In re Care & Treatment of Kristek

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NOT DESIGNATED FOR PUBLICATION

No. 115,148

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Matter of the Care and Treatment of
JAMES D. KRISTEK.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; JEFFREY E. GOERING, judge. Opinion filed October 21,
2016. Affirmed.

Carl F.A. Maughan and Sean M.A. Hatfield, of Maughan Law Group LC, of Wichita, for
appellant.

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

Before MALONE, C.J., SCHROEDER, J., and WALKER, S.J.

Per Curiam: James D. Kristek appeals the jury's determination he is a sexually
violent predator raising three issues on appeal: (1) the sufficiency of the evidence, (2) the
long delay in bringing the case to trial, and (3) cumulative error. In a light most favorable
to the State, the record reflects more than sufficient evidence to support the jury verdict
beyond a reasonable doubt. The record does reflect a long delay before the jury trial
occurred, but the record also reflects the delay between February 2012 and July 2015 was
caused by Kristek for multiple reasons as he prepared for the jury trial. We find no error
and affirm.

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FACTS

On September 13, 2011, the State filed a petition pursuant to the Kansas Sexually
Violent Predator Act, K.S.A. 59-29a01 et seq., alleging Kristek may meet the criteria of a
sexually violent predator. The district court found there was probable cause to believe
Kristek was a sexually violent predator and set the jury trial for February 23, 2012.

On May 15, 2012, an order appointing a psychologist to conduct an independent
evaluation was filed, and the trial date was continued to May 29, 2012. Kristek's counsel
continued the trial four more times, to October 22, 2012, as he was having difficulty in
obtaining the expert evaluation and report.

On October 12, 2012, Kristek filed a pro se motion for ineffective assistance of
counsel. He alleged his trial counsel failed to act with reasonable diligence and
promptness. The motion was set for hearing on October 26, 2012, but was continued until
November 2, 2012. The hearing on the motion was continued and was ultimately heard
on January 25, 2013. With the pending motion, Kristek's trial date was also continued
until after the pro se motion was resolved.

At the hearing on January 25, 2013, Kristek argued his trial counsel was not
communicating with him and also argued he had "been here 11 months and I should have
had speedy trial by now." Kristek also indicated he had not been seen by an independent
evaluator yet. Although the district court expressed concern over the length of time the
case had been ongoing, the district court ultimately denied Kristek's motion.

In March 2013, Kristek filed a second pro se motion alleging ineffective assistance
of counsel and the district court appointed Kristek new counsel. With the appointment of
new counsel, Kristek's trial was continued.

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In July 2013, the district court entered another order for an independent
examination and appointed a psychologist to examine Kristek. In August 2013, Kristek
filed a pro se motion for discovery. His trial was continued to October and then again to
February 10, 2014. On February 10, 2014, the trial was continued because Kristek's
counsel had "just recently found a doctor to evaluate the Respondent and therefore
need[ed] additional time to get the evaluation completed."

On March 20, 2014, the district court ordered another independent examination
and appointed Dr. Robert Barnett to examine Kristek. It also continued Kristek's trial date
per his counsel's request. Kristek's trial was continued three additional times while
waiting for Dr. Barnett's examination and report. His trial was then continued for further
discovery.

On December 23, 2014, Kristek sent the district court a letter alleging his speedy
trial rights had been violated since he had been in jail awaiting his trial for 39 months. He
alleged he was unaware his trial had been continued, he was never informed it had been
continued, and he was never present when his case was continued.

On March 20, 2015, the district court continued Kristek's trial to July 13, 2015.
Between February 23, 2012, and July 13, 2015, when his trial finally occurred, Kristek's
case was continued 21 times. The record indicates each continuance was attributed to
Kristek's counsel as they tried to obtain an expert evaluation and report or found the need
to conduct additional discovery as the case developed.

On July 2, 2015, Kristek filed a petition for immediate release, arguing his speedy
trial rights were violated. At the hearing on the petition for immediate release, the district
court found the proceedings were civil in nature and the statutory provisions of the
Kansas Code of Criminal Procedure did not apply. Further, the district court found the
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continuances were caused by Kristek or his counsel and were in his best interest. The
district court denied Kristek's petition.

At trial, the State presented evidence Kristek was convicted of four counts of
aggravated indecent liberties with a child under the age of 14 and one count of attempted
aggravated indecent liberties. Kristek testified he completed Sexual Offender Treatment
Program (SOTP) training—usually an 18-month program—in 8 months but received a
poor prognosis. Kristek testified SOTP training was "a joke." He also testified regarding
his victims and what attracted him to his victims, often indicating he did not know what
attracted him to his victims.

