In re Care & Treatment of Burch

NOT DESIGNATED FOR PUBLICATION

No. 116,600

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Matter of the Care and Treatment of
TIMOTHY BURCH.

MEMORANDUM OPINION

Appeal from Wyandotte District Court; CONSTANCE ALVEY, judge. Opinion filed September 8,
2017. Affirmed.

Timothy J. Burch, appellant pro se.

Dwight R. Carswell, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before MALONE, P.J., LEBEN and BRUNS, JJ.

LEBEN, J.: Timothy J. Burch was civilly committed to the Sexual Predator
Treatment Program at Larned State Hospital in 2002. Ten years later, he petitioned the
district court for transitional release from that program. After a trial in May 2015, a jury
found that it wouldn't be safe to release him.

Burch appeals, arguing that the evidence wasn't sufficient to support the jury's
conclusion. After reviewing the evidence, we must disagree with Burch; while one expert
testified that it would be safe to release him, the State's expert said that it wouldn't be. It
was also undisputed that Burch hadn't participated in the treatment program since 2009.
So a reasonable jury could have concluded that the State had proved beyond a reasonable
doubt that Burch's mental abnormality or personality disorder remained such that it
wouldn't have been safe to release him and that he'd be likely to commit acts of sexual
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violence if released. As an appellate court, we cannot reweigh the evidence presented at
trial; that's the job of the fact-finder, here a jury. We therefore affirm the district court's
judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In 1989, Burch pled guilty to and was convicted of several sex crimes involving
teenage boys, including aggravated criminal sodomy, indecent liberties with a child, and
sexual exploitation of a child. After Burch served his prison sentence, the State asked the
district court to civilly commit Burch to the Sexual Predator Treatment Program at
Larned State Hospital. Burch stipulated that he met the statutory definition of a "sexually
violent predator" based on his criminal convictions and his diagnosis of pedophilia, and
the district court civilly committed him. Kansas law defines the term "sexually violent
predator" to mean "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" K.S.A. 2016 Supp.
59-29a02(a). Burch has remained involuntarily committed at Larned State Hospital since
June 2002.

In 2012, the district court appointed Dr. Robert Barnett, a licensed clinical
psychologist who has experience diagnosing sex offenders and does not work within the
Sexual Predator Treatment Program, to evaluate Burch's mental condition. Dr. Barnett
concluded that Burch "did not meet the diagnostic criteria for pedophilia" and would "be
a good candidate for conditional release." Based on this evaluation, Burch filed several
motions asking the court for transitional or conditional release from Larned State
Hospital. In May 2013, the State agreed that based on Dr. Barnett's evaluation, there was
probable cause for a full evidentiary hearing to determine whether Burch was ready for a
transitional release. At a hearing on that issue, the State would have the burden to prove
beyond a reasonable doubt that Burch's "mental abnormality or personality disorder
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remains such that [he] is not safe to be placed in transitional release and if transitionally
released is likely to engage in acts of sexual violence." K.S.A. 2016 Supp. 59-29a08(c).

Two years later, in May 2015, the district court conducted a jury trial on Burch's
petition for transitional release. Because Burch's appeal challenges the sufficiency of the
evidence, we review the trial testimony in detail, beginning with a description of the
Sexual Predator Treatment Program.

Keri Applequist, a licensed clinical psychotherapist who had worked in the
treatment program since 1998, testified about the nature and structure of the program. At
minimum, the residents participate in 2 to 3 hours of group therapy per week and see
their individual therapist once a quarter. The program has five phases that take place in
the secured facility of Larned State Hospital and two that take place elsewhere. See
generally In re Care & Treatment of Burch, 296 Kan. 215, 220-21, 291 P.3d 78 (2012).

Phase one is an orientation phase that usually spans a resident's first 6 to 9 months
in the program. In phase two, the residents take core classes on relapse prevention,
cognitive skills relationship skills, and anger management; participate in psychotherapy
groups; and review their own sexual history. In phase three, the residents take advanced
core classes, begin working on their relapse-prevention plans, and take polygraphs about
victim disclosure and sexual history. In phase four, residents complete their relapse-
prevention plans and add letters related to future employment and support networks out
in society.

