In re Care & Treatment of Downey

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NOT DESIGNATED FOR PUBLICATION

No. 116,707

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Matter of the Care and Treatment of

HERBERT DOWNEY.


MEMORANDUM OPINION

Appeal from Reno District Court; PATRICIA MACKE DICK, judge. Opinion filed July 21, 2017.
Affirmed.

Shannon S. Crane, of Hutchinson, for appellant.

Bryan C. Clark, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

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

Per Curiam: Claiming insufficient trial evidence, Herbert Downey appeals his
involuntary commitment as a sexually violent predator. While we cannot legally reweigh
the evidence, our review of the record compels us to hold that the State proved beyond a
reasonable doubt that Downey is a sexually violent predator, subject to involuntary
commitment.

To classify a person as a sexually violent predator under the Sexually Violent
Predator Act, the State must prove four elements:

 the individual has been convicted or charged with a sexually violent
offense;
 the individual suffers from a mental abnormality or personality disorder;
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 the individual is likely to commit repeat acts of sexual violence because of
a mental abnormality or personality disorder, and
 the individual has serious difficulty controlling his or her dangerous
behavior. See K.S.A. 2016 Supp. 59-29a02(a); In re Care & Treatment of
Williams, 292 Kan. 96, 106, 253 P.3d 327 (2011).

Proof must be beyond a reasonable doubt. See K.S.A. 2016 Supp. 59-29a07(a).

Downey does not challenge the first two elements of the statutory requirements.
Instead, he challenges whether there was sufficient evidence to show that he is likely to
commit repeat acts of sexual violence due to his mental abnormality, and whether it was
shown that he has serious difficulty controlling his dangerous behavior.

In our review of the record, we will first give some general background
information to provide a context and then proceed in greater detail when we consider the
two elements Downey contests.

We look first at his criminal case. Based upon fact stipulations, the trial court
found Downey guilty of rape and sodomy of a 2-year-old girl. See State v. Downey, 27
Kan. App. 2d 350, 351-57, 2 P.3d 191 (2000). The court imposed a long prison sentence.
Prior to his Kansas crimes, Downey was convicted of sexual abuse in New York after
rubbing his 5-year-old niece's hand on his penis. Toward the end of his prison sentence,
the State sought Downey's commitment as a sexually violent predator. That commitment
is the subject of this appeal.

Without going into great detail, we note that this commitment case has been
through several levels of litigation and now returns to us after a panel of this court
remanded Downey's commitment for a new trial. See In re Care & Treatment of Downey,
No. 110,474, 2015 WL 249704, at *8 (Kan. App. 2015) (unpublished opinion), rev.
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denied 301 Kan. 1046 (2015). Back once again at the district court at a new bench trial,
Downey and three experts gave testimony: Dr. Stephanie Adam, Dr. Jane Kohrs, and Dr.
Jarrod Steffan. We will review their testimony in that order.

We summarize Downey's testimony.

Downey denied raping and sodomizing the 2-year-old; however, he acknowledged
that he was convicted in Kansas of that crime.

In a prior statement to the police, Downey stated that the 2-year-old had seen him
masturbating and he let her stroke his penis one or two times. Downey's statement also
noted that at a later date the 2-year-old asked to see Downey's penis and he allowed her to
stroke it four or five times. Further, Downey took photos of the 2-year-old that included
pictures with his penis in her mouth.

Downey has also been involved in two other sexual acts with children. First,
Downey was convicted in New York of an offense where he used a sleeping 5-year-old's
hand to touch his penis through his underwear. For this crime, he was sentenced to a
prison term but was granted 5 years of probation. While on probation for the above
offense, Downey was accused of inappropriately touching his 9-year-old daughter when
he was visiting her in Ohio. Downey stated that he touched his daughter but it was not
done in a sexual way.

Downey told the court that he had not masturbated for over a year while he was in
jail. Additionally, Downey stated that his use of drugs and alcohol lowered his sexual
inhibitions. Then, Downey stated that he has made a conscious decision not to use drugs
or alcohol, even though they are available to him while he is in prison.

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Downey wrote a letter to his 2-year-old victim, but it was only a therapeutic
exercise and it was never sent to her. Downey also wrote a letter to the 5-year-old victim,
but he threw it away.

Next we summarize Dr. Stephanie Adam's testimony.

Dr. Adam, a clinical psychologist, evaluated Downey at Larned State Security
Hospital in 2013. She conducted two interviews with Downey and administered four
psychological tests.

Dr. Adam began her testimony by discussing Downey's sexual history. Downey
told Dr. Adam that he was sexually abused by a babysitter from the ages of 3 until he was
9. Additionally, Downey was sexually exploited by males who gave him rides when he
was hitchhiking as a teenager.

