In re Care & Treatment of Cone , 309 Kan. 321 ( 2019 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 116,801
In the Matter of the Care and Treatment
of MATTHEW C. CONE.
SYLLABUS BY THE COURT
Under the Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113
S. Ct. 2786, 125 L. Ed. 2d 469 (1993), standard for admissibility of expert testimony, as
codified in this state under K.S.A. 2017 Supp. 60-456(b), the district court did not abuse
its discretion in admitting expert testimony on the Static-99R and Static-2002R actuarial
tools, used to estimate a sex offender's risk of reoffending.
Review of the judgment of the Court of Appeals in an unpublished opinion filed August 25, 2017.
Appeal from Clay District Court; JOHN F. BOSCH, district judge. Opinion filed February 22, 2019.
Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is
affirmed.
Sam S. Kepfield, of Hutchinson, argued the cause and was on the brief for appellant.
Bryan C. Clark, assistant solicitor general, argued the cause, and Derek Schmidt, attorney general,
was with him on the briefs for appellee.
PER CURIAM: Matthew Cone seeks review of the Court of Appeals' decision
affirming his involuntary commitment under the Kansas Sexually Violent Predator Act
(SVPA), K.S.A. 59-29a01 et seq. Cone challenges the Court of Appeals' holding that the
district court did not abuse its discretion in finding that the actuarial tools used to
estimate sex offenders' risk of reoffending met the Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), standard
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for admissibility of expert testimony. Cone also contends that the evidence was
insufficient to support the jury's verdict that he met the SVPA's definition of a sexually
violent predator. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
For acts committed in 2012, Cone was convicted of aggravated indecent
solicitation of a child less than 14 years of age and sentenced to 36 months in prison.
Shortly before his release from prison in November 2014, the State filed a petition to
involuntarily commit Cone to the Larned State Hospital under the SVPA. To effect the
commitment, the State had to prove that Cone met the definition of a sexually violent
predator, which included establishing that he suffers from a mental abnormality or
personality defect that makes him likely to commit repeat acts of sexual violence. The
State planned to meet that burden through the use of expert witnesses who would rely in
part on the Static-99R and Static-2002R tests, which are actuarial tools used to estimate
sex offenders' risk of reoffending.
Before the SVPA jury trial, Cone sought to exclude evidence of the results of the
Static-99R and Static-2002R tests by challenging their relevance and reliability. At the
hearing on the admissibility of the Static tests, the district court heard testimony from all
three experts who went on to testify at Cone's trial as well as two additional experts for
the State, psychologists Dr. Derek Grimmell and Dr. Thomas Kinlen. The district court
applied the Daubert standard, which was adopted in this state in 2014. See K.S.A. 2017
Supp. 60-456(b). Using the Daubert factors, the district court found it was more likely
than not that the actuarial tests were scientifically reliable and admissible.
At trial, the State proffered the expert testimony of two doctors, Carol Crane and
Angelina Johnson. Dr. Crane reviewed Cone's history, reviewed a police affidavit
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discussing one of Cone's victims' statements, interviewed Cone, and used the Static-99R
and Static-2002R tools to determine Cone's risk of recidivism rate. Dr. Crane diagnosed
Cone with pedophilic disorder and opined that he met the criteria for commitment as a
sexually violent predator. Dr. Crane was concerned that Cone's sexual interest in children
had not been sufficiently addressed; he had difficulties in relaying what he had learned in
a sexual offender treatment program, which called into question whether he could utilize
what he had learned in treatment when he was released into the community. The doctor
also pointed to past incidents that demonstrated Cone's poor impulse control. For
instance, when he was age 16, Cone and some friends set fire to a park bathroom. On
another occasion, Cone broke into a house that he thought was abandoned and jammed a
screwdriver into an electrical outlet.
Dr. Johnson also concluded that Cone is a sexually violent predator. In conