In re Care & Treatment of Hemby

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NOT DESIGNATED FOR PUBLICATION

No. 118,490

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Matter of the Care and
Treatment of KENNETH D. HEMBY, JR.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; JEFFREY SYRIOS, judge. Opinion filed June 15, 2018.
Affirmed.

Mark Sevart, of Derby, for appellant.

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

Before SCHROEDER, P.J., MALONE, J., and STUTZMAN, S.J.

PER CURIAM: Kenneth D. Hemby Jr. appeals a jury finding he is a sexually
violent predator subject to involuntary commitment. First, he claims the evidence
submitted to support the finding was insufficient. Second, he complains the State unfairly
cross-examined his expert psychologist and, thus, unfairly attacked his credibility. Third,
Hemby asserts the statements made during the State's closing arguments unduly
prejudiced him. Finally, he claims the cumulative effect of all the claims requires
reversal. After reviewing the record, we find Hemby's complaints are unpersuasive and
no error was committed during the trial. We affirm.

FACTS

The State filed a petition under the Kansas Sexually Violent Predator Act, K.S.A.
59-29a01 et seq., alleging Hemby was a sexually violent predator. The district court
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appointed Dr. Robert Barnett as an expert psychologist to evaluate Hemby. The matter
proceeded to jury trial.

The district court took judicial notice of Hemby's convictions for rape and
aggravated criminal sodomy in case No. 91CR434. Hemby acknowledged to the jury his
convictions fully established the first element of a sexually violent predator finding.

Dr. Mitchell Flesher testified as an expert for the State. He testified he believed
Hemby met the diagnostic criteria for antisocial personality disorder. Dr. Flesher based
his opinion on Hemby's four or five prior convictions, three sexually violent acts, a
pattern of substance abuse beginning in Hemby's teens, and an inability to follow rules
and regulations. Dr. Flesher opined Hemby's personality disorder made him likely to
commit repeat acts of sexual violence based on his history of violating the rights of
others—both physically and sexually—and difficulty complying with the rules placed
upon him. Dr. Flesher also opined Hemby had serious difficulty controlling his behavior.

C.J., the victim in case No. 91CR434, also testified. She explained how Hemby
raped her, threatened to kill her as she struggled to get away, and tried to intimidate her in
court. On cross-examination, C.J. indicated she wanted to be there because she was
"protecting people." She also indicated she did not know anything about Hemby's mental
health or any crimes he may have committed before or after 1991.

Dr. Derek Grimmell also testified as an expert witness for the State. Dr. Grimmell
indicated an expert's opinion was suspect if the expert fell below the standard of care. He
also testified Hemby suffered from antisocial personality disorder as well as two
substance abuse disorders. Dr. Grimmell noted there was evidence of a conduct disorder
prior to age 15 because Hemby was a full-fledged alcoholic by age 13 or 14, was truant,
got into a lot of fights, and abused substances. He also testified Hemby's condition made
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him more likely to commit sexually violent offenses and he had difficulty controlling his
behavior.

During cross-examination, Dr. Grimmell explained Hemby was "not a shark
looking for a victim, but if he gets into the wrong situation he lacks brakes." On redirect
examination, Dr. Grimmell explained Hemby was more like another predator—a bear:

"He's more like a bear, seriously. As long as you're not getting near a bear's cubs and the
bear isn't too terribly hungry, it will just ignore you. If you do either of those things, you
become part of the food chain. So, yeah, bears act in heat, at least with respect to people."

Hemby testified he was an alcoholic and was powerless over alcohol. He admitted
to drinking alcohol while on parole in 2006 despite knowing he was not supposed to and
that he risked going to prison. He drank alcohol even though attending Alcoholics
Anonymous was a condition of his parole. Hemby also acknowledged he drank alcohol
while on parole in 2012 in violation of his conditions of parole.

