In re Care & Treatment of Roberts

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NOT DESIGNATED FOR PUBLICATION

No. 121,288

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Matter of the Care and Treatment of
TIMOTHY WADE ROBERTS.


MEMORANDUM OPINION

Appeal from Osage District Court; DOUGLAS P. WITTEMAN, judge. Opinion filed March 20,
2020. Affirmed.

Kristen B. Patty, of Wichita, for appellant.

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

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

PER CURIAM: The State filed a civil petition alleging that Timothy Wade Roberts
was a sexually violent predator as defined by the Sexually Violent Predator Act (SVPA)
and asking that he be involuntarily committed into the custody of the Secretary for the
Kansas Department for Aging and Disability Services (KDADS). A jury ultimately found
Roberts to be a sexually violent predator within the meaning of the SVPA and therefore
subject to involuntary commitment. Roberts appeals from the jury's finding, claiming that
there was insufficient evidence to support the jury's verdict. Finding no error, we affirm.

FACTS

In 2005, pursuant to a plea agreement, Roberts pled no contest to two counts of
criminal sodomy and was sentenced to 118 months in prison. He was released on parole
twice, once in 2012 and again in 2013 but was returned to prison both times for violating
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the conditions of that parole. He was set to be released from prison on February 19, 2015;
but the day before, the State filed a petition asking that Roberts be declared a sexually
violent predator within the meaning of K.S.A. 2019 Supp. 59-29a02 and civilly
committed into KDADS custody. The matter was continued several times, but a trial
eventually was held in January 2018.

At that trial, three experts gave conflicting opinions as to whether a mental
abnormality or personality disorder made Roberts likely to engage in repeat acts of sexual
violence. Dr. Rebecca Farr, a psychologist from Larned State Hospital, and Dr. Derek
Grimmell, a forensic psychologist with the Kansas Department of Corrections, testified
on behalf of the State while Dr. Lindsay Dees, a clinical psychologist from the military
correctional complex at Fort Leavenworth, testified on behalf of Roberts. Dr. Farr
testified that she conducted a forensic evaluation of Roberts and diagnosed him with
narcissistic personality disorder with borderline features. She based that diagnosis on
Roberts' grandiose sense of self-importance, his exaggeration of his achievements and
talents, and his expectation that he should be recognized as "superior." She also reviewed
his records and identified a pattern of instability in his interpersonal relationships as well
as a tendency to act impulsively in ways that could be harmful to himself and others. Dr.
Farr concluded that Roberts' personality disorder made it likely that he would engage in
repeat acts of sexual violence in the future.

Dr. Grimmell evaluated Roberts just before his release from prison and diagnosed
him with a personality disorder that is "formally characterized as narcissistic and
histrionic traits blended together." He based that diagnosis on Roberts' "repeated
instances of entitlement, emotion-based thinking, rejection of supervision, [and] blaming
[of] people who are trying to hold him accountable." Dr. Grimmell chose not to limit his
diagnosis to a specific type, however, because he believed that Roberts' problems rotated
around both his sense of entitlement, which was a narcissistic trait, and his sexualizing of
relationships, which was a histrionic trait. Although Dr. Grimmell differed slightly from
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Dr. Farr on his exact diagnosis of Roberts' personality disorder, he agreed with her that
his diagnosis would make it likely that Roberts' would engage in repeat acts of sexual
violence in the future.

Dr. Dees conducted a forensic evaluation of Roberts. Although she identified both
narcissistic and histrionic traits in him, she did not believe they were enough to establish
a personality disorder. She believed Roberts' sexually inappropriate and violent behaviors
were more attributable to his issues with substance abuse than to a personality disorder.
Accordingly, Dr. Dees concluded that Roberts did not qualify for civil commitment under
the SVPA.

After deliberating, the jury found that Roberts was a sexually violent predator
within the meaning of the SVPA and was therefore subject to involuntary commitment.
The district court accepted the jury's finding and committed Roberts into KDADS
custody until such time as his mental abnormality or personality disorder has so changed
that he is safe to be at large.

ANALYSIS

Roberts argues there was insufficient evidence to support his adjudication as a
sexually violent predator under the SVPA. When the sufficiency of the evidence is
challenged in sexually violent predator cases, appellate courts must determine whether,
after reviewing all of the evidence in a light most favorable to the State, it is convinced
that "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."
In re Care & Treatment of Williams, 292 Kan. 96, 104, 253 P.3d 327 (2011). The
appellate court does not, however, "reweigh the evidence, pass on the credibility of
witnesses, or resolve conflicts in the evidence." 292 Kan. at 104.

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To establish that a person is a sexually violent predator, the burden is on the State
to prove beyond a reasonable doubt that the person: (1) has been convicted of or charged
with a sexually violent offense; (2) suffers from a mental abnormality or personality
disorder that; (3) makes it likely that he or she will engage in repeat acts of sexual
violence; and (4) has a serious difficulty controlling his or her behavior. K.S.A. 2019
Supp. 59-29a02(a); see also In re Care & Treatment of Williams, 292 Kan. at 106 (citing
Kansas v. Crane, 534 U.S. 407, 412-15, 122 S. Ct. 867, 151 L. Ed. 2d 856 [2002]). Here,
it is undisputed that Roberts has two convictions for criminal sodomy, which satisfies the
first element. Similarly, Roberts does not dispute that there was sufficient evidence to
support the jury's findings on the third and fourth elements.

Instead, Roberts argues there is insufficient evidence of the second required
element: that he suffers from a mental abnormality or personality disorder. In support of
this argument, Roberts claims none of the experts who testified at trial diagnosed him
with any type of sexually deviant condition, such as pedophilia or hebephilia. But as the
State correctly notes, the SVPA does not require such a showing. Instead, it simply
requires the State to show that Roberts suffers from a mental abnormality or personality
disorder that makes it likely that he will engage in repeat acts of sexual violence. K.S.A.
2019 Supp. 59-29a02(a). And the State did that through the testimony of Dr. Farr and
Dr. Grimmell.

Roberts also supports his argument of insufficient evidence by pointing out that
Dr. Dees testified it was his substance abuse issues, not his personality disorders, that
make him likely to engage in repeat acts of sexual violence. Roberts argues substance
abuse does not qualify as a mental abnormality or personality disorder under the SVPA
and, therefore, the State failed to carry its burden. But this argument ignores the
testimony of Dr. Farr and Dr. Grimmell, who both disagreed with Dr. Dees and found
that Roberts suffers from a personality disorder, either narcissistic personality disorder
with borderline features (Dr. Farr) or a personality disorder with a blend of narcissistic
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and histrionic traits (Dr. Grimmell). Both of these experts also provided opinions based
on their respective diagnoses that Roberts was likely to engage in repeat acts of sexual
violence in the future.

Simply put, Roberts' argument asks us to reweigh and resolve a conflict within the
evidence, which is a task we are prohibited from undertaking. See In re Care &
Treatment of Williams, 292 Kan. at 104. Looking at the evidence in a light most favorable
to the State, we find sufficient evidence for a reasonable fact-finder to conclude that the
State proved beyond a reasonable doubt that Roberts suffers from a mental abnormality
or personality disorder that makes him likely to engage in repeat acts of sexual violence
in the future. See 292 Kan. at 104; see also K.S.A. 2019 Supp. 59-29a02(a).

Affirmed.