No. 91,826
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Matter of the Care and Treatment of ROBERT A. WARD.
SYLLABUS BY THE COURT
1. Under the Kansas Sexually Violent Predator Act (KSVPA), K.S.A. 59-29a07 provides that a court or jury shall determine, beyond a reasonable doubt, whether a person is a sexually violent predator.
2. The use of the word "likely" in the KSVPA's definition of "sexually violent predator" (K.S.A. 59-29a02[a]) does not establish a lesser burden of proof in civil commitment cases than is required under the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
3. A finding of sexual motivation under K.S.A. 59-29a14(b) means that, in addition to the sex crimes listed at K.S.A. 59-29a02(e)(1)-(12), a crime so motivated is a "sexually violent offense" under the KSVPA. K.S.A. 59-29a02(d) and (e)(13). Subsection (e)(13) provides that a finding of sexual motivation may be made either at sentencing in an underlying criminal case or during the KSVPA proceeding.
4. Because the liberty interest in freedom from physical restraint has always been at the core of the liberty protected by the United States Constitution's Fourteenth Amendment Due Process Clause, civil involuntary commitment is permissible only if the confinement takes place pursuant to proper procedures and evidentiary standards.
5. Remarks of counsel in a civil case result in reversible error when, because of them, the parties have not had a fair trial.
6. An attorney's misconduct during closing argument which is inconsistent with substantial justice, affects substantial rights, and denies the respondent the right to a fair trial in a KSVPA commitment proceeding constitutes reversible error.
7. Under the facts of this case, it was reversible error for the State's attorney in a KSVPA commitment proceeding to appeal to the jurors' personal fears for the safety of their own children and the community's children. This misconduct violated the respondent's right to a fair trial.
Appeal from Johnson District Court; JOHN ANDERSON III, judge. Opinion filed March 31, 2006. Reversed and remanded.
Bob L. Thomas and Megan L. Harrington, of Thomas & Associates LLC, of Olathe, for appellant.
Steven J. Obermeier, assistant district attorney, Paul J. Morrison, district attorney, W. Scott Toth, special assistant attorney general, and Phill Kline, attorney general, for appellee.
Before ELLIOTT, P.J., JOHNSON and BUSER, JJ.
BUSER, J.: Robert A. Ward appeals the jury's verdict that he is a sexually violent predator as defined by the Kansas Sexually Violent Predator Act (KSVPA), K.S.A. 59-29a01 et seq. We reverse and remand for a new trial.
Factual and Procedural Background
On April 27, 2002, Ward was charged in Johnson County District Court with three counts of criminal threat in violation of K.S.A. 21-3419. The complaint identified three dates, February 24, 2002, March 17, 2002, and April 12, 2002, on which Ward called three young girls, M.R., L.K., and K.D., and communicated "a threat to commit violence with the intent to terrorize another, or in reckless disregard of the risk of causing terror in another . . . ." Ward pled guilty to one count of criminal threat (a severity level 9 person felony) on August 23, 2002. In exchange for his guilty plea, the State dismissed the other two counts of criminal threat.
The district court sentenced Ward to the mid-point sentence of 6 months incarceration and, in accordance with the sentencing guidelines, placed him on presumptive probation for 12 months. At the time of sentencing, Ward had already served 166 days in custody. Among the conditions of probation, Ward was ordered to have no unsupervised contact with anyone under 18 years of age, undergo a mental health evaluation, and complete counseling.
After considering evidence presented at the sentencing hearing, the district court stated, "I think the facts show beyond a reasonable doubt that one of the purposes for which the defendant committed the crime was the defendant's sexual gratification and therefore find that this was a sexually violent crime as defined in K.S.A. 22-4902(c)(14)." As a result, the district court ordered Ward to register as a sex offender.
Ward appealed from the registration order, and this court affirmed that ruling in State v. Ward, No. 89,659, unpublished opinion filed February 20, 2004. Rejecting Ward's challenge to the sufficiency of the evidence for purposes of sex offender registration, this court found "all of Ward's comments referenced the genitalia of pre-teenaged girls and Ward's body coming in contact with these girls. There is no way to interpret these statements other than as sexually violent overtures to young girls." Slip op. at 6. Ward did not petition the Kansas Supreme Court for review of this adverse decision.