While Downey was an adolescent, he had a paper route and would go into houses
to use their bathrooms. While there, he would masturbate and then eventually began
smelling the women's soiled underwear while masturbating.

Downey was not able to answer the question of how many sexual partners he had
because while serving in the military in the Philippines he solicited many prostitutes. Dr.
Adam also knew of Downey's molestation of prepubescent children. Downey also had a
dog lick his penis, and he ejaculated onto the dog's snout. Based upon this sexual history,
Dr. Adam believed Downey had a deeply engrained sexual impulse that he did not seem
to have the ability to control. This impulse increases the likelihood of Downey
committing additional sexual offenses.

Based upon her interactions with him, Downey was "charming, humble, almost
self-effacing at times and helpful." But these good displays concerned her because a
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person would not make the connection between his past and the helpful person that he
exhibited. Dr. Adam believed that this increased his risk to engage again in sexually
violent behaviors.

Dr. Adam diagnosed Downey with various mental abnormalities or personality
disorders including: pedophilia—sexually attracted to females, nonexclusive type—
polysubstance dependence, fetishism, and antisocial personality disorder. Downey's
pedophilia diagnosis is based on his convictions and his admissions of fantasizing about
children while masturbating.

Downey's diagnosis of polysubstance dependence was based upon his prior drug
and alcohol use. The diagnosis did take into account that Downey had stopped using
drugs and alcohol while in the controlled environment of prison. Dr. Adam stated the
polysubstance abuse disorder increases the risk of committing sexual offenses in the
future. Although Dr. Adam knew Downey had stopped using drugs and alcohol in prison,
she was concerned with his lack of a support system outside of the controlled
environment. In Dr. Adam's opinion, it is important for a person in Downey's position to
have a good support system because in order to maintain sobriety, a person must plan for
the relapse.

Downey's fetishism diagnosis was based upon his repeated feeling and smelling
women's underwear and using that to masturbate. Dr. Adam believed this mental
abnormality increased Downey's likelihood to reoffend because it seemed to be
compulsive.

Dr. Adam went on to state that people with antisocial personality disorder do not
abide by the rules of a social contract. People with this diagnosis are not remorseful but
are "impulsive, deceitful, conning, [and] manipulative . . . ." In relying on research, Dr.
Adam stated that antisocial personality disorder is engrained and very hard to treat.
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Additionally, a person with this disorder does not change when reaching adulthood; their
activities may decrease as they get older, but the overall mindset does not change.

Dr. Adam concluded that Downey was a menace to the health and safety of
society and was likely to engage in repeat acts of sexual violence. This conclusion was
based in part upon her diagnoses as well as Downey committing additional sexual
offenses while on probation for his assault on the 5-year-old.

Dr. Adam also analyzed Downey's likelihood to reoffend by using two actuarial
tests—Static-99R and Static-2002R. The two tests differ in that the Static-2002R contains
additional questions relating to previous offenses and probation and parole violations.
Downey scored a one on the Static-99R, which places him in the low risk to reoffend
category. On the Static-99R, 11.5 percent of offenders in the low risk category committed
new offenses within 10 years of being released into the community. In comparison, 15.7
percent of offenders in the high-risk category on this test reoffended within the same
period.

On the Static-2002R test, Downey scored a five, placing him in the moderate risk
category. The recidivism rate for offenders in the moderate risk category on the Static-
2002R is 25.1 percent. In comparison, the high-risk category had a recidivism rate of 28.4
percent.

In Dr. Adam's view, the Static test assessments underestimate the risk of
recidivism. In discussing the shortcomings of the actuarial tests, Dr. Adam stated the tests
are limited because they do not take a cumulative look at the person. Dr. Adam testified
that it would fall below the standard of practice required for psychologists if one only
used the actuarial test in determining the likelihood of recidivism.

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In an interview with Dr. Adam, Downey did not acknowledge that he had raped
the 2-year-old victim. According to Dr. Adam, Downey's failure to fully acknowledge
this event shows Downey has not taken the first step to changing his behavior. Downey's
statements concerning his actions with his 9-year-old daughter was, in Dr. Adam's view,
clearly a denial. These denials increased Downey's risk of committing sexually violent
acts in the future.

Dr. Adam also believed that Downey had serious difficulties controlling his
behaviors. The problematic behaviors that Dr. Adam identified were sexual aggression
towards children, alcohol and drug abuse, and his use of pornography. Dr. Adam also
discussed how Downey's fetishism and use of pornography seemed to be compulsive
which made it difficult for him to control his behaviors. While Downey had abstained
from alcohol and drugs while in prison, the lack of a support system outside of prison
concerned Dr. Adam.