Dr. Barnett testified in Hemby's defense. Dr. Barnett testified he had been a
licensed psychologist in Kansas for approximately 29 years, had performed 35-45
sexually violent predator evaluations, and had previously testified as an expert
approximately 30 times. Dr. Barnett explained he reviewed Dr. Flesher's and Dr.
Grimmell's reports. Dr. Barnett indicated he did not believe the Static-99R—a test both
Dr. Flesher and Dr. Grimmell performed—was reliable. Dr. Barnett testified Hemby was
capable of controlling his behavior but noted that if Hemby drank alcohol again, "all bets
. . . [were] off." Dr. Barnett also testified he did not believe possession of marijuana as a
teenager supported a diagnosis for antisocial personality disorder. He was also unwilling
to say truancy was an indicator of a conduct disorder without knowing how or why the
individual was truant.
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After questioning Dr. Barnett about whether he had ever been trained on using a
Static-99R, the State asked Dr. Barnett if he had ever been licensed in another state or
disciplined by any state licensing board. Dr. Barnett indicated he had received an ethical
complaint while he was an intern in Ohio 32 years earlier for having a sexual relationship
with a former client.

During closing arguments, the State repeatedly referred to Hemby as a "bear." The
State also told the jury it had to prove it was "likely," not "more probable than not" or
"guaranteed," that Hemby would commit additional acts of sexual violence. Finally, the
State reminded the jury Hemby had admitted he was "powerless" over alcohol and asked
the jury to "[n]otice how this argument tries to minimize his behavior."

The jury found Hemby was a sexually violent predator subject to involuntary
commitment. Hemby appealed.

ANALYSIS

The evidence was sufficient.

Hemby contends the State presented insufficient evidence he was a sexually
violent predator. Specifically, he argues the State failed to show he suffered from a
mental abnormality or personality disorder.

"When presented with an issue of whether evidence was sufficient to sustain the
State's burden of proof in a sexually violent predator case, this court's standard of review
asks whether, after review of all the evidence, viewed in the light most favorable to the
State, we are convinced a reasonable factfinder could have found the State met its burden
to demonstrate beyond a reasonable doubt that the individual in question is a sexually
violent predator. As an appellate court, we will not reweigh the evidence, pass on the
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credibility of witnesses, or resolve conflicts in the evidence. [Citations omitted.]" In re
Care & Treatment of Williams, 292 Kan. 96, 104, 253 P.3d 327 (2011).

In order to establish an individual is a sexually violent predator, the State must
prove four things:

"(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." In re Williams, 292 Kan. at 106.

On appeal, Hemby challenges whether the evidence was sufficient to establish he
suffers from a mental abnormality or personality disorder. He does not challenge the
sufficiency of the evidence on the other three elements the jury used to find Hemby to be
a sexually violent predator. The State's psychologists diagnosed Hemby with antisocial
personality disorder. A diagnosis of antisocial personality disorder requires "evidence of
a conduct disorder with onset before the age of 15." Hemby argues, "the evidence fails to
show an onset of childhood Conduct Disorder as is required by the DSM-5 to support a
diagnosis of Antisocial Personality Disorder" because the only offense in his juvenile
record was for misdemeanor possession of marijuana.

Despite his contentions otherwise, there was sufficient evidence supporting this
element of the sexually violent predator finding. Both Dr. Flesher and Dr. Gimmell
testified the Diagnostic & Statistical Manual of Mental Disorders (DSM-5), p. 659 (5th
ed. 2013), only requires evidence of a conduct disorder before age 15, not the diagnosis
of a conduct disorder before age 15. Dr. Flesher indicated he believed Hemby's
suspension for possession of marijuana as a seventh-grader was evidence of a conduct
disorder prior to age 15. In addition, Dr. Grimmell testified Hemby's alcohol abuse,
substance abuse, truancy, and adolescent fighting were evidence of a conduct disorder
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prior to age 15. Even Dr. Barnett admitted that, although he would need to know more
details about the incidents, adolescent juvenile delinquency could be serious rule
violations sufficient to support evidence of a conduct disorder.

