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113882

In re Care & Treatment of Harmon

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  • Status Unpublished
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  • Court Court of Appeals
  • PDF 113882
NOT DESIGNATED FOR PUBLICATION

No. 113,882

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Matter of the Care
and Treatment of
RICHARD ALLEN HARMON.


MEMORANDUM OPINION

Appeal from Cowley District Court; LADONNA L. LANNING, judge. Opinion filed November 13,
2015. Affirmed.

Ian T. Otte, of Herlocker, Roberts & Herlocker, L.L.C., of Winfield, for appellant.

Christopher E. Smith, county attorney, and Derek Schmidt, attorney general, for appellee.

Before POWELL, P.J., PIERRON and LEBEN, JJ.

Per Curiam: Richard Allen Harmon was convicted of one count of indecent
liberties with a child in 1989 and two counts of aggravated indecent liberties with a child
in 2005. The victims in these cases were Harmon's daughter and two granddaughters.

In February 2014, the State filed a petition requesting that Harmon be civilly
committed as a sexually violent predator according to the standards set forth in K.S.A.
59-29a01 et seq. Dr. Angelina Johnson, at Larned State Hospital, evaluated Harmon and
determined that he met the sexually-violent-predator criteria. At trial, the only two
witnesses were Dr. Johnson for the State and Harmon for the defense. The district court
found Dr. Johnson credible and found that the State had proved beyond a reasonable
doubt that Harmon was a sexually violent predator.
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Harmon argues on appeal that evidence wasn't sufficient to support his civil
commitment; Harmon points out that Dr. Johnson made some errors in her evaluation that
undermined her credibility. But appellate courts do not make credibility determinations,
and even with some errors in her analysis, Dr. Johnson's testimony still provided a
sufficient basis for the district court's judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Harmon was convicted of one count of indecent liberties with a child in 1989 and
two counts of aggravated indecent liberties with a child in 2005. The victims in these
cases were Harmon's daughter in 1989 and two granddaughters in 2005. In February
2014, near the end of Harmon's sentence for the 2005 convictions, the State filed a
petition requesting that Harmon be civilly committed as a sexually violent predator
according to the standards set forth in K.S.A. 59-29a01 et seq. The trial court found
probable cause to believe Harmon was a sexually violent predator and ordered that
Harmon be transferred from prison to a state hospital for evaluation before his trial.

Harmon waived his right to a jury trial, and the State presented testimony from
Dr. Johnson at a bench trial in March 2015. Dr. Johnson is the psychologist at Larned
State Hospital who evaluated Harmon and determined that he met the sexually-violent-
predator criteria; she testified that she had spent 28 hours working on Harmon's case.
Over the course of three interviews, Dr. Johnson spent approximately 5 hours
interviewing Harmon; the rest of her time was spent reviewing Harmon's records, scoring
standardized psychological tests, and writing the report.

Because Harmon challenges the sufficiency of the evidence, we will recount it in
some detail. In addition, because the State's evidence rests on the credibility of
Dr. Johnson, we will also review her qualifications.
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At the time she was evaluating Harmon, Dr. Johnson was working under a
temporary license and had not yet taken her final licensing exam. She was being
supervised by Dr. Greg Shannon, who reviewed and signed off on all of her work on
Harmon's case. Dr. Johnson testified that this arrangement was typical for psychologists
who were studying for the final licensing exam; these temporarily licensed psychologists
must be supervised by a licensed psychologist with more than 5 years of experience. As
the State points out in its brief, temporarily licensed psychologists, properly supervised,
can evaluate whether a person meets the sexually-violent-predator criteria under K.S.A.
59-29a01 et seq. See In re Care & Treatment of Ritchie, 50 Kan. App. 2d 698, Syl. ¶ 3,
334 P.3d 890, rev. denied 299 Kan. 1269 (2014); K.A.R. 102-1-5a. Harmon did not
challenge Dr. Johnson's credentials or supervision at trial, nor does he do so on appeal.