Dr. Stephanie Adam evaluated Kristek for the State. She testified about the various
tests she administered, including the Wide Range Achievement Test, the Aggression
Questionnaire, the Minnesota Multiphasic Personality Inventory, the Trauma Symptom
Inventory, the Millon Clinical Multiaxial Inventory, the Beck Hopelessness Scale, and
the Beck Depression Inventory. The tests are all peer reviewed and widely accepted by
psychologists.

Dr. Adam testified that using clinical judgment, standing alone, was not a widely
accepted method of determining whether someone has a mental abnormality or
evaluating the risk that someone would reoffend. Dr. Adam also administered the Static-
99R and the Static-2002R to determine whether Kristek posed a risk of reoffending. Both
the Static-99R and the 2002R are peer reviewed and widely accepted by other
psychologists.

Dr. Adam determined Kristek scored a 4 on the Static-99R, which placed him in
the moderate-high risk category to sexually reoffend. Dr. Adam admitted there was some
concern about the reliability of the Static-99R but indicated it was widely used. Kristek
scored a 5 on the Static-2002R, which equates to a moderate risk of reoffending
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compared to other sex offenders. Dr. Adam testified she believed the Static-99R and the
Static-2002R underestimated an individual's likelihood to reoffend because it only
measures individuals who have been later caught and charged with another crime.

Dr. Adam diagnosed Kristek with pedophilia, sexually attracted to both genders,
nonexclusive type, and a personality disorder not otherwise specified with narcissistic
features. She believed Kristek's pedophilia predisposed him to commit repeat acts of
sexual violence and Kristek was a menace to the health and safety of others. In her
opinion, Kristek was unable to control his behavior.

Dr. Jane Kohrs also performed an evaluation of Kristek at the request of the State.
Dr. Kohrs also administered a Static-99R to evaluate Kristek and also scored him as a 4.
She also noted other risk factors, including emotional identification with children, sexual
preoccupations, intimacy deficits, and having a personality disorder, that increased his
risk of engaging in repeat acts of sexual violence. Dr. Kohrs diagnosed Kristek with
pedophilia, nonexclusive type, and a personality disorder not otherwise specified with
dependent features. Like Dr. Adam, Dr. Kohrs indicated she believed Kristek's pedophilia
made him predisposed to engage in repeat acts of sexual violence and he was unable to
control his behavior.

After the State rested, Kristek called his expert witness, Dr. Robert Barnett, who
testified he reviewed Dr. Adam's and Dr. Kohrs' reports as well as some documents
Kristek provided. Though he conducted some testing, Dr. Barnett did not feel the need to
repeat or replicate testing that had already been done. Dr. Barnett disagreed Kristek was a
pedophile and testified:

"Well, pedophilia is a really dire diagnosis. In my experience I've evaluated a lot of
pedophiles who very much established as such. There's a lot of clinical lore and a lot of
clinical information that's not necessarily part of the definition in the DSM. I should note
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that the DSM in the preface to it states very clearly that it should not be—it's not intended
to replace clinical judgment, so I think I'm on firm footing when I say clinical judgment
is very important in these cases.
"Pedophiles, the pedophiles that I've known have been very outspoken about
their interest in children and their intent to return to a life of pursuing children and having
sex with them once they're released from custody. They almost always have large
collections of child pornography. They almost always work or pursue hobbies in
situations that would place them in close proximity to children. Now, I acknowledge that
in some cases and some ways Mr. Kristek has some of these characteristics, but he
certainly doesn't have the full panoply and most of the characteristics that we're talking
about occurred a number of years ago."

Dr. Barnett admitted the Static-99R was widely used but indicated use of the
Static-99R is controversial because it is good at predicting group behavior but not an
individual's behavior. Dr. Barnett also pointed out that a moderate-high risk of
reoffending indicated somewhere between an 8% and 18% chance of reoffending. Dr.
Barnett testified he did not believe Kristek met the legal definition of a sexually violent
predator because he did not have a mental abnormality or personality disorder and
Kristek was capable of controlling his behavior.

The jury found Kristek to be a sexually violent predator subject to involuntary
commitment. Kristek timely appealed.

ANALYSIS

Kristek is a sexually violent predator.

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

"(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
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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. See K.S.A. 2010 Supp. 59-29a02(a); [Kansas
v.] Crane, 534 U.S. [407,] 413, [122 S. Ct. 867, 151 L. Ed. 2d 856 (2002)]; PIK Civ. 4th
130.20." In re Care & Treatment of Williams, 292 Kan. 96, 106, 253 P.3d 327 (2011).

When the sufficiency of evidence is challenged in a sexually violent predator case,
the appellate court

"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. [Citations omitted.] As an appellate court, we will not reweigh the
evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence.
[Citations omitted.]" In re Williams, 292 Kan. at 104.