After phase four, residents appear before the progress-review panel made up of
people from outside the treatment program, and the panel decides whether the resident is
ready to move to phase five. Phase five includes classes on community reintegration and
job skills as well as a series of escalating community outings. The outings help address
residents' fears and anxieties about being out in regular society and allow therapists to
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observe the residents' reactions and behaviors around other people and children. The first
community outings are trips within the grounds of Larned State Hospital. Then the
residents go on dining outings to nearby restaurants, then on shopping outings, and then
on activity outings. After each community outing, residents must complete "debriefing
forms" and participate in debriefing conversations about their experiences.

After completing phase five, the resident meets with the progress-review panel
again, and the panel decides if the resident is ready for phase six, which involves moving
to a reintegration facility at another state hospital. The details about phase seven aren't
clear from the record in our case, but the Kansas Supreme Court has described it as a
"transitional release" in which "the committed person remains in [State] custody but lives
independently or in a halfway house under State supervision." Burch, 296 Kan. at 220.

Aside from these phases of treatment, at any point during treatment at Larned, a
resident can petition the court for transitional release from the program. See K.S.A. 2016
Supp. 59-29a08. Conditional release follows transitional release and involves a minimum
of 5 years of court supervision but no further participation in the treatment program. Final
discharge follows conditional release. See L. 2017, ch. 83 (amending the Kansas Sexually
Violent Predator Act to clarify the order of transitional release, conditional release, and
final discharge).

Applequist said there were then 232 people in the Sexual Predator Treatment
Program, with 15 to 20 people being added each year. She said most of the 232 were still
in treatment at Larned, but six were at the reintegration facilities, two were on transitional
release, six were on conditional release, and three had been finally discharged from the
program.

She testified that she had begun treating Burch in October 2005 when he had
advanced to phase four. She said that he did well in phase four and moved on to phase
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five, in which he completed all of the Larned-based outings, all of the dining outings, and
some of the shopping outings, but didn't get to the activity outings. She said she attended
a few community outings with Burch and didn't observe any behaviors of a sexual nature.
Applequist said that while in this phase, Burch began having a lot of anxiety related to
the outings; she said that Burch did not like filling out the required paperwork after the
outings and would ask for extra time to complete it on his own. She said that Burch was
anxious about the level of scrutiny applied to the outings and "was not comfortable
sharing emotional issues in groups or on the outing paperwork." Applequist also
described Burch as anxious about whether he would progress to the next phase but
unwilling to talk about that anxiety (although she also said he had begun asking for extra
individual therapy). Overall, she said that Burch struggled in phase five.

In January 2008, while still in phase five, Burch was caught with several items he
wasn't permitted to have—a glass cologne bottle and two inappropriate movies (one with
sexual themes and frontal male nudity and one foreign film featuring young boys at a
boarding school). (The movies had initially been approved but were later said by program
staff to be inappropriate.) According to Applequist, Burch wasn't actually moved to a
lower phase because of this incident, but the incident made Burch so angry that he
stopped participating in the program. Because he had stopped participating in the
program, he was reduced to phase four in January 2009.

Burch agreed that he had stopped participating in the treatment program. He
testified that because he had been through phases three and four before, he didn't need to
go through them a second time. He characterized his attitude toward the program as
"frustrated." He testified that he had benefited from the treatment program but that there
was nothing more for him to learn there. He said that he hadn't updated his relapse-
prevention plan (a 62-page document) since finishing it in 2006; he said he didn't see a
reason to do so, because his conditions hadn't changed.

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Applequist testified that she hadn't seen Burch since he had been reduced to phase
four in January 2009. Thus, she said that she had no opinion about whether Burch's
mental abnormality or personality disorder remained such that he needs to be in secure
confinement as opposed to transitional release. She did say that generally speaking, she
wouldn't recommend a person for release if that person hadn't updated a relapse-
prevention plan and had stopped working the program.

