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No. 103,964 IN THE COURT OF APPEALS OF THE STATE OF KANSAS IN THE MATTER OF THE CARE AND TREATMENT OF MARK PALMER. SYLLABUS BY THE COURT 1. A trial court's determination of probable cause under the Sexually Violent Predator Act must be compared to a probable cause determination at the preliminary examination stage of a felony criminal proceeding in that it requires evidence sufficient to cause a person of ordinary prudence and action to conscientiously entertain a reasonable belief that the accused is a sexually violent predator.

2. Summary judgment is not available to either the State or the respondent in proceedings to determine if someone is a sexually violent predator after a probable cause finding.

3. When seeking to prove someone is a sexually violent predator subject to involuntary civil commitment, the State must prove beyond a reasonable doubt: (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.
Appeal from Johnson District Court; JOHN P. BENNETT, judge. Opinion filed November 10, 2011. Affirmed.

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Michael J. Bartee, of Michael J. Bartee, P.A., of Olathe, for appellant.

Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.

Before MALONE, P.J., MARQUARDT and HILL, JJ.

HILL, J.: We affirm the trial court in this case and reject all three of the claims of error raised by the appellant. Mark Palmer contends the trial court erred when it failed to dismiss his sexually violent predator case when one of the evaluators at Larned State Security Hospital opined he was not a predator while another evaluator said he was. Because this evidence arose after Palmer stipulated there was probable cause to believe he was a sexually violent predator, we hold Palmer's motion to dismiss was really a motion for summary judgment. Obviously, to rule upon such a motion, the trial court would necessarily have to weigh evidence, which a court cannot do when ruling on a motion for summary judgment. We hold the trial court correctly denied the motion and submitted the case to the jury.

In another issue raised by Palmer, we hold there is sufficient evidence in the record for the jury to find he is a sexually violent predator. The record discloses that Palmer had been convicted of a sexually violent offense and that he suffers from a mental abnormality or personality disorder. There is testimony that Palmer is likely to commit repeat acts of sexual violence and has serious difficulty controlling his dangerous behavior.

Finally, we find the admission of several images of child pornography (with the children's faces redacted) from the multitude of images found on Palmer's computer was not erroneous. They were relevant and material to the issues in his sexually violent predator proceeding because the State was required to prove he had been convicted of a sexually violent offense. Further, the images served as evidence of Palmer's propensity to 2

commit sexually violent acts in the future because Palmer's viewing of such images served as the basis for the revocation of his parole. The images were not unduly prejudicial because the trial court wisely limited the number shown to the jury and had the faces of the children concealed.

Convicted of sexual exploitation of a child, Palmer has his first evaluation.

After being convicted for a violation of K.S.A. 21-3516, Palmer served a 32-month prison sentence for possessing child pornography on his computer. As Palmer's prison term neared its end, the State sought to commit Palmer as a sexual predator under the Kansas Sexually Violent Predator Act (Act), K.S.A. 59-29a01 et seq. Palmer waived his right to a probable cause hearing under K.S.A. 59-29a05. Dr. John Reid of the Larned State Security Hospital examined Palmer and concluded that Palmer did not meet the criteria of a sexually violent predator. The State voluntarily dismissed its petition and paroled Palmer in February 2008, but just 7 months later his parole was revoked.

Palmer's parole officer testified that Palmer had admitted to another Department of Corrections employee that he tried to access child pornography using a nudism website. No pornography was found on Palmer's computer at this time. Palmer explained during his revocation hearing that he had failed parole intentionally because he was afraid that if he did well in his weekly sex offender treatment group, he would be transferred to a monthly group and not receive the help he needed. Palmer went back to prison.

The State filed a second petition to determine if Palmer was a sexually violent predator.

Then, when it was nearing the time for his release, on November 10, 2008, the State filed this petition to have Palmer deemed a sexually violent predator. Again, Palmer waived his right to a probable cause hearing. Palmer was admitted to the Larned State Security Hospital for an evaluation. On February 6, 2009, the trial court was notified that 3

the evaluating clinicians, Dr. Greg Shannon and Dr. Reid, had determined Palmer did not qualify as a sexually violent predator.

In response, Palmer filed a motion to dismiss and/or for summary judgment, arguing that given the results of the court-ordered evaluation at the State's facility there were no factual issues in dispute that merited continuing the commitment proceedings. The State filed a response arguing that the statutory mechanism under the Act does not provide for summary judgment or pretrial dismissal on the facts. The trial court subsequently denied Palmer's motion, ruling that K.S.A. 59-29a06(a) does not have a provision for such a dismissal.

There was ample evidence of Palmer's mental abnormality presented at his jury trial.

At Palmer's jury trial, the State presented testimony from two expert witnesses who evaluated Palmer: Dr. Shannon, a psychologist at Larned who has conducted approximately 20 court-ordered sexual predator evaluations in Kansas, and Dr. Mitch Flesher, a forensic psychologist at Lansing Penitentiary who has conducted approximately 700 risk assessment evaluations on inmates who were being considered under the Act prior to being released on parole.