Dr. Johnson testified that she diagnosed Harmon with pedophilia (sexually
attracted to females, nonexclusive type); narcissistic personality disorder with antisocial
features; exhibitionism; frotteurism (a disorder in which a person gets sexual gratification
from touching or rubbing against a nonconsenting person); and voyeurism. Dr. Johnson
testified that she diagnosed Harmon with pedophilia (sexually attracted to females, non-
exclusive) because he has used children for his own sexual gratification, has never
offended against a male victim, and has also had sexual relationships with adult women.
This evidence came both from Harmon himself and from his records. Harmon's attraction
to female children was demonstrated through his offenses. Regarding his adult
relationships, Dr. Johnson testified that Harmon has been married three times (and
divorced twice): to a Korean woman in 1974, to a Chinese woman in 1984, and to a
woman from the Philippines in 1994, to whom he is still married.

Dr. Johnson stated that her diagnosis of narcissistic personality disorder was based
on Harmon's "grandiose sense of self-worth" and sense of entitlement, as demonstrated in
Harmon's interviews and in his records. One example Dr. Johnson gave for this diagnosis
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related to how Harmon had treated his wives: he said that his Oriental wives became
spoiled when they became Americanized and indicated that it was a wife's duty to have
sex with her husband even if she didn't want to. Harmon testified to this belief as well:
when asked about his marital history, Harmon referred to the Bible to support his belief
that it was a wife's duty to have sex with her husband. Dr. Johnson also testified that a
hallmark of narcissistic personality disorder is viewing other people as objects for one's
personal use and gratification; she said Harmon had described his victims to her as
though they were objects or sex toys. Dr. Johnson stated that the antisocial features of her
diagnosis were based on Harmon's history of violating other people's rights and showing
a lack of empathy, which was apparent when he blamed his victims for his crimes: "He'll
say, I feel bad for this; but then he said that it was the granddaughter[s'] fault, because
they came to him, they made him take his clothes off to play Naked City." Finally, Dr.
Johnson testified that Harmon had discussed in detail his "grandfatherly image," which
was an authoritative position that allowed him to coerce and manipulate his victims
without admitting that he was doing so—an example of the sense of entitlement and
violation of others' rights typical of people with this disorder.

Dr. Johnson diagnosed Harmon with voyeurism, or "peeping behavior," based on
Harmon telling her that he had looked at his mother in the shower as a teenager and had
watched a child undress in his backyard and used those experiences for his own sexual
gratification. She testified that she had diagnosed Harmon with exhibitionism based on
both his records and his interview. Harmon denied exhibitionist behaviors during his
interviews with Dr. Johnson but did tell her that he had removed his clothes in front of a
6-year-old child. Dr. Johnson also supported this diagnosis with information from
Harmon's records that children had caught him in the nude and that he had exposed
himself to his daughter's friend and told her she could "do magic" by touching his penis.
Finally, Dr. Johnson testified that she had diagnosed Harmon with frotteurism based on
statements he had made to her about fondling children at a pajama party and fondling a
young girl while playing with her in a swimming pool.
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Dr. Johnson testified that in her opinion Harmon's mental abnormalities and
personality disorder made him likely to engage in repeat acts of sexual violence. She
stated that all of Harmon's sexual relationships were based in sexual offending of some
kind, from voyeurism (watching his mother in the shower when he was a teenager)
through his marriages (in which he felt entitled to sex regardless of what his wives
wanted)—not to mention the sexual abuse of his daughter and granddaughters. Dr.
Johnson testified that when asked what types of feelings or mood would put him at risk of
sexually offending, Harmon had replied, "I don't think it was a feeling or a mood. With
my daughter it was curiosity. How is the vagina made? What are the details of it? It
wasn't her. It was more me. It's my want to use something to masturbate with." This
response was problematic, according to Dr. Johnson, because it placed Harmon in the
role of an intellectual observer and allowed him to deny and rationalize his sexual urges.
Dr. Johnson also testified that Harmon's relapse-prevention plan—to not have children in
his house—was problematic because his records and interview showed that he had also
offended outside the home and because it placed the responsibility of not offending on
the children. Dr. Johnson then connected these issues to Harmon's diagnoses: his
narcissistic personality disorder and pedophilia are at play because he places himself in
the role of a removed and superior observer who is entitled to use his young victims for
his own purposes, while not admitting the root cause of his aberrant sexual desires.
Essentially, Dr. Johnson testified that Harmon's narcissistic personality disorder makes
him unable to admit to his pedophilia, and a person cannot change a behavior or address a
problematic sexual urge if that person can't admit such an urge exists.