Ward voluntarily surrendered his probation only 2 days after sentencing and returned to prison to serve the 12 days remaining on his sentence. On October 21, 2002, the day before Ward was scheduled for release from prison, the State filed a petition under the KSVPA. At the December 23, 2002, probable cause hearing held pursuant to K.S.A. 59-29a05, the district court found probable cause to retain Ward in custody for further evaluation. An amended petition was filed on February 7, 2003.
Ward filed two motions to dismiss on July 11, 2003. First, Ward contended the KSVPA was unconstitutional because it defined a "sexually violent predator" as a person who is "likely" to engage in repeat acts of sexual violence. See K.S.A. 59-29a02(a). Ward contended the use of the word "likely" in that definition "creates a burden of proof that is incompatible with the standard imposed by the Supreme Court of the United States and the higher standard Kansas itself requires . . . ." In his second motion to dismiss, Ward argued the State was without jurisdiction because it had not filed a special allegation of sexual motivation as provided by the KSVPA in K.S.A. 59-29a14(a). The district court denied both motions.
Trial commenced in July 2002, but a mistrial was declared when the jury was unable to reach a verdict. The retrial began on November 17, 2003.
Evidence at trial established that Ward had called three young girls on the telephone and, during the course of the conversations, had asked the girls vile and lascivious questions. These questions related to Ward describing deviant sex acts he could perpetrate upon the girls and the pain and injury those acts would cause to their vaginal and rectal areas. Ward told K.D. not to give the phone to her mother or hang up "because he knew where we lived, he knew our names, and he would come and hurt us . . . ." Ward also told L.K. he knew where she lived. Testimony further revealed that shortly before Ward made these calls, he had traveled to New York for penis enlargement surgery.
The State offered into evidence items seized from Ward's home, including numerous pictures of young girls dressed in swimming or gymnastics attire. In addition to the photographs, Ward possessed materials regarding area dance and gymnastics clubs and a program from a local gymnastics competition held April 13-14, 2002. Some of the victims were listed in this program.
Ward had attended the gymnastics competition on April 13, 2002, and videotaped several of the competitors. This occurred the day after Ward called K.D. who attended that competition. A representative selection of videotapes seized from Ward's home revealed he focused the camera almost exclusively on girls' pelvic areas. K.D.'s mother testified that her daughter no longer competes in gymnastics for fear of who might be watching her.
The State offered the journal entry of judgment from Ward's criminal case into evidence. The journal entry included the question "Was the crime sexually motivated?" The box for "Yes" was checked, and the journal entry was signed by the sentencing judge, prosecutor, and Ward's counsel.
The State presented the expert testimony of Rex Rosenberg, "a licensed master's level psychologist and licensed clinical psychotherapist at State Security Hospital at Larned." Rosenberg had conducted sexual predator evaluations since 1996. At the time of trial, he had been named the sexual predator evaluation coordinator for the Larned State Security Hospital.
Rosenberg testified that Ward's conviction for criminal threat was "determined to be sexually motivated." The State also used Rosenberg's testimony to provide a detailed account of Ward's sexual history. Ward had told Rosenberg that he became curious about sex at age 5, began masturbating at age 7, and continued this practice nearly every day until he was incarcerated. Ward was 47 at the time of trial. Ward described his "gymnastics fetish" to Rosenberg, which first developed in his early teenage years when he furtively watched a gymnastics practice and clipped a photograph from a yearbook for masturbatory fantasies.
In the mid-1980's, Ward worked at a summer camp and started noticing younger teenage girls. Rosenberg recounted that Ward told him, "'Once you start looking down, where does it end?'" and "'You start with 16, then 14, and then, unfortunately, I started looking at younger ones in that way.'" Ward said he started noticing how "provocatively" 10- to 12-year-old girls were dressed in certain areas of New York, where he lived in the 1990's. Ward taught elementary school, and he told Rosenberg that when he saw some of his students, he "went 'oo-la-la.'"
Ward told Rosenberg that the pictures recovered from his house were used for masturbatory purposes. Ward described how, while living in New York, he would take pictures of females on public streets when he saw "something that stunned [him] that was so beautiful . . . ." The females ranged in age from about 11 to 40. Ward said he started using pictures out of magazines and catalogs because "the quality of the images and the quality of the models" were higher. Ward said that "eventually he would get rid of the collection that he had" because he was "disgusted with what he was doing." Ward always started a new collection, however, and he noted the collection seized by the police was his largest ever.
