In re Care & Treatment of Strait

CORRECTED OPINION
NOT DESIGNATED FOR PUBLICATION

No. 116,767

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Matter of the Care and Treatment of
DUSTIN J. STRAIT, aka,
CHRISTOPHER V. STRAITH.


MEMORANDUM OPINION

Appeal from Brown District Court; JAMES A. PATTON, judge. Opinion filed June 2, 2017.
Affirmed.

William R. McQuillan, of Troy, for appellant.

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

Before ATCHESON, P.J., MALONE and POWELL, JJ.

Per Curiam: Dustin J. Strait, aka Christopher V. Straith, appeals the district
court's decision denying his motion for an independent psychological evaluation as part
of his annual review in the Sexual Predator Treatment Program (SPTP). Finding no abuse
of discretion, we affirm the district court's decision.

Strait was admitted to the SPTP at Larned State Hospital on March 15, 2001. Strait
has reached phase five of the SPTP's seven-phase inpatient treatment program. Under
phase five, residents are introduced into open society through "a series of graduated and
supervised off-grounds outings." Strait has "Privilege Level A (Green Badge) status
which affords him the highest level of privileges" and "is an indication of his compliance
with program rules and the civility of his behavior on the unit and during program
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activities." Thus far, Strait has been denied promotion to phase six because he has yet to
effectively address his sexual sadism and masochistic tendencies. Also, Strait was placed
on probation in November 2015 when he "failed his monitor polygraph." Before
probation, Strait had completed "the outing process and moved to [the] maintenance
phase" of phase five after completing seven outings.

As part of his SPTP, the Secretary of the Department for Aging and Disability
Services provides Strait with a current examination and report of his mental condition
every year. Strait received such a report dated March 8, 2016, and filed with the district
court on March 29, 2016. The annual report indicated that Strait was still a sexually
violent predator because of his prior convictions. In addition, the report indicated that
Strait suffered from a personality disorder or mental abnormality which made "'it likely
that he [would] engage in repeat acts of sexual violence.'" The report indicated that Strait
suffered from pedophilic disorder, narcissistic personality disorder, alcohol use disorder
in sustained remission, and stimulant disorder (amphetamine-type substance) in a
controlled environment. Based on these observations, the report concluded "that the
aforementioned mental abnormality/personality disorder has not so changed that it would
be safe for Mr. Strait to be placed in Transitional Release at this time."

Strait filed a motion for an independent evaluation on March 29, 2016. In the
motion, Strait disagreed with the State's assessment of his "alleged mental abnormality
and personality disorder" and requested an independent evaluation of his mental
condition. On July 27, 2016, Strait filed an amendment to his motion. In the amendment,
Strait asked that he not be subjected to any polygraph testing regardless of whether his
motion for independent psychological evaluation was granted.

The State filed its response to Strait's motion on August 9, 2016. The response
contended, among other claims, that the district court's decision to order an independent
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evaluation is discretionary absent probable cause that Strait's mental condition had
changed since his prior evaluation.

The district court held a hearing on Strait's motion for independent evaluation on
August 11, 2016. After hearing oral arguments from both sides, the district court denied
the motion. Specifically, the district court stated:

"It appears that he is making progress, but certainly hasn't made sufficient
progress. It appears that he has the potential for the next annual review which is only
what, six months away now. To be in that position, and at that point the Court would
certainly look if he hasn't been placed on probation again, get him to this next phase.
. . . .
" . . . So right now it appears that he's up and down, and the old song two steps
forward one step back seems to apply in that he makes some success and then all of the
sudden he does something that violates either the program parameters, or he just doesn’t
cooperate and finish the things that he's supposed to do.
. . . .
"[I]f at the next period he has no violations or continues without probation the
Court will order it, because at that point I think he's at the stage of handling those things
that came up that put him on probation and that he might be ready for transitional release,
and certainly at that point he's entitled to an expert."

The district court filed a journal entry reflecting the denial of Strait's motion on
September 21, 2016. The journal entry stated that the district court denied the motion
"based on the facts presented and does not find that [an independent evaluation] is
necessary at this point." Strait timely appealed from this ruling.

On appeal, Strait claims the district court erred in denying his motion for an
independent psychological evaluation. Specifically, Strait argues that the district court
failed to comply with K.S.A. 2016 Supp. 59-29a08 in denying his motion. Strait argues
that absent an independent evaluation "[i]t is impossible for [him] to show probable cause
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exists to believe that his mental abnormality or personality disorder has so changed" to
allow him to qualify for transitional release. Strait maintains that his "advanced progress
in the treatment program" necessitated an independent evaluation. Finally, Strait claims
that the district court "made no specific findings in support of its ruling."

The State maintains that the district court did not abuse its discretion in denying
Strait's motion for an independent psychological evaluation. The State contends that the
district court properly found, based on Strait's inconsistent progress, that it was best to
wait until Strait's next annual review to appoint an independent expert. Finally, the State
argues that the district court made sufficient findings to support its decision.

K.S.A. 2016 Supp. 59-29a08(a) states in part:

"Each person committed under the Kansas sexually violent predator act shall
have a current examination of the person's mental condition made once every year. . . .
The person may retain, or if the person is indigent and so requests the court may appoint a
qualified professional person to examine such person, and such expert of professional
person shall have access to all records concerning the person." (Emphasis added.)

Our court has held that the legislature's use of the word "may" in the applicable
statute dictates that the decision to order an independent psychological evaluation at the
annual review stage is at the district court's discretion and is reviewed utilizing an abuse
of discretion standard. In re Care and Treatment of Twilleger, 46 Kan. App. 2d 302, 310,
263 P.3d 199 (2011). A judicial action constitutes an abuse of discretion if (1) no
reasonable person would take the view adopted by the district court; (2) the action is
based on an error of law; or (3) the action is based on an error of fact. Wiles v. American
Family Life Assurance Co., 302 Kan. 66, 74, 350 P.3d 1071 (2015). The party asserting
the district court abused its discretion bears the burden of showing such abuse of
discretion. Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 935,
296 P.3d 1106, cert. denied 134 S. Ct. 162 (2013).
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Here, the district court noted that Strait's annual report indicated that "his mental
abnormality or personality disorder has not so changed so that he is not safe to be placed
in transitional release." The district court was clear that while Strait had made progress in
his treatment, he also had incurred some very recent setbacks. In fact, Strait had been
released from phase five probation only a few days before the court's hearing. The district
court decided to forego an independent evaluation until such time that Strait showed
more consistent progress. Moreover, the district court was hopeful that at Strait's next
review, it could order an independent evaluation if Strait continued without probation and
had no violations. The district court complied with K.S.A. 2016 Supp. 59-29a08(a) in
denying the motion, and Strait fails to show that no reasonable person would have taken
the view adopted by the district court. See Wiles, 302 Kan. at 74. Thus, the district court
did not abuse its discretion in denying Strait's motion for an independent evaluation.

Finally, the district court's findings made from the bench were sufficient to explain
the court's decision and to provide for meaningful appellate review. See Kansas Supreme
Court Rule 165 (2017 Kan. S. Ct. R. 214). Moreover, Strait did not object to the
inadequacy of findings in district court, so he cannot complain about the sufficiency of
the findings on appeal. See Fischer v. State, 296 Kan. 808, 825, 295 P.3d 560 (2103).

Affirmed.