The seven remaining State's witnesses included Jack McNeley-Phelps, a therapist for Johnson County Mental Health, who treated Palmer in 2005. McNeley-Phelps sent a letter to the parents of an 11-year-old girl in Rhode Island, with an attached letter from Palmer, notifying them about Palmer's recurring thoughts of kidnapping their daughter.

Brian Pickens also testified. He is the FBI special agent in Kansas who began the FBI investigation regarding the letters sent to the people in Rhode Island. Pickens initially seized the child pornography images which resulted in Palmer's underlying conviction. 4

Also, Kenton Thompson, an Olathe Police Department detective, testified. He also conducted an investigation resulting in Palmer's underlying conviction. Jeffry Owen, the computer forensic examiner who examined Palmer's computer in 2005 and recovered child pornography images, gave testimony. Palmer's brother-in-law, Chris Tressin, told the jury about the letters he received from Palmer in 2006 while Palmer was incarcerated. Mike Gardner, Palmer's parole officer, and Kipp Low, the Department of Corrections employee who Palmer told he had violated his own parole, also gave evidence.

Palmer testified in his own defense and presented testimony from his mother, Laura Palmer.

During trial, both Dr. Flesher and Dr. Shannon agreed that Palmer suffered from pedophilia, major depressive disorder, and borderline personality disorder. Dr. Shannon believed Palmer did not fit the prototypical pedophile because Palmer's troubling thoughts and fantasies began as an adult, not during adolescence, and Palmer considers his thoughts disturbing rather than positive. Dr. Shannon indicated Palmer's pedophilia was related to the presence of an obsessive compulsive disorder. Dr. Flesher disagreed with any connection between Palmer's pedophilia and an obsessive compulsive disorder; however, he agreed that the onset of pedophilia begins during adolescence and Palmer's pedophilia was unusual because he has disclosed his stressful, rather than pleasurable, thoughts and fantasies about children to anybody that would listen. Both experts gave conflicting opinions concerning whether Palmer's mental abnormality or personality disorder makes Palmer likely to reoffend.

Dr. Shannon completed his report after interviewing Palmer seven times for a total of approximately 8 hours, reviewing Palmer's records, and administering two psychological assessment tools and the Minnesota Sex Offender Screening Tool-Revised. The MnSOST-R is an actuarial assessment test designed to measure the risk of sexually violent recidivism. Dr. Shannon used the MnSOST-R because, unlike the Static-99, it is a 5

valid test for someone with Palmer's noncontact conviction. Palmer scored -4 on the MnSOST-R, placing him in the Level 1 low risk category for sexual recidivism with a 10-12 percent risk of reoffending over a 6-year period. The level 1 category is the lowest of three levels and requires a score of 3 or less.

Dr. Shannon concluded that Palmer has a "very small" or low risk to reoffend and does not meet the criteria for a sexually violent predator. Specifically, Dr. Shannon concluded Palmer's fear of acting on his desire to be sexual with a child is more of a result of his obsessive compulsive illness. Dr. Shannon noted that Palmer "remains committed to receiving treatment for his obsessive thoughts" and has responded well to his medications controlling his depression and obsessive compulsive issues, resulting in fewer sexual fantasies regarding children. Dr. Shannon recommended continued sex offender treatment, therapy, and medication compliance during his postrelease control.

Dr. Flesher disagreed with the recommendation in Dr. Shannon's report. Dr. Flesher's report to the multidisciplinary committee made prior to Dr. Shannon's report recommended that Palmer should receive further group and individual treatment at Larned. The State did not admit a copy of Dr. Flesher's report at trial. Dr. Flesher concluded "beyond a reasonable doubt" that Palmer is likely to commit repeat acts of sexual violence by having sexual contact with a child. Dr. Flesher formed his conclusion after reviewing Palmer's records and conducting a risk assessment interview lasting approximately 1 hour. Dr. Flesher did not administer any actuarial tests because Palmer had committed a noncontact offense. Dr. Flesher testified that after he conducted Palmer's examination, it was possible he told Palmer he would not need to go to Larned.

In addition to admitting a copy of the journal entry of Palmer's underlying conviction, the State attempted to publish a packet of printed material containing dozens of recovered images of nude and semi-nude children taken from Palmer's computer and

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used to convict him in his underlying felony. The trial court allowed the State, over defense counsel's objection, to publish a limited number of redacted images.

The jury decided that Palmer was a sexually violent predator. The court committed him for treatment.

We give a brief review of the Sexually Violent Predator Act.

