in Tier One, Skill Acquisition.

As part of his commitment, Clark received annual examinations of his mental
condition as required by K.S.A. 2015 Supp. 59-29a08. After Clark's 2015 annual review,
the district court signed an order concluding that Clark remained an SVP. Clark filed a
motion requesting the court to alter or amend its judgment. The State requested a hearing
on Clark's 2015 annual review.

In March 2017 the district court held a hearing to determine whether there was
probable cause to believe Clark had so changed that he would be safe for transitional
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release. At the hearing Clark's former therapist, Keri Applequist, who had authored
Clark's 2015 annual review, testified that Clark was not safe for transitional release.
During her testimony, Applequist explained that in 2009 Clark took a polygraph to
determine if what he was reporting regarding his sexual fantasies and behavior was
accurate. Clark's polygraph results led to his community outings being suspended due to
public safety concerns. From that point, Clark's progress began to revert, he continued to
provide poor polygraph results, and was not actively participating in group sessions.

Applequist also explained that she had attempted to modify the polygraph
procedure for Clark in December 2016; instead of testing for the whole time back to the
last passing polygraph, they would only test for the last period. As of March 2017 Clark
had not elected to take another polygraph under the modified procedure. Ultimately,
Applequist believed that if Clark was granted transitional release he would not be
successful and that doing so "would be setting him up for failure."

The State also called Dr. Austin DesLauriers, supervising psychologist with the
SPTP, to testify. Dr. DesLauriers testified that Clark was originally diagnosed with
"[p]edophilia, sexually attracted to female (nonexclusive type) and antisocial personality
disorder." Dr. DesLauriers authored Clark's most recent annual review, which was
completed in 2016, and found that Clark still suffered from pedophilia and antisocial
personality disorder. Dr. DesLauriers testified that he used two risk assessments to
evaluate the safety of placing Clark on transitional release. Dr. DesLauriers testified that
risk assessors were better predictors than clinical judgment to predict future behavior. On
the Static-99 Revised test, Clark's 2016 score placed him within the high risk category,
meaning that he was at a high risk of recidivism. On the Sex Offender Treatment
Intervention and Progress Scale Clark's 2016 score placed him in the "'Low Needs'"
category, which suggested Clark had "'Considerable Need for Improvement'" in the
sexual interests area. His combined 2016 score placed Clark in a moderate to high risk
category. Clark's 2015 scores placed him in the same category. Ultimately, Dr.
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DesLauriers did not believe that Clark's mental abnormality or personality disorder had
changed so that he could be safely placed in transitional release.

Dr. Stanley Mintz performed an independent evaluation of Clark to assess whether
Clark was appropriate for transitional release. Dr. Mintz reviewed a 2001 clinical service
report, a disciplinary total assessment, a 2002 court evaluation, and annual reports for
2013, 2014, and 2015 to prepare his evaluation. Dr. Mintz also skimmed the 2016 annual
report before the hearing. Dr. Mintz testified that he believed Clark had a low potential to
engage in further acts of sexual violence. Dr. Mintz also stated that Clark had been
through several sex offender treatment programs and he had previously progressed
through several of the phases of SPTP.

Dr. Mintz testified that he did not use any risk assessments in his evaluation. He
stated that he did not believe strongly in risk assessments. Instead, Dr. Mintz relied on his
45 years of clinical experience. He utilized some generalized tests to determine that Clark
had average to high intelligence, mild visual spatial cognitive impairment, and no major
neurotic or psychotic patterns. Dr. Mintz also used the HARE Psychopathy Checklist to
measure Clark's antisocial attitudes and functioning, including criminal acting out. Clark
scored low on the checklist, which suggested there was not a significant and current
general pattern of psychopathology. Dr. Mintz' report indicated that he did not view Clark
as having an antisocial personality disorder. Dr. Mintz' report also stated that he did not
view Clark as exhibiting symptoms of pedophilia at that time.

During Dr. Mintz' testimony, there was some confusion regarding what he was
recommending for Clark. In his report Dr. Mintz ultimately recommended that Clark be
placed on transitional release. However, Dr. Mintz testified that Clark should be in Phase
Five at a minimum, and considered for Phase Six. Neither Phase included transitional
release. When questioned by the State about this discrepancy, Dr. Mintz stated, "I
presume phase 6 is what used to be transitional release. . . . I'm not recommending that he
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jump any phases, but that perhaps go to one phase above where he was when he was at
his highest phase of Larned State Hospital."

The district court found that probable cause did not exist to believe that Clark's
mental abnormality or personality disorder had significantly changed so that he would be
safe to be placed in transitional release. Clark timely appealed the district court's
decision.

ANALYSIS

Polygraph evidence

As a preliminary matter, Clark argues that Applequist's testimony regarding the
polygraphs should have been excluded as inadmissible. The parties bundle this into their
main arguments but we will address it here separately.

Clark, relying on In re Care & Treatment of Foster, 280 Kan. 845, 862-63, 127
P.3d 277 (2006), contends that the polygraph results and opinions based on the results are
inadmissible as evidence. The State argues primarily that Clark failed to object to
Applequist's testimony below and did not explain why he should be able to raise the issue
for the first time on appeal. The State urges this court to decline to hear the issue.

Alternatively, the State argues that Foster does not bar the admission of testimony
regarding polygraphs because of a 2011 amendment to K.S.A. 59-29a06(c). This court
has addressed K.S.A. 59-29a06(c) in a similar context, holding that "if the district court
looks to [the] evidence as substantive rather than as a basis to evaluate the expert's
opinion, it errs." In re Norris, No. 110,364, 2014 WL 6909650, at *4 (Kan. App. 2014)
(unpublished opinion) (addressing in the context of inadmissible hearsay).