Ward admitted to videotaping at beaches and gymnastics meets. Ward told Rosenberg he intended to use the videotapes for masturbatory fantasies. Ward also said he had visited at least 100 gymnastics web sites and 30 ice skating web sites. Ward told Rosenberg the web sites "were being put together for the purposes of having males go into them looking for provocative pictures." Rosenberg testified Ward used pictures from the web sites "for sexual arousal and for masturbatory purposes."
Ward denied exclusive interest in children. Ward found younger females more exciting, however, because they were, in his words, "forbidden fruit." In his testimony at trial, Ward said his "whole sexual life is pretty damn dull whether it's fantasy or not." In contrast, Ward told Rosenberg that he found it "exciting to pretend that he was a bad guy" when calling the girls on the telephone. In addition to speaking with M.R., L.K., and K.D., Ward placed approximately 20 other telephone calls, although not all of them resulted in obscene language.
Rosenberg commented on a Kansas City radio station's recorded telephone calls and interview with Ward while he was in jail. Rosenberg thought the interview showed Ward's lack of insight into the impact his actions had on the victims, and how, in Ward's opinion, "he's being victimized by the DA and the judge and the prison evaluator . . . ."
Among other mental disorders, Rosenberg diagnosed Ward with pedophilia. According to Rosenberg, this disorder made it seriously difficult for Ward to control his behavior. Rosenberg also expressed concern that Ward was beginning to express his fantasies directly, and he believed this escalation would continue. In Rosenberg's opinion, Ward's pedophilia was a mental abnormality that made him likely to engage in repeat acts of sexual violence.
Ward testified in the State's case in chief. He readily admitted to sexual fantasies about prepubescent children, to masturbating while having such fantasies, to the use of photographs and videotapes for this purpose, and to making the videotapes and phone calls to young girls. Ward maintained he had never actually touched a child, however, and that when he fantasized about having intercourse with a child, he pictured himself as a young teenage male he called "Brian Paul." Ward also denied telling Rosenberg that he had an increased attraction to younger children.
Ward generally denied that he suffered from pedophilia. When asked if he needed treatment, Ward responded, "'Spirituality or treatment, . . . one, the other, or both.'" Ward offered no specifics, however, and maintained "I'm not going to spend my life in a mental asylum."
Ward presented testimony from two doctorate level psychologists. The first, Robert W. Barrett, a clinical psychologist, was previously the chief psychologist at the Kansas State Department of Corrections Reception and Diagnostic Center, where he performed psychological evaluations of prisoners. At the time of trial he worked as a board certified forensic examiner, providing psychological screening for various organizations.
Barrett disagreed with Rosenberg's diagnosis of pedophilia, finding instead that Ward had "what's sort of informally called [a] fetish. He's interested in the clothing, provocative clothing on a wide range of women, and it's not children per se that are of particular interest to him." Dr. Barrett's diagnosis was paraphilia, specifically "[i]n this case [Ward] seems to be most interested in the buttocks of women encased in spandex." Dr. Barrett thought it especially significant Ward possessed no child pornography, stating in his experience that this was an almost invariable interest of pedophiles. Dr. Barrett also thought Ward's motivation for the phone calls was not sexual arousal because he had placed them from a public phone, which was contrary to the typical behavior of persons making scatological phone calls.
The second defense expert, clinical psychologist William L. Albott, had worked as a staff psychologist on the general psychiatric unit and a unit for the criminally insane at Larned State Hospital and at Osawatomie State Hospital treating adolescents. He had served on the faculty of the Menninger School of Psychiatry and was formerly president of the Kansas Psychological Association. Dr. Albott collaborated with others to formulate the sex offender treatment program currently in use at the Larned State Hospital.
Dr. Albott's testimony focused on the methodology used by Rosenberg. Dr. Albott thought Rosenberg's descriptions of Ward's sexual fantasies had little to do with the triggers which might explain why Ward committed the criminal threats. Dr. Albott characterized some of Rosenberg's testing as invalid, and he found it "puzzling at best and distressing" that Rosenberg drew conclusions from that testing. Dr. Albott claimed Rosenberg's evaluation of Ward's potential to reoffend did not meet American Psychological Association guidelines. Dr. Albott rescored Ward's results from Rosenberg's testing and stated that Ward had "a 10 percent likelihood of reconviction over a 16-year period, not a 36 percent chance" as Rosenberg had determined. Dr. Albott also disagreed with the diagnosis of pedophilia, agreeing instead with the diagnosis offered by Dr. Barnett.