Dr. Okey Nwachukwu-Udaku, who goes by Dr. Okey, also testified. He has
worked at Larned since 2010. Burch is one of his patients, and he said he was familiar
with Burch's treatment records. He confirmed that Burch didn't participate in the
treatment program: he didn't go to group therapy, didn't journal his sexual fantasies,
didn't go to individual therapy, and didn't take polygraphs. Dr. Okey testified that a
refusal to participate in treatment increases the chances of reoffending. He said that
Burch's diagnoses—psychopathy, pedophilia, antisocial personality disorder, and
narcissistic personality disorder—remained unchanged. He called them "lifetime"
diagnoses and noted that while they will never change, treatment can lower the risk level
created by them. In Dr. Okey's view, Burch hadn't fully addressed his underlying
diagnoses; Dr. Okey said that the incident with the inappropriate videos and Burch's
refusal to participate in the program led him to conclude that Burch was not safe to be
placed in a less restrictive environment. Dr. Okey also said that Burch was likely to
commit acts of sexual violence if released into the community and that Burch's
psychopathy, in particular, increased the likelihood that he would reoffend. Dr. Okey did
admit that his opinion was based only on reviewing Burch's records because he'd only
seen Burch once in the last year and hadn't been able to evaluate him. Burch admitted that
he had refused to be evaluated by Dr. Okey.

Dr. Barnett also testified. He is a clinical psychologist based in Lawrence and
Topeka with experience in diagnosing sex offenders. He evaluated Burch in 2002 (when
Burch was committed) and in 2012.
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Dr. Barnett disagreed with Burch's diagnoses of pedophilia, antisocial personality
disorder, and narcissism. He said that Burch's scores on a diagnostic test for psychopathy
showed that he didn't suffer from that condition, either. He testified that Burch had been
overdiagnosed and cited the American Psychiatric Association's position that "there is no
diagnosis that implies the inability to control sexual behavior." In Dr. Barnett's opinion,
Burch was fully capable of controlling his own behavior and was safe to be placed in
transitional release. Dr. Barnett's only diagnosis was that Burch suffered from alcohol
and substance abuse but had been in remission for 25 years.

After the State presented its evidence, Burch's lawyer asked for a directed verdict,
arguing that the State hadn't presented sufficient evidence for the jury to find in its favor.
The district court denied that motion. The jury found that Burch's mental abnormality or
personality disorder remained such that he wasn't safe to be transitionally released and
that, if transitionally released, Burch was likely to engage in acts of sexual violence.

Burch has appealed to our court.

ANALYSIS

Burch's brief—which he wrote himself, without an attorney—lists two issues for
this appeal. He challenges both the district court's denial of his motion for a directed
verdict (which is now called "judgment as a matter of law") and the sufficiency of the
evidence supporting the jury's verdict.

When reviewing the denial of a motion for judgment as a matter of law, we ask
whether evidence existed from which a reasonable jury could find in favor of the
nonmoving party (here, the State). Siruta v. Siruta, 301 Kan. 757, 766, 348 P.3d 549
(2015). We also take into account the State's burden of proof; here the State had to prove
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its case beyond a reasonable doubt. See K.S.A. 2016 Supp. 59-29a08(c). We ask
essentially the same question when reviewing the sufficiency of the evidence: Are we
convinced that a reasonable jury could have found the State met its burden to prove
beyond a reasonable doubt that Burch wasn't safe to be released? See In re Care &
Treatment of Williams, 292 Kan. 96, 104, 253 P.3d 327 (2011).

Since both of Burch's issues ask the same question about the sufficiency of the
evidence, we will address them together. And because the jury found in favor of the
State, when reviewing the evidence, we must look at it the light most favorable to the
State. We cannot reweigh the evidence or express an opinion about the credibility of
witnesses. Williams, 292 Kan. at 104.

The State was required to prove beyond a reasonable doubt that Burch's mental
abnormality or personality disorder remained such that he was not safe to be placed in
transitional release and if transitionally released he was likely to engage in acts of sexual
violence. See K.S.A. 2016 Supp. 59-29a08(c). Dr. Okey's expert testimony provided the
most support for the State's position. He said that Burch's diagnoses—psychopathy,
pedophilia, antisocial personality disorder, and narcissistic personality disorder—
remained unchanged. And he testified that in his opinion, Burch wasn't safe to be
transitionally released and if released would likely engage in acts of sexual violence. He
said Burch's psychopathy diagnosis in particular made Burch more likely to reoffend.