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The State is correct in contending that Clark did not object to Applequist's
testimony and did not argue why they should be able to raise the issue for the first time
on appeal. Because of these critical omissions, we decline to address the issue. Wolfe
Electric, Inc. v. Duckworth, 293 Kan. 375, 403, 266 P.3d 516 (2011); Kansas Supreme
Court Rule 6.02(a)(5) (2017 Kan. S. Ct. R. 34.) In passing, however, we note that even if
the polygraph evidence was inadmissible it would not change the outcome of this appeal.

District court's ruling on probable cause

Clark's primary contention on appeal is that the district court erred when it found
no probable cause to believe that his condition had changed sufficiently to permit his safe
transfer to transitional release.

When a petitioner committed to the SVP program demands a hearing on his or her
annual review, he or she "bears the burden to establish probable cause at an annual
review hearing." Thus, the district court must "consider the evidence in the light most
favorable to the committed person and resolve all conflicting evidence in that person's
favor." In re Care & Treatment of Burch, 296 Kan. 215, 225, 291 P.3d 78 (2012) (citing
In re Care & Treatment of Sipe, 44 Kan. App. 2d 584, 592, 239 P.3d 871 [2010]). In
making its ruling, the district court must determine whether there is sufficient evidence to
cause a person of ordinary prudence and action to conscientiously entertain a reasonable
belief that the committed person's mental abnormality or personality disorder has so
changed that the person is safe to be placed in transitional release. This court makes the
determination de novo. In re Care & Treatment of Sipe, 44 Kan. App. 2d at 592-93.

The evidence presented at the hearing primarily focused on the annual reports, Dr.
Mintz' evaluation, and testimony from Applequist, Dr. DesLauriers, and Dr. Mintz. Dr.
Mintz was able to review previous annual reports, excluding the 2016 report, while
making his evaluation. While Dr. Mintz' testimony may have reflected some confusion in
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his understanding of SPTP treatment levels, when viewed in a light most favorable to
Clark, Dr. Mintz' clear recommendation was that Clark was ready for transitional release.

The State relies on testimony from Applequist and Dr. DesLauriers to show that
Clark is not ready for transitional release. Both testified that Clark was not ready for
transitional release. The State also relies on the risk assessments that Dr. DesLauriers
used to measure Clark's recidivism risk. However, Dr. Mintz addressed the issues of risk
assessments in his testimony saying that he did not believe strongly in risk assessments.
In his report, Dr. Mintz stated that Clark was a low risk to engage in repeated acts of
sexual violence. Further, Dr. Mintz did not view Clark as a threat to the community at
that time.

Part of the State's argument relies on discrediting Dr. Mintz' review of Clark's
progress through programs that occurred before Clark entered the SPTP. The State argues
that Clark's participation in programs before he entered the SPTP cannot be used because
it is not evidence that his condition has "'so changed that [he] is safe to be placed on
transitional release.'" The State's argument may have merit given the language of K.S.A.
2016 Supp. 59-29a08(c). But in the end we find the State's argument to be unpersuasive
because Dr. Mintz reviewed annual reports that occurred after Clark entered the SPTP.
When viewed in a light most favorable to Clark, Dr. Mintz' review of the annual reports
could have been sufficient for Dr. Mintz' recommendation.

Our court addressed similar issues in In re Care & Treatment of Sipe. Sipe was a
committed SVP who was seeking transitional release after one of his annual reviews. The
court appointed an independent evaluator who indicated that Sipe had no significant
psychological disorder and that he was at a medium risk of reoffending, ultimately
recommending that he be transferred to transitional release. This court found that, when
viewing the evidence in a light most favorable to Sipe, the independent evaluation stating
that Sipe had no significant psychological disorder and placing him at a medium risk
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level was enough to meet the probable cause standard. Accordingly, this court remanded
the case to district court with instructions to conduct an evidentiary hearing. 44 Kan.
App. 2d at 594.

When compared to In re Care & Treatment of Sipe, the evidence in this case
suggesting that probable cause existed is stronger for Clark than it was for Sipe. Here, Dr.
Mintz found that Clark was at a low risk to engage in further sexual violence and that he
was not a danger to the community at that time. Further, Dr. Mintz found that Clark did
not suffer from antisocial personality disorder or exhibit symptoms of pedophilia at that
time. When viewing the record as a whole in a light most favorable to Clark, there was
probable cause to believe his condition had so changed that he was safe to be placed in
transitional release.

It is important to note here that a finding of probable cause does not entitle Clark
to transitional release under the statute. Instead, the district court must conduct an
evidentiary hearing on the issue of whether transitional release is appropriate. At the
evidentiary hearing, the State must "prove beyond a reasonable doubt that the committed
person's mental abnormality or personality disorder remains such that the person is not
safe to be placed in transitional release and if transitionally released is likely to engage in
repeat acts of sexual violence." K.S.A. 2016 Supp. 59-29a08(c).

In summary, we hold the district court erred in finding that there was not probable
cause to believe Clark's mental abnormality or personality disorder had significantly
changed so that he was safe to be placed in transitional release. When viewing the record
as a whole and resolving conflicting evidence in Clark's favor, there is sufficient evidence
to show that his abnormality or disorder had significantly changed.

Reversed and remanded with directions to conduct an evidentiary hearing pursuant
to K.S.A. 2016 Supp. 59-29a08(c).