In Dr. Adam's judgement and based upon her review of the available reports,
interviews, and actuarial tests, Downey was likely to commit repeat acts of sexual
violence.

Here is the summary of Dr. Jane Kohrs' testimony.

Dr. Jane Kohrs, a forensic psychologist with Correct Care Solutions, a contractor
for the Department of Corrections, evaluated Downey in September 2012. She used
various types of records, interviews, and the Static-99R to form her diagnosis. She stated
that the policy in Kansas is to consider the actuarial tools in the context of all other
information.

Dr. Kohrs was concerned about Downey's history of working at a carnival. The
transient nature of Downey's past work allowed him to move to a new place when a
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sexual offense charge was pending, making it easier to avoid responsibility for his
actions. Additionally, the instability of the work increased the risk of reoffending.

She believed Downey was still in denial about the vaginal and anal injuries he
caused his 2-year-old victim. This denial increased his risk for recidivism. In the
interview with Downey, he denied causing the vaginal and anal injuries. Initially Downey
accused the victim's grandfather of causing the injuries. Downey also stated that the
victim's injuries might have been caused by falling on a milk crate.

Overall, Dr. Kohrs observed that Downey did not show empathy or concern for his
victims' injuries, but rather gave a general nonintrospective response concerning how his
actions affected their lives. She thought this response showed a detachment from the
experiences of his victims, and would like to see a healthier response before a person is
released into the public.

The doctor diagnosed Downey with pedophilia—nonexclusive type, attracted to
females—fetishism, dysthymic disorder, and a personality disorder with paranoid traits.
Dr. Kohrs also included Downey's substance abuse problems in her reports. She gave the
same reasons for the diagnoses of pedophilia and fetishism as Dr. Adam. Dysthymic
disorder is a low-level depression that was diagnosed while Downey was incarcerated.

Explaining her diagnosis of personality disorder with paranoid traits, Dr. Kohrs
observed that Downey was suspicious of others, unwilling to confide, distant, and
evasive. Dr. Kohrs based her assessment on personal contacts and reports. Specifically in
the interview with Dr. Kohrs, Downey was very open when discussing his fetishism, but
he avoided the conversation as it pertained to the rape and aggravated sodomy of the 2-
year-old. This avoidance was a part of the basis for Dr. Kohrs concluding that Downey
was likely to engage in sexually violent acts in the future.

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Downey informed Dr. Kohrs that he had engaged in sexual relations with
prostitutes two to three times per day while stationed overseas in the military. The sexual
relations may have involved underage, pubescent females, but Downey was not sure.
These sexual relations caused concern in Dr. Kohrs because it could become a source of
fantasy or interest.

Dr. Kohrs believed that Downey was likely to commit future acts based upon his
mental abnormalities and personality disorder. Downey has two paraphilic disorders—
pedophilia and fetishism. Having two paraphilic disorders increases the risk of
recidivism. When considering Downey's personality disorder in combination with the two
paraphilic disorders, she testified their combination increases Downey's risk of
reoffending.

The doctor acknowledged that Downey scored a one on the Static-99R, but despite
that score, she believed that it was likely he would commit repeated acts of sexual
violence. In reaching that conclusion, Dr. Kohrs relied upon various actions by Downey
including: absconding and committing a new offense while on probation, noncompliance
with supervision, intimacy deficits from having continual infidelities while married,
instability in employment, the potential for substance abuse, and his history of sexual
preoccupation and hypersexuality.

She also believed that Downey was resisting the cognitive behavioral sexual
treatment program because he claimed to have already internalized the changes he
thought were necessary. To Dr. Kohrs, this showed that Downey had a closed mind to the
treatment and increased his risk of reoffending.

In her opinion, based upon her interview and reports, Downey has significant
difficulty controlling his dangerous behaviors. Downey's dangerous behaviors are his
sexual feelings, urges, and behaviors towards underage girls. Downey's prior use of
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alcohol, pornography, and masturbation increases his risk in engaging in future sexually
violent behaviors. Ultimately, Dr. Kohrs concluded that Downey satisfied the
requirements for being a sexually violent predator.

Dr. Jarrod Steffan testified for Downey.

The record does not include Dr. Steffan's credentials. Dr. Steffan administered the
Static-99R to Downey, but not the Static-2002R test. In his view, because the Static-
2002R is newer and does not analyze samples of sex offenders from the United States, it
is less valuable in assessing potential for recidivism compared to the Static-99R.

Dr. Steffan addressed why it is important to rely upon the factors in the Static-99R
and exclude other clinical diagnoses for analyzing recidivism. In his view, the use of
additional factors and clinical diagnoses does not increase the accuracy of determining
likelihood for recidivism. Dr. Steffan concluded a more accurate assessment is given if
you rely solely on the actuarial tests and not use any individual judgment.