Hemby also tries to minimize and argue his diagnosis should be "nullified"
because at the time of his offense he suffered from substance abuse and was under the
influence. For support, he quotes the general criteria for a personality disorder and an
antisocial personality disorder from summaries of the DSM-5, which state: "The
impairments in personality functioning and the individual's personality trait expression
are not solely due to the direct physiological effects of a substance (e.g, a drug of abuse,
medication) or a general medical condition (e.g., severe head trauma)." See DSM-5, pp.
646-49 & pp. 659-66. However, no evidence presented suggests this provision of the
DSM-5 applies. Further, nothing in Dr. Flesher's or Dr. Grimmell's testimony indicated
their diagnoses were based solely on Hemby's rape conviction.

Viewed in the light most favorable to the State, the evidence supports the jury's
sexually violent predator determination. There was sufficient evidence Hemby is a
sexually violent predator and likely to reoffend.

The State's cross-examination of Dr. Barnett did not deny Hemby a fair trial.

Hemby next argues the State's cross-examination of Dr. Barnett denied him a fair
trial when the State unfairly questioned Dr. Barnett's character and credibility.

An attorney's conduct may be the cause of reversal and remand for new trial, even
in the absence of an objection, if it denies the respondent the right to a fair trial. In re
Care & Treatment of Ontiberos, 45 Kan. App. 2d 235, 248, 247 P.3d 686 (2011), aff'd
295 Kan. 10, 287 P.3d 855 (2012). "'Factors necessary to a fair trial are an adequate
hearing before an impartial tribunal based on legally admissible evidence relevant to the
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issues involved, free from bias or prejudice.'" 45 Kan. App. 2d at 248 (quoting Smith v.
Blakely, Administrator, 213 Kan. 91, 96, 515 P.2d 1062 [1973]). Prejudice to the
respondent is the central consideration. In re Ontiberos, 45 Kan. App. 2d at 248.

Shortly into its cross-examination of Dr. Barnett, the State asked:

"Q. Doctor, you testified about your licensing status. Have you ever been
licensed in another state other than Kansas?
"A. Not as a clinical psychologist, no.
"Q. Have you ever been disciplined by any state licensing board?
"A. Well, technically, no, but I was found in violation of an ethical—in an ethical
complaint 32 years ago in Ohio. I wasn't disciplined because I wasn't licensed.
"Q. Okay. Were you denied a license by the state of Ohio?
"A. Yeah. But, again, technically I was denied the license because I failed the
oral exam, not because of the ethical complaint.
"Q. And what was the basis of the ethical complaint?
. . . .
"A. Sure. I was disciplined—well, there was a disciplinary complaint because I
had a relationship, sexual relationship, with a former client when I was an intern in
Kansas."

Hemby argues the State's questioning of Dr. Barnett's character and credibility
denied him a fair trial. He contends the State should have raised issues related to Dr.
Barnett's credibility when Dr. Barnett was appointed as Hemby's independent examiner.
Hemby seemingly argues the State "set the stage" to strip Dr. Barnett of his credibility by
asking the State's own expert about ethical issues affecting the reliability of an opinion.
Since Dr. Barnett was appointed by the court, Hemby argues: "[I]f the Trial Court has no
problem with Dr. Barnett's qualifications, the State shouldn't either. . . . Allowing ethics
qualification cross examination on a Court Appointed examiner adversely effects the
Respondent who is left without an expert and therefore left without a fair trial."

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Hemby's argument is unpersuasive. He was not denied the right to an expert
witness. Dr. Barnett conducted a psychological evaluation of Hemby, prepared an expert
report, and testified. Dr. Barnett told the jury he had been a licensed psychologist for 29
years, had performed 35-45 sexually violent predator evaluations, and had previously
testified as an expert approximately 30 times. He explained to the jury why he believed
Hemby could not properly be diagnosed with antisocial personality disorder. Dr. Barnett
testified he did not believe possession of marijuana in middle school or truancy was
indicative of a conduct disorder before age 15.

Furthermore, the State's witnesses never testified an ethical issue made an expert's
subsequent opinion unreliable. Hemby seemingly refers to this exchange between the
State and Dr. Grimmell related to a psychologist's standard of care:

"Q. Doctor, we left off in questioning about meeting the standard required of a
psychologist. What does it mean to practice psychology beneath the standard required by
the profession?
"A. What it ultimately means is that you risk discipline against your license if
you practice below the standards. Standards of care are something in medicine. They're in
psychology. They're in social work. They define the minimum that your client is entitled
to expect you to do. And if you go below that, there is a chance that a licensing board
may issue a letter of reprimand or insist you undergo training or supervision or they may
suspend or revoke your license.
"Q. Does it make your opinions that you have prepared and formulated suspect if
you're beneath the standard?
"A. Yes, it does. We establish the standards because it's the best known way to
practice. So that's common to medicine, psychology, all of the health care fields."