When Dr. Johnson asked Harmon about how he used to set up situations in which
he could sexually offend, he became distressed and told Dr. Johnson, "I don't want these
things to come into my head, because I can remember and can see the things I did in my
head." Dr. Johnson testified that Harmon became visibly aroused at that point. But when
he continued to answer Dr. Johnson's question, he referred to his victims as "something to
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masturbate with," which, according to Dr. Johnson, showed that he was unable to cope
with the distress of the situation until he removed the emotional component and referred
to his victims as objects. When Harmon testified about this incident, he said that the
reason he appeared aroused was that he was noticing that Dr. Johnson was attractive and
that he was trying to redirect his thoughts from the behaviors they were discussing.

Dr. Johnson testified that Harmon would have difficulty controlling his dangerous
behaviors because he denied that he had these sexual urges and rationalized them away,
which would allow him to continue offending. When asked what he would do if he were
alone in a room with a child, Harmon told Dr. Johnson that he would try to find an adult
or "call someone." Dr. Johnson testified that this was troubling because it placed the
responsibility for not offending on other adults and showed a lack of forethought and
coping skills. She stated that because of his narcissistic personality disorder, Harmon's
grandiose sense of self-worth made it difficult for him to admit to having poor emotional
control or aberrant sexual desires, which sets him up to deny and rationalize his sexual
urges.

Finally, Dr. Johnson testified about the tests she administered for Harmon's
evaluation. She administered a test for psychopathy, and Harmon's results showed that he
had antisocial traits but not antisocial personality disorder or psychopathy. Dr. Johnson
also administered the Static-99, which psychologists use to estimate the probability that a
sexual offender will reoffend; Harmon scored in the moderate-to-high-risk category. She
stated, however, that because the Static-99 doesn't account for improvements an offender
may have made as a result of treatment, it should be taken with a grain of salt. Instead,
she said she placed more weight on the interviews.

The defense did not present expert testimony; Harmon testified in his own
defense, and the State waived cross-examination. When asked about why he offended
7

with his daughter and granddaughters, Harmon recalled that the victims were available
when he wanted sexual gratification:

"Well, I was doing it for my own gratification. I was curious. That's what I
thought at the time, I was—no. No, that—no, no, no—

". . . it's really no excuse why I did it, but I . . .

"Well, the—one instan[ce] that came up at that time was—was my nephew had
brought over a pornography tape. And I watched that, and then right afterwards, my
daughter was available, and I molested her, and—but that's why I did it then, yes.

"Q: What about your granddaughters?

"A: Granddaughters. Well, there—it started with a—I was in my bedroom, and they—
they came in and they stood in front of me, and they were completely nude. And they told
me that they wanted to play something called 'Naked City.' And instead of being an adult
and tell them to go get their clothes on themselves, I molested them."

Harmon acknowledged that his behavior was inappropriate but avoided taking all the
blame himself:

"But forced, I didn't force them. They did come up, and they asked, and they wanted—it
seemed to me like they had done it before with someone else. That's—that's what I
thought at the time.

"But I wasn't—I didn't take appropriate action. But I didn't force them. I mean, I
didn't send them off to get dressed or I didn't discipline myself not to molest them then.
But, forced, no."