The State presented rebuttal testimony from Gerald H. Vandenberg, a licensed doctorate level psychologist. Dr. Vandenberg, after reviewing Ward's files and listening to some of the Dr. Barnett's testimony, testified that Ward's behavior was "consistent with the diagnosis of pedophilia. I don't want to take the one step farther and say that Mr. Ward is a pedophile, because I haven't examined him . . . ." Dr. Vandenberg disagreed with Dr. Barnett's diagnosis that Ward's condition was limited to paraphilia, stating "this [Ward's behavior] in my opinion goes beyond that." Dr. Vandenberg testified that Ward's telephone calls had "[p]retty ugly sexual content," and that possession of child pornography is not critical to a pedophilia diagnosis.
During closing argument, the State's attorney made numerous comments which are discussed in detail below. He concluded his argument by telling the jury:
"You know, I told you at the beginning of this case that if you've got a reasonable doubt, if you've got a reasonable doubt, you're not going to get on that airplane. And if you go to the airport and you find out that the pilot's got a history of substance abuse, maybe been busted for operating or piloting the plane while under the influence of alcohol or drugs, and you find out that that pilot's never been treated and he's ready to hop back up on that airplane, are you going to put your kids on that airplane? Well, I'm telling you, ladies and gentlemen, Robert Ward's piloting that ship. So you make the decision."
After the jury had been excused for deliberations, Ward's counsel moved for a mistrial due to the State's closing argument. The district court denied the motion. Ward also filed a motion for judgment notwithstanding the verdict based on the State's closing argument which was also denied.
On November 20, 2003, the jury returned its verdict finding beyond a reasonable doubt that Ward was a sexually violent predator. Ward filed a timely appeal.
Due Process Implications of the Definition "Sexually Violent Predator"
Ward first contends the KSVPA is unconstitutional because K.S.A. 59-29a02(a) defines "[s]exually violent predator" as "any person who has been convicted of or charged with a sexually violent offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in repeat acts of sexual violence." According to Ward, "[t]he use of the word 'likely' in the [K]SVPA's definition of a sexually violent predator creates a lesser burden of proof which is incompatible with [the] standard imposed by the Supreme Court and the higher standard Kansas itself requires in the [K]SVPA."
An appellate court's review of statutory interpretation is unlimited. Cooper v. Werholtz, 277 Kan. 250, 252, 83 P.3d 1212 (2004). We begin our review, however, "by remembering our longstanding and well-established rules that the constitutionality of a statute is presumed, that all doubts must be resolved in favor of its validity, and that before a statute may be struck down, it must clearly appear that the statute violates the Constitution. [Citation omitted.]" In re Care & Treatment of Hay, 263 Kan. 822, 831, 953 P.2d 666 (1998).
Due process in civil commitment cases requires a higher standard of proof than preponderance of the evidence. Addington v. Texas, 441 U.S. 418, 431, 60 L. Ed. 2d 323, 99 S. Ct. 1804 (1979). The KSVPA provides the requisite burden of proof for civil commitment is beyond a reasonable doubt. K.S.A. 59-29a07(a) and (e). As a result, Ward concedes the KSVPA requires "a more stringent standard of proof" than mandated by the Constitution.
Ward's complaint, however, is that "the use of the word 'likely' in the [K]SVPA's definition of a sexually violent predator is akin to a preponderance of the evidence standard of proof which has been found by the Supreme Court to be unconstitutional in civil commitment hearings." Ward provides no statutory or case law precedent in support of his novel claim.
"In construing statutes and determining legislative intent, several provisions of an act or acts, in pari materia, must be construed together with a view of reconciling and bringing them into a workable harmony if possible." State ex rel. Morrison v. Oshman Sporting Goods Co. Kansas, 275 Kan. 763, Syl. ¶ 2, 69 P.3d 1087 (2003).
With regard to the challenged statutory language, Ward's argument fails to consider the KSVPA as a whole. As noted by the State, the KSVPA definition of "likely to engage in repeat acts of sexual violence" means "the person's propensity to commit acts of sexual violence is of such a degree as to pose a menace to the health and safety of others." K.S.A. 59-29a02(c). As noted earlier, the ultimate question, whether a defendant is a sexually violent predator, must be proven beyond a reasonable doubt. K.S.A. 59-29a07(a) and (e). Considering these statutory provisions together, the KSVPA requires the court or jury to determine beyond a reasonable doubt that, inter alia, the person poses a menace to the health and safety of others.