The Act, found at K.S.A. 59-29a01 et seq., is a self-contained statutory scheme, and its commitment process, is considered a civil proceeding, not a criminal one. Kansas v. Hendricks, 521 U.S. 346, 361, 365, 117 S.Ct. 2072, 138 L. Ed. 2d 501 (1997); In re Care & Treatment of Hay, 263 Kan. 822, 830, 953 P.2d 666 (1998). However, our Supreme Court has acknowledged that the involuntary civil commitment process possesses many characteristics similar to criminal proceedings. For example, the civil commitment process involves the Attorney General as the "prosecuting attorney" and entitles the respondent to assistance of counsel if indigent. The Act requires a unanimous verdict of a jury, K.S.A. 2010 Supp. 59-29a07(a), and carries the peril of an indefinite commitment to the custody of the Secretary of Social and Rehabilitation Services. K.S.A. 2010 Supp. 59-29a07(a)-(d). These proceedings require a probable cause hearing, K.S.A. 59-29a05, which is analogous to a criminal preliminary hearing. See In re Care & Treatment of Foster, 280 Kan. 845, 853, 127 P.3d 277 (2006).

A motion for summary judgment is not available in this type of proceeding.

Palmer argues that a respondent in a sexual commitment proceeding under K.S.A. 59-29a01 et seq. has the constitutional right to a pretrial motion to dismiss the proceeding. Consequently, Palmer asserts the trial court erred in denying his motion to dismiss. We reject Palmer's argument for two reasons. First, it ignores the probable cause provision of the Act in K.S.A. 59-29a05. Second, a trial judge confronted with a motion 7

for summary judgment is prohibited by law from weighing evidence, and to rule on such a motion in this context would require the court to weigh the conflicting testimony of two experts.

This question obviously calls for us to interpret several statutes, and the interpretation of a statute is a question of law over which appellate courts have unlimited review. Unruh v. Purina Mills, 289 Kan. 1185, 1193, 221 P.3d 1130 (2009).

Palmer's argument is at odds with the purpose of the probable cause hearing under K.S.A. 59-29a05. A trial court's determination of probable cause under the Act must be compared to a probable cause determination at the preliminary examination stage of a felony criminal proceeding in that it "requires evidence sufficient to cause a person of ordinary prudence and action to conscientiously entertain a reasonable belief that the accused is a sexually violent predator." Hay, 263 Kan. at 834. Given that a preliminary examination "is an inquiry as to whether the defendant should be held for trial," if the parties waive the preliminary examination, the trial court "shall order the defendant bound over to the district judge having jurisdiction to try the case." K.S.A. 2010 Supp. 22-2902(4); see State v. Hunter, 232 Kan. 853, 854, 658 P.2d 1050 (1983). If there is to be a motion to dismiss filed, it must be filed before the court's determination of probable cause.

Here, when the State filed its petition, it believed it had sufficient evidence that Palmer met the definition of a sexually violent predator. See K.S.A. 2010 Supp. 5929a04(a). Once Palmer waived his right to a probable cause hearing under K.S.A. 5929a05, he agreed there was sufficient evidence to bind him over for trial. At this point, the Act imposed three mandatory procedural requirements on the trial court. First, the trial court shall order Palmer to submit to an evaluation to determine whether he is a sexually violent predator. See K.S.A. 59-29a05(d). Second, the trial court shall conduct a trial within 60 days after the K.S.A. 59-29a05 probable cause determination to determine 8

whether Palmer is a sexually violent predator. See K.S.A. 59-29a06(a). Third, given that the Attorney General shall have a right to demand a jury trial under K.S.A. 59-29a06(c), the trial court must comply with the Attorney General's request for trial by jury. Had the Attorney General or Palmer not demanded a jury trial, the trial shall be before the trial court. See K.S.A. 59-29a06(c).

On appeal, Palmer points out that pretrial motions to dismiss in Kansas exist in both criminal and civil procedure under K.S.A. 2010 Supp. 22-3208(1), (4) (pleadings and motions), K.S.A. 2010 Supp. 60-256 (summary judgment), and K.S.A. 2010 Supp. 60-212 (defenses and objections). Also, Palmer acknowledges that there is no specific statute in the Act that creates such a remedy between the trial court's probable cause determination under K.S.A. 59-29a05 and completion of a trial under K.S.A. 5929a06(a).

This brings up our second reason for rejecting Palmer's argument. Summary judgment is not available to either the State or the respondent in proceedings to determine if someone is a sexually violent predator after a probable cause finding. K.S.A. 2010 Supp. 60-256 and Supreme Court Rule 141 (2010 Kan. Ct. R. Annot. 228) set out the steps a party must take when seeking summary judgment. The State makes a valid point here that surely a motion for summary judgment by the State on the merits of a sexually violent predator proceeding is contrary to the spirit of the Act. The clear direction of K.S.A. 59-29a06(a) is that such questions are for trial, either by the court or a jury.

Further, if the respondent seeks summary judgment on the merits, as Palmer did here, it conflicts with the long-standing precedent that "neither the trial court nor this court can or should weigh the relative factual positions of the parties in the context of summary judgment." City of Arkansas City v. Bruton, 36 Kan. App. 2d 42, Syl.

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