Although Dr. Steffan concluded that Downey might have conditions that would
qualify as a mental abnormality, he testified that Downey does not satisfy the statutory
criteria as a sexually violent predator. While he agreed with the diagnoses of antisocial
personality disorder, pedophilia, and fetishism, Downey's risk of recidivism was not
increased compared to other sexual offenders.

The Static-99R was the only factor Dr. Steffan used in determining the likelihood
of recidivism. Conversely, Dr. Steffan agreed with the State's assertion that having more
than one paraphilic disorder increases the risk of recidivism. Dr. Steffan stated that others
in the field would take exception to his opinions regarding the use of the Static-99R as
the only tool in assessing the likelihood of recidivism.

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In rebuttal, Dr. Adam stated that using only a Static test to assess recidivism is
controversial. The research that supports the view that the Static test should be the only
test used was funded by the company that produces the Static test. Additionally, Dr.
Adam did not believe that the Static tests have been sufficiently peer reviewed to use
them to the exclusion of other factors including clinical judgements. An additional
problem with using the Static-99R is that the test only assesses actual charges or
convictions, but not probation or parole violations, or self-reported acts of sexual
violence.

There is sufficient evidence here to support the court's finding.

Downey argues on appeal that the district court had insufficient evidence to reach
its conclusion that he is a sexually violent predator under the Act. In reviewing a claim on
sufficiency of evidence under the Act, we must determine if the evidence, viewed in the
light most favorable to the State, could lead a reasonable factfinder to the conclusion that
the State demonstrated beyond a reasonable doubt that the individual is a sexually violent
predator. Williams, 292 Kan. at 104. In determining the sufficiency of the evidence, this
court does not reweigh the evidence or assess the credibility of witnesses. In re Care &
Treatment of Ward, 35 Kan. App. 2d 356, 371, 131 P.3d 540 (2006).

Basically, Downey relies on the fact that he scored in the low risk to reoffend
category on the Static-99R to show the court erred in concluding that he presented an
elevated risk of reoffending. He ignores the fact that Dr. Adam administered the Static-
2002R and that test placed him in the moderate risk to reoffend category. Furthermore, a
low score on an actuarial exam is not dispositive, and the State can meet its burden
through presenting other evidence—such as clinical judgments. Williams, 292 Kan. at
111; see In re Care & Treatment of Ritchie, 50 Kan. App. 2d 698, 710-11, 334 P.3d 890
(2014).

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We need not repeat all of the previous details we gleaned from the doctors'
testimony. But clearly, the State presented sufficient evidence through the testimony of
Drs. Adam and Kohrs that Downey had an elevated risk of recidivism.

We also note the even Dr. Steffan agreed that having a diagnosis of multiple
paraphilic disorders is linked with higher rates of recidivism. Dr. Kohrs also stated that
Downey's seemingly closed mind toward treatment elevated the likelihood that he would
reoffend.

When we view this evidence in the light most favorable to the State, we must hold
that a reasonable factfinder would conclude beyond a reasonable doubt that Downey is
likely to commit repeat acts of sexual violence based upon his mental abnormalities or
personality disorder. The district court had sufficient evidence to reach its conclusion on
this element.

When we consider the second element of the statute that Downey contests, he
contends there was insufficient evidence to support the conclusion that he cannot control
his behaviors. He argues this was not proven because he has not received excessive
disciplinary reports while in prison and he has abstained from drugs and alcohol while in
prison even though they are available to him.

Again, without repeating all of the details, both Drs. Adam and Kohrs testified that
Downey has serious difficulties controlling his behavior. Downey's pedophilia and
fetishism are compulsive. In Dr. Kohrs' view, his fetish was a deeply engrained habit
making it difficult to control.

Additionally, Downey's own expert, Dr. Steffan, was not firm in his opinion on
whether Downey would have difficulty controlling his behaviors. He observed that
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Downey was unable to control his behaviors prior to going to prison, but while
incarcerated Downey was able to control himself.

Viewing the evidence in the light most favorable to the State, a reasonable
factfinder could reach the conclusion beyond a reasonable doubt that Downey has serious
difficulties controlling his behaviors, even though he has shown some control of his
behaviors in a controlled environment.

We reiterate. Upon appellate review, we will not reweigh the evidence balancing
the weight of one doctor's testimony against another. That is the task of the factfinder.
From our review, clearly, the district court had sufficient evidence on both elements of
the statute that were contested by Downey to conclude that he was a sexually violent
predator as defined in the Act.

Affirmed.