Requiring a more exacting definition would mandate a level of certainty beyond that necessary for due process. See Kansas v. Crane, 534 U.S. 407, 411, 151 L. Ed. 2d 856, 122 S. Ct. 867 (2002) ("requiring the State always to prove that a dangerous individual is completely unable to control his behavior . . . is far too rigid."); Addington, 441 U.S. at 430 ("Nor should the state be required to employ a standard of proof that may completely undercut its efforts to further the legitimate interests of both the state and the patient that are served by civil commitments.").
In Addington, the United States Supreme Court suggested that employing a burden of proof similar to the one required under Kansas law may be too demanding as a matter of psychiatry, if not constitutional law: "Given the lack of certainty and the fallibility of psychiatric diagnosis, there is a serious question as to whether a state could ever prove beyond a reasonable doubt that an individual is both mentally ill and likely to be dangerous. [Citations omitted.]" 441 U.S. at 429. Not only did the Supreme Court use the very word "likely," which Ward protests here, it was used to express the Court's opinion that this standard was in all practicality too rigorous. Because the "subtleties and nuances of psychiatric diagnosis render certainties virtually beyond reach in most situations," states are not required under the Fourteenth Amendment to employ the reasonable doubt standard, although they are free to do so. 441 U.S. at 430-31. Addington teaches that the burden of proof standard employed in the KSVPA and the statutory language "likely to engage in repeat acts of sexual violence" in K.S.A. 59-29a02(a), not only meets but exceeds the Constitution's due process requirements in civil commitment cases.
Finally, the United States Supreme Court has specifically considered and approved the due process implications of the KSVPA provisions in two cases. See Crane, 534 U.S. 407; Kansas v. Hendricks, 521 U.S. 346, 138 L. Ed. 2d 501, 117 S. Ct. 2072 (1997).
In Hendricks, the United States Supreme Court held that the KSVPA's definition of "mental abnormality" satisfied due process requirements for civil commitments. Hendricks, 521 U.S. at 371. As part of the Court's holding, the majority referenced language similar to that challenged here ("likely to engage in the predatory acts of sexual violence") as used in the predecessor statute, K.S.A. 59-29a02(a) (Furse 1994). The Court concluded that "[t]he statute thus requires proof of more than a mere predisposition to violence; rather, it requires evidence of past sexually violent behavior and a present mental condition that creates a likelihood of such conduct in the future if the person is not incapacitated." Hendricks, 521 U.S. at 357-58. The Court held: "The precommitment requirement of a 'mental abnormality' or 'personality disorder' is consistent with the requirements of these other statutes that we have upheld in that it narrows the class of persons eligible for confinement to those who are unable to control their dangerousness." Hendricks, 521 U.S. at 358.
Similarly, in Crane, the United States Supreme Court noted: "In Hendricks, this Court upheld the Kansas Sexually Violent Predator Act, Kan. Stat. Ann. § 59-29a01 et seq. (1994), against constitutional challenge. . . . And it held that the statutory criterion for confinement embodied in the statute's words 'mental abnormality or personality disorder' satisfied '"substantive" due process requirements.' [Citation omitted.]" Crane, 534 U.S. at 409.
We hold that the use of the word "likely" in the KSVPA's definition of a sexually violent predator (K.S.A. 59-29a02[a]) does not establish a lesser burden of proof in civil commitment cases than is required under the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
Failure to File Special Allegation of Sexual Motivation
Ward claims error because the State failed to file a special allegation of sexual motivation in his criminal case pursuant to K.S.A. 59-29a14. Ward contends K.S.A. 59-29a14 is "a statutory duty placed on the State" because "[a] criminal defendant has no way of knowing whether the State believes its evidence will lead to a sex predator commitment proceeding." Once again, this issue involves statutory interpretation, and this court's review is unlimited. See Cooper, 277 Kan. at 252.
K.S.A. 59-29a14 provides in part:
"(a) The county or district attorney shall file a special allegation of sexual motivation within 10 days after arraignment in every criminal case other than sex offenses as defined in article 35 of chapter 21 of the Kansas Statutes Annotated . . . when sufficient admissible evidence exists, which, when considered with the most plausible, reasonably foreseeable defense that could be raised under the evidence, would justify a finding of sexual motivation by a reasonable and objective fact finder.