Dr. Grimmell did not testify an ethical issue makes an expert opinion unreliable;
he testified that falling below the standard of care makes an opinion suspect. No one
testified Dr. Barnett's level of care was below the standard of care. Hemby was not
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denied the right to an expert witness on his behalf. The State's questioning of Dr. Barnett
did not unfairly prejudice Hemby or deny him the right to a fair trial.

However, although the questioning was within acceptable standards, the need to
expose the jury to Dr. Barnett's ethical complaint of 29 years ago was questionable.
Although marginally relevant and admissible, it had little-to-no value for the jury to
consider when it evaluated Dr. Barnett's testimony.

No errors committed during closing argument.

Hemby also contends the State committed errors during closing argument that
denied him the right to a fair trial. Specifically, he asserts the State denied him a fair trial
in five different ways: by suggesting Dr. Barnett's ethical issues in Ohio made him
unbelievable; allowing C.J. to testify she was there to "protect people"; referring to
Hemby as a "bear"; lowering the State's burden of proof; and by arguing Hemby was
"powerless over alcohol."

An attorney's conduct may be the cause of reversal and remand for new trial, even
in the absence of an objection, if it denies the respondent the right to a fair trial. In re
Ontiberos, 45 Kan. App. 2d at 248. "'Factors necessary to a fair trial are an adequate
hearing before an impartial tribunal based on legally admissible evidence relevant to the
issues involved, free from bias or prejudice.'" 45 Kan. App. 2d at 248 (quoting Smith, 213
Kan. at 96). Prejudice to the respondent is the central consideration. In re Ontiberos, 45
Kan. App. 2d at 248.

Commenting on Dr. Barnett's Ethical Issues

In arguing the State denied him a fair trial during closing arguments, Hemby
asserts: "The prosecutor tried to suggest Dr. Barnett had issues in Ohio thereby making
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him questionable and unbelievable." He does not expand on this argument. However, the
State did not mention Dr. Barnett's Ohio ethical complaint during closing argument. It is
unclear how Hemby believes the State improperly commented on Dr. Barnett's credibility
considering the State did not comment at all on Dr. Barnett's credibility during its closing
argument.

C.J.'s "protecting people" Comment

Hemby seemingly argues the State prejudiced him during closing arguments when
it referred to C.J.'s testimony that she wanted to be there because she was "protecting
people." However, the State did not reference this portion of C.J.'s testimony during its
initial closing argument. During his closing argument, Hemby questioned the State's
decision to call C.J. as a witness:

"Now, they called [C.J.]. Why? To prove the offense? They had the reading of the
offense. Oh, we went over what happened, what happened, what did Mr. Hemby say
happened, what did [C.J.] say happened. Why do you think the State called her? To prove
the element? They needed her to prove the element?
"They wanted her to tell that story in person. Like for every emotional person in
the world, that was not a pleasant story to hear, but it was to evoke sympathy and
emotion and not about the elements that the State has to prove."

During rebuttal, the State instructed the jury it could not use sympathy to decide
the case. Without referencing C.J.'s "protecting people" comment, the State explained
C.J.'s testimony was evidence Hemby had difficulty controlling his dangerous behavior.
While the State referenced C.J.'s testimony throughout its closing argument, it never
mentioned the "protecting people" comment Hemby now complains of on appeal.



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Hemby is a "bear" Reference

Hemby also complains the State referred to him as a "bear." During closing
argument, the State explained to the jury:

"Mr. Hemby is a bear, as Dr. Grimmell described him. He's not a shark. He's not a teddy
bear by any means, but he is an antisocial personality disordered bear. And when the bear
encounters trouble, the bear attacks. The antisocial personality disordered bear may not
go out looking for trouble the way a shark does. He's not that kind of predator. But his
history in the community is that when trouble comes his way, he is powerless to handle
it."