Kristek argues no reasonable factfinder could have found beyond a reasonable
doubt he was a sexually violent predator. Specifically, he argues "most of the evidence
offered by the State was based on questionable expert testimony that was brought into
question by Mr. Kristek's own expert witness, who was equally qualified." Thus, Kristek
is asking this court to redetermine whether the State's experts or Kristek's expert was
more credible and to resolve the conflict in the evidence. However, making credibility
determinations and resolving conflicts in the evidence is the jury's duty, not the court's. In
re Williams, 292 Kan. at 104.

Further, when all of the evidence is viewed in the light most favorable to the State,
a rational factfinder could reasonably find the State met its burden to demonstrate beyond
a reasonable doubt that Kristek was a sexually violent predator. The record reflects:

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 Kristek admitted to being convicted of four counts of aggravated indecent
liberties with a child under the age of 14 and one count of attempted
aggravated indecent liberties;
 Both Dr. Adam and Dr. Kohrs testified they diagnosed Kristek with
pedophilia;
 Dr. Adam and Dr. Kohrs testified Kristek was likely to reoffend; and
 Both Dr. Adam and Dr. Kohrs testified Kristek was unable to control his
dangerous behavior.

The jury's verdict finding Kristek was a sexually violent predator beyond a reasonable
doubt is supported by the evidence in the record.

No speedy trial violations

Kristek alleges the district court erred when it denied his motion to dismiss for
speedy trial violations. He argues his constitutional speedy trial rights and his procedural
due process rights were violated. The State argues the district court correctly denied
Kristek's motion to dismiss because the delay between the filing of the State's petition
and trial was all attributable to Kristek.

Sexually violent predator commitment proceedings are civil actions, not criminal
proceedings. See Kansas v. Hendricks, 521 U.S. 346, 369, 117 S. Ct. 2072, 138 L. Ed. 2d
501 (1997). As such, the Sixth Amendment to the United States Constitution and § 10 of
the Kansas Constitution Bill of Rights do not apply. See U.S. Const. amend. VI ("In all
criminal prosecutions . . . ."); Kan. Const. Bill of Rights, § 10 ("In all prosecutions . . .").
This is a civil action; thus, Kristek had no statutory or constitutional right to be present
when the many continuances were requested by his two attorneys.

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Although a sexually violent predator commitment proceeding is a civil action, it
substantially impairs a liberty interest protected by the Due Process Clause of the
Fourteenth Amendment to the United States Constitution. In re Care and Treatment of
Ellison, 51 Kan. App. 2d 751, 753, 359 P.3d 1063 (2015), rev. granted February 22,
2016. As a result, commitment proceedings must be accompanied by procedural due
process protections to prevent a wrongful deprivation of liberty. 51 Kan. App. 2d at 753.
To satisfy procedural due process, a person must "be afforded a right to be heard in a
meaningful way before being deprived of 'life, liberty, or property.'" 51 Kan. App. 2d at
753 (quoting U.S. Const. amend. XIV, § 1). A hearing is not "constitutionally
'meaningful' if it is materially delayed and, thus, untimely." 51 Kan. App. 2d at 753-54,
(citing Cleveland Board of Education v. Loudermill, 470 U.S. 532, 547, 105 S. Ct. 1487,
84 L. Ed. 2d 494 [1985]).

The multifactor test to assess speedy trial rights found in Barker v. Wingo, 407
U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), applies to determine whether
procedural due process was satisfied in sexually violent predator commitment
proceedings. In re Ellison, 51 Kan. App. 2d at 755. Barker identified four factors to
evaluate the delay in bringing a defendant to trial: "Length of delay, the reason for the
delay, the defendant's assertion of his right, and prejudice to the defendant." 407 U.S. at
530. None of the factors, standing alone, is sufficient for finding a deprivation of the
defendant's right—the factors must be considered together along with any other relevant
circumstances. 407 U.S. at 533.

In In re Ellison, the district court granted Ellison relief after considering only the
length of the delay was attributable to the State while Ellison was in jail awaiting the
trial. The district court did not address any of the other Barker factors with particularity.
On appeal, the panel remanded the case to the district court, stating:

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"Absent findings on those factors, we cannot affirm the district court's decision that the
State violated Ellison's due process rights. Nor can we say the district court erred in its
ultimate conclusion. We, therefore, must remand for further proceedings entailing, at the
very least, more specific findings tailored to the Barker considerations." In re Ellison, 51
Kan. App. 2d at 756.