When asked about whether he could control his behavior, Harmon testified about
how he had generally avoided disciplinary action in the highly structured prison
8

environment and explained the two disciplinary incidents that had occurred. In both
instances, as the district court pointed out, Harmon suggested that the other people
involved were at fault and that he had nothing to do with causing the altercations. When
asked, "[W]hat's changed now? Why should the Court believe that anything's different
than what happened back in '89 or 2004?" Harmon spoke about his experiences in prison
and wanting to improve relationships with his family:

"A. Well, since that time, I've been through prison, jail, and each one of them has had
their own effects on me.

"The physical—or stand in line, somebody's hitting you or pushing you, or
threatening you, I was always fearing for my life in prison, my safety.

"The . . . the ostracization, you're the lowest scum of the earth, and—but—and
the pain of—that I caused everyone, through my actions and my not taking responsibility
to—I don't know . . .

"My loss of friends, the public knowledge that's—that is on the Internet. I mean,
then I could walk around and nobody—I mean, I was invisible. I was just another person.
And because it—if you—just to look at a person, you don't know what they're doing
behind the scenes.

"But—and I've been—I'm scared of going back to prison. Scared of—if—if I
were to [recidivate]—to re-offend, then I would never come home. You would have to
lock me up forever.

"And I made a promise to my wife not to re-offend. I promised her I would be a
husband that—a good husband. And I would like to keep that promise.

"And in all of that, when I think of the victims, they're feeling the same way, or
worse. What I did . . . I did to—well, my daughter—we talk, and she sees me, and I can
see she's—still suffers from my molestation of her.

9

"I know the victims never get over it. They—they will have problems that—[are]
unforeseen. But I—I would like to be able to help them if—if they could use my help in
therapy or something. I don't know. But I would like to apologize to them.

"And it's been an ongoing problem—process with my daughter, because she—I
think she married an abusive husband because of me . . . .

"And—and all this, I'm sure, has affected my wife. She doesn't show it so much,
but I'm sure she's feeling something that we haven't spoken to, and I'm looking forward to
going to, I don't know, counseling or something, to include her in it. Not to put my
control on her, but so that she knows what's happening with me.

"But this—it's just been too traumatic for me, and for everyone else. I mean, it's
affected so many people that it's up—upset their lives. I think that's—that says what I feel
on that."

Because Dr. Johnson was the only expert who testified and because the district
court found her to be credible, it relied on her testimony to find that the State had proved
Harmon was a sexually violent predator beyond a reasonable doubt. The district court
also noted that it did not find Harmon's testimony credible or compelling: "[Harmon]
simply is not credible in his statements of how he recognizes his weaknesses and what he
will do to avoid or prevent repeating that behavior."

Harmon has appealed to this court.

ANALYSIS

The District Court Had Sufficient Evidence to Conclude Beyond a Reasonable Doubt
That Harmon Is a Sexually Violent Predator.

Harmon argues that the evidence was not sufficient to support the district court's
finding that he is a sexually violent predator. The district court (either through a judge or
10

a jury) is the factfinder, and a case in which the sufficiency of evidence is challenged
comes to us only after the State has won at trial. Accordingly, since the factfinder has
already found in the State's favor, we must consider the evidence in the light most
favorable to the State. We then determine whether a reasonable factfinder could have
found that the State proved beyond a reasonable doubt that Harmon is a sexually violent
predator. In re Care & Treatment of Williams, 292 Kan. 96, 104, 253 P.3d 327 (2011).
We do not reweigh the evidence or determine the credibility of witnesses. 292 Kan. at
104.