The State's arguments during closing are similar to the way Dr. Grimmell
described Hemby during the trial. On cross-examination by Hemby's attorney, Dr.
Grimmell stated Hemby was "not a shark looking for a victim." Later, Dr. Grimmell
explained, "[H]e isn't a shark, because he isn't a serial attacker, he's an opportunistic
attacker." On redirect examination, the State asked: "So you use the example he's not a
shark but he's some other kind of predator?" Dr. Grimmell replied:

"He's more like a bear, seriously. As long as you're not getting near a bear's cubs and the
bear isn't too terribly hungry, it will just ignore you. If you do either of those things, you
become part of the food chain. So, yeah, bears act in heat, at least with respect to people."

In this context, the State was not "name-calling" when it referred to Hemby as a
bear. Instead, it was an accurate restatement of the evidence and a fair comment on the
evidence during its closing argument. Hemby suffered no unfair prejudice when the State
referred to him as a bear.



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Lowering the Burden of Proof

Hemby complains the State tried to lower its burden of proof when it informed the
jury: "Mr. Hemby's personality disorder makes him likely—please note that the word is
likely. It is not more probable than not. It is not guaranteed. It is not absolutely but likely
that Mr. Hemby will engage in repeat acts of sexual violence." However, this truncates
the State's argument. In discussing the third element of a sexually violent predator
finding—the individual is likely to commit repeat acts of sexual violence because of a
mental abnormality or personality disorder—the State explained:

"The third claim the State has made is whether the personality disorder—is that
Mr. Hemby's personality disorder makes him likely—please note that the word is likely.
It is not more probable than not. It is not guaranteed. It is not absolutely but likely that
Mr. Hemby will engage in repeat acts of sexual violence. We've already talked about the
fact that in just his risk of repeating acts of sexual violence he is a higher risk because
he's committed three acts of sexual violence in the past. Please note that the State does
not have to show that he will commit or be charged or convicted in the future, just, again,
that he is likely to engage in repeat acts of sexual violence."

In context, the State was merely reiterating to the jury that it did not have to prove
Hemby would commit another act of sexual violence, merely that he was likely to commit
another act of sexual violence. Furthermore, during his closing argument, Hemby
misstated the State's burden of proof was beyond a reasonable doubt. The State was not
attempting to lower its burden of proof, it was clarifying for the jury the correct standard
to use as reflected in the jury instructions.

"Powerless" Over Alcohol

In Hemby's final complaint against the State's closing argument, he claims the
State also unfairly prejudiced him when it reminded the jury: "He describes his inability
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to control his drinking as powerless to control alcohol, powerless. Mr. Hemby's own
words, I am powerless. He himself testified I am powerless over alcohol." In rebuttal, the
State continued:

"He drank. He admitted that he drank. He admitted he looked at porn. He said both those
things were bad. He said that he was powerless to control his relationship with alcohol.
"Notice how this argument tries to minimize his behavior. Notice how he is
trying to excuse his conduct and his violations of parole and his conduct. . . . He even
couches it in terms of he was violated and rolled back to prison. He doesn't say I violated
parole. He says I was violated."

Hemby testified he was an alcoholic and was powerless over alcohol. He testified
he drank alcohol while on parole in 2006 despite knowing he was not supposed to and by
doing so he risked going back to prison. He drank alcohol even though attending
Alcoholics Anonymous was a condition of his parole. Hemby also acknowledged he
drank alcohol while on parole in 2012. The State's closing arguments accurately reflected
Hemby's trial testimony. He was not prejudiced or denied a fair trial when the State told
the jury Hemby was powerless over alcohol.

Cumulative Error

Hemby briefly argues "[t]he totality of the arguments affected Mr. Hemby's
substantial rights and denied him his right to a fair trial." None of Hemby's alleged errors
were actually erroneous. The court will find no cumulative error when the record fails to
support the errors the respondent raises on appeal. See State v. Marshall, 303 Kan. 438,
451, 362 P.3d 587 (2015).

Affirmed.