(b) In a criminal case wherein there has been a special allegation, the state shall prove beyond a reasonable doubt that the accused committed the crime with a sexual motivation. The court shall make a finding of fact of whether or not a sexual motivation was present at the time of the commission of the crime, or if a jury is had, the jury, if it finds the defendant guilty, also shall find a special verdict as to whether or not the defendant committed the crime with a sexual motivation."
We begin by noting the hybrid character of this statute. Although located in the probate code, the statute directs when a special allegation of sexual motivation is to be filed in a criminal case. Any finding based upon such an allegation is not used in the criminal case, however, but in the KSVPA proceeding. This distinguishes K.S.A. 59-29a14 from a finding of sexual motivation for purposes of sex offender registration under K.S.A. 2005 Supp. 22-4902(c)(14).
A finding of sexual motivation under K.S.A. 59-29a14(b) means that, in addition to the sex crimes listed at K.S.A. 59-29a02(e)(1)-(12), a crime so motivated is a "sexually violent offense" under the KSVPA. K.S.A. 59-29a02(d) and (e)(13). Importantly, subsection (e)(13) provides that a finding of sexual motivation may be made either at sentencing in an underlying criminal case or during the KSVPA proceeding. K.S.A. 59-29a02(e)(13). These alternative approaches provide the key to interpreting K.S.A. 59-29a14. See Oshman, 275 Kan. 763, Syl. ¶ 2 (the provisions of an act should be construed together in pari materia).
Here, the State did not file a special allegation of sexual motivation within 10 days following Ward's arraignment in the criminal case. Instead, during the KSVPA civil commitment proceeding, the State alleged and the jury determined that Ward's offense was sexually motivated. Given that the KSVPA provides alternative methods for the State to allege and prove sexually motivated offenses, a question arises whether the State was still obliged to file a special allegation in Ward's criminal case.
This issue, however, is not properly before us because Ward has not made a sufficient showing that within 10 days from Ward's arraignment sufficient admissible evidence existed which, when considered with the most plausible, reasonably foreseeable defense under the evidence, could lead a reasonable and objective factfinder to a finding of sexual motivation. See K.S.A. 59-29a14(a).
Ward argues that "sufficient evidence to justify a finding of sexual motivation . . . exist[ed] . . . . The affidavit which accompanied the . . . criminal complaint provided enough information to justify such a finding." There are three reasons, however, why appellate review is not appropriate in this circumstance.
First, the district court did not make findings regarding the state of the evidence, Ward's most plausible, reasonably foreseeable defense, or whether a reasonable and objective factfinder could have found sexual motivation. We are precluded from making such a determination. See Oshman, 275 Kan. at 775 (an appellate court does not weigh the evidence). Second, the State's position at the hearing on this issue was that the applicability of the KSVPA was not obvious at the beginning of the criminal case, and Ward presented no evidence to the contrary. Third, although this court has already held "[t]here is no way to interpret [Ward's] statements other than as sexually violent overtures to young girls," Ward, slip op. at 6, on appeal Ward does not address the statutory requirement to consider this evidence against the most plausible, reasonably foreseeable defense that could be raised. See K.S.A. 59-29a14(a). Even if we were to attempt this analysis, the record contains too little information regarding the criminal case to indicate what, if any, defenses were plausible and reasonably foreseeable at the time a special allegation of sexual motivation was to be filed.
In summary, we are unable to reconstruct the situation which existed within 10 days after arraignment in Ward's criminal case. It was Ward's duty to designate a record "sufficient to establish the claimed error." State ex rel. Stovall v. Alivio, 275 Kan. 169, 172, 61 P.3d 687 (2003). Given the record before us, Ward's claim that the State was required to file a special allegation of sexual motivation in the criminal case does not establish error.
Admission of Prior Judicial Determination that Crime Was Sexually Motivated
Ward contends "[t]he trial court erred when it admitted [during the KSVPA proceeding] a prior judge's finding that [Ward's] underlying conviction for criminal threat was sexually motivated." In particular, Ward complains the district court abused its discretion by the admission of this evidence because "[n]o reasonable person would have agreed that a court's finding of sexual motivation at sentencing, when made solely for the purpose of [Ward's] registration as a sex offender, should have been admissible to prove [Ward] was a sexually violent predator."