There was also clear evidence that Burch had stopped participating in the
treatment program in 2009, which suggested that Burch's underlying diagnoses hadn't
been fully treated. While Applequist couldn't give an opinion about Burch specifically,
she testified that as a general matter, she wouldn't recommend someone for release if that
person had stopped participating in treatment. In addition, Applequist testified Burch
began struggling in the program during the phase-five community outings, which further
suggested that he wasn't ready for transitional release. Based on this evidence, a jury
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could have concluded, beyond a reasonable doubt, that Burch's mental abnormality or
personality disorder remained such that he wasn't safe to be transitionally released and if
released was likely to engage in acts of sexual violence.

Burch claims that Dr. Okey's opinions weren't valid because the doctor had
previously declined to give an opinion about whether Burch should be released and
because he never actually examined Burch. Burch argues that the jury should have relied
on Dr. Barnett's testimony instead since Dr. Barnett was the only doctor who evaluated
Burch for this trial. Burch accurately notes that Dr. Okey's opinion at trial—that Burch
wasn't safe to be transitionally released—was inconsistent with his statement in a pretrial
deposition that he could not recommend whether Burch should be released.

This inconsistency certainly undermined Dr. Okey's credibility, but when Burch's
lawyer cross-examined Dr. Okey on this subject, Dr. Okey drew a distinction between
"recommending" transitional release (which he couldn't do) and offering an "opinion"
about whether a patient should be released (which he could do). Dr. Okey also explained
that at the time of the deposition, Burch hadn't been one of his patients, so he hadn't had
enough information about Burch to give an opinion. In the year since the deposition,
Burch became one of Dr. Okey's patients.

Of course, Dr. Okey hadn't actually examined Burch, but that was because Burch
refused. Burch argues that Dr. Okey's opinion was based only on a review of Burch's file,
not on an actual examination of Burch, but that was all Dr. Okey could do since Burch
refused to let Dr. Okey examine him. So while the lack of an actual evaluation and the
prior inconsistent statement did undercut Dr. Okey's credibility, we are not able to say
that the jury couldn't rely on his testimony to reach the conclusions it announced in its
verdict. As an appellate court, we do not make credibility decisions. See Williams, 292
Kan. at 104. Dr. Okey's opinion wasn't entirely unreliable, and the jury was entitled to
rely on it rather than Dr. Barnett's opinion.
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Burch also argues that his refusal to participate in the program isn't relevant
because completing the program's many phases isn't required by statute. It's true that the
statute doesn't reference the phases of the treatment program. But the jury was still
entitled to infer from his refusal to participate that he was not safe to be released because
his underlying mental abnormality or personality disorder remained untreated or not fully
treated.

Finally, within his sufficiency argument, Burch claims that district court erred by
not analyzing whether the State had proved beyond a reasonable doubt that Burch
couldn't control his behavior. It is true that to prove a person is a sexually violent predator
(and thus is subject to involuntary civil commitment), one of the things the State must
show beyond a reasonable doubt is that the person has serious difficulty controlling his or
her dangerous behavior. See Williams, 292 Kan. at 106. But this particular case isn't
about whether Burch is a sexually violent predator—that determination took place back
in 2002 when Burch was first civilly committed. In this proceeding, the State didn't have
to prove beyond a reasonable doubt that Burch was a sexually violent predator—what it
had to prove was that Burch wasn't safe for transitional release. See K.S.A. 2016 Supp.
59-29a08(c). This is a different question, governed by a different standard: whether "the
committed person's mental abnormality or personality disorder remains such that the
person is not safe to be placed in transitional release and if transitionally released is likely
to engage in acts of sexual violence." K.S.A. 2016 Supp. 59-29a08(c). Even if Burch had
succeeded in this case, he would still be a sexually violent predator—he would just be in
transitional release rather than in the secured facility at Larned State Hospital. Because
this case isn't about whether Burch is a sexually violent predator, the inability-to-control-
behavior element that he points to doesn't apply at this stage of his case.

We affirm the district court's judgment.