The Kansas Sexually Violent Predator Act, K.S.A. 59-29a01 et seq., was designed
to identify sexually violent predators and civilly commit them to a long-term treatment
program. 292 Kan. at 104. The statutory requirements of K.S.A. 59-29a01 et seq.,
combined with the holding in Kansas v. Crane, 534 U.S. 407, 413, 122 S. Ct. 867, 151 L.
Ed. 2d 856 (2002), which upheld the constitutionality of the Act, impose four elements
that the State must prove beyond a reasonable doubt to commit someone as a sexually
violent predator: (1) the individual has been convicted of or charged with a sexually
violent offense; (2) the individual suffers from a mental abnormality or personality
disorder; (3) the individual is likely to commit repeat acts of sexual violence because of a
mental abnormality or personality disorder; and (4) the individual has serious difficulty
controlling his or her dangerous behavior. Williams, 292 Kan. at 106; see K.S.A. 2014
Supp. 59-29a02(a)-(e); K.S.A. 2014 Supp. 59-29a07.

Harmon doesn't dispute that the State proved the first element beyond a reasonable
doubt; evidence of Harmon's 1989 and 2005 convictions was admitted at trial without
objection. What Harmon challenges on appeal is the credibility of the State's expert, Dr.
Johnson. Because the defense did not present any expert testimony, the district court's
decision was based almost solely on Dr. Johnson's testimony. Harmon argues that
Dr. Johnson's testimony was so undermined on cross-examination that it wasn't sufficient
to support the district court's finding that Harmon is a sexually violent predator.
11


Most of Harmon's complaints concern certain inconsistencies in how Dr. Johnson
scored two psychological tests, the Static-99 and Static-2002. Dr. Johnson testified that
psychologists use these tests to predict the likelihood that a sexual offender will reoffend
by comparing an individual's test results with the test results of a group of sexual
offenders who have actually reoffended. She gave Harmon a score on the Static-99 that
showed he was at a moderate to high risk of reoffending, and she defended her result
despite knowing that two other psychologists had scored Harmon in the low-risk
category. Some of the choices Dr. Johnson made in scoring these tests were strongly
challenged. She never clearly explained why she had said one of Harmon's victims was a
stranger on the Static-2002 when she hadn't done so on the Static-99. She merely said
that the two tests had different rules for scoring, which may have accounted for the
difference. Similarly, on the Static-99, she said that Harmon had never lived with a
romantic partner for more than 2 years, but it was well established that Harmon had been
married three times, each for more than 2 years. In addition, Dr. Johnson had difficulty
independently recalling the rules for scoring the tests (though she also testified that when
she scored tests like these, she would do so with the rules directly in front of her).

While this line of cross-examination may have undercut Dr. Johnson's testimony,
especially about the Static-99 test result, in her direct testimony she said that her ultimate
conclusion that Harmon is a sexually violent predator was based primarily on her
interviews with him, not on the results of the Static-99. She stated she wouldn't rely
solely on the Static-99 and that the results of such a test should be taken "with a grain of
salt." Harmon also takes issue with Dr. Johnson's interpretation of the definitions
provided by a standard psychological text, the Diagnostic and Statistical Manual of
Mental Disorders, fourth edition (DSM-IV-TR), for exhibitionism, voyeurism, and
frotteurism, but Dr. Johnson's testimony about her interpretation of those definitions was
reasonable and uncontroverted.

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Ultimately, Harmon's argument on appeal is that the evidence was insufficient
because Dr. Johnson wasn't credible. But we do not make credibility determinations; we
can ask only whether the district court's decision was supported by substantial evidence.
Williams, 292 Kan. at 104. Despite the specific inconsistencies that Harmon pointed out,
we are still left with substantial testimony from Dr. Johnson, who had a Doctor of
Psychology degree in clinical psychology and was working under the supervision of a
fully licensed psychologist. She spent about 28 hours working on Harmon's case,
including 5 hours of interviews. Based on all of that, she concluded that he was likely to
reoffend. Considering her testimony as a whole, in the light most favorable to the State,
we are convinced that a reasonable factfinder could have relied on that testimony to
conclude that the State proved beyond a reasonable doubt that Harmon is a sexually
violent predator.

We affirm the district court's judgment.




 
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