Here, the district court did not mention Barker or specifically discuss the Barker
factors in denying Kristek's motion to dismiss. While it did not address the length of the
delay or Kristek's assertion of his right to a timely adjudication, the district court did
touch upon the reason for the delay and the prejudice to the defendant. The district court
found, in relevant part:

"To the extent that there is a constitutional analysis required, the Court would
find that these matters, these continuances have not been at the request of the State. They
have been at the request of Mr. Kristek or his counsel. They have been evaluated by the
Court. In many cases—well, I won't say in many cases. In some cases over the objection
of the State of Kansas. And in some cases the requests were prejudicial to the State of
Kansas, but, nevertheless, the Court granted them anyway because the Court determined
at the time the requests were made that they were in the best interest of Mr. Kristek and
in the best interest of having an error-free trial."

In considering Kristek's motion to dismiss, the district court did not make specific
findings regarding each Barker factor, but its analysis is sufficiently close. Remand is
unnecessary because the record clearly shows Kristek was not entitled to relief as all of
the delays and continuances were caused by him and correctly charged to him.

Length and reason for delay


Here, the delay between Kristek's probable cause hearing and his commitment trial
was more than 3 years and 9 months. However, the delay caused by a court-ordered
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continuance should generally be attributed to the party requesting the continuance. In re
Ellison, 51 Kan. App. 2d at 757.

In this case, the delay of more than 3 years is entirely attributable to Kristek. Most
of the continuances are not included in the record. However, according to the record on
appeal, Kristek's counsel requested every continuance between his probable cause
hearing and his actual jury trial. From February 2012 until June 2014, Kristek's counsel
repeatedly continued the trial dates to secure an independent evaluation and an expert
report. In September 2014, Kristek's counsel prepared an agreed order continuing the trial
date so the parties could conduct further discovery. Kristek's counsel—with Kristek
present and without objection—continued the trial from April 2015 to July 13, 2015, so
Dr. Barnett would be available to testify in person.

Kristek argues many of the continuances were done without his knowledge and
were not communicated to him, but he has failed to provide any authority requiring his
knowledge or presence when the request was made. Failure to support a point with
pertinent authority or show why it is sound despite a lack of supporting authority or in the
face of contrary authority is akin to failing to brief the issue. University of Kan. Hosp.
Auth. v. Board of Comm'rs of Unified Gov't, 301 Kan. 993, 1001, 348 P.3d 602 (2015).

Assertion of speedy trial rights

Kristek first asserted a statutory speedy trial right in a pro se motion to dismiss on
April 11, 2012, arguing he had to be brought to trial within 60 days of his probable cause
determination. Kristek again asserted a statutory speedy trial right in a pro se motion to
dismiss on June 21, 2012. Kristek asserted statutory speedy trial rights in these motions,
not a procedural due process right to be heard in a meaningful time. Kristek asserted a
constitutional speedy trial right in letters to the court filed December 23, 2014, and May
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20, 2015. Kristek asserted a due process violation in his petition for release filed on July
2, 2015.

While delays prior to the assertion of a due process right to timely adjudication
cannot be ignored, the delay has less significance in the constitutional analysis. In re
Ellison, 51 Kan. App. 2d at 758-59. After an offender asserts his due process right to
timely adjudication, any delays attributable to the State should be weighed heavily
against the State and in the offender's favor. 51 Kan. App. 2d at 758. As discussed above,
the State requested none of the continuances and actually objected to some of them. Thus,
the delay cannot weigh heavily against the State in this analysis.

Prejudice

Prejudice should be assessed in light of a defendant's interest in preventing
oppressive pretrial incarceration, minimizing anxiety and concern of the accused, and
limiting the possibility that the defense will be impaired. The most serious interest is in
limiting the possibility that the defense will be impaired. Barker, 407 U.S. at 532.

Kristek argues the delay was presumptively prejudicial because he has been '''held
in prison, shackled in public and subject to hardships with no convictions, no sentence
and with limited access to mental health treatment, all awaiting a determination of
whether he is a mentally ill person who requires ongoing treatment'" for more than 3-1/2
years. Without discounting the seriousness of spending 3-1/2 years in jail, the delay was
at Kristek's request and for his benefit. The delay allowed Kristek to secure an
independent evaluation, receive an expert's report, and conduct extensive discovery in
preparation for the jury trial.

The district court did not deny Kristek a meaningful hearing within a meaningful
time.
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No cumulative error

As a final point, Kristek asserts he was denied due process and a fair trial due to
cumulative error. However, the court will find no cumulative error when the record fails
to support the errors the defendant raises on appeal. State v. Marshall, 303 Kan. 438, 451,
362 P.3d 587 (2015). The record indicates there was sufficient evidence for a rational
factfinder to conclude the State met its burden to prove Kristek was a sexually violent
predator beyond a reasonable doubt. Further, the record indicates the delay between
Kristek's probable cause determination and hearing were caused by Kristek or his
attorneys. With no errors, there cannot be cumulative error. Kristek's argument fails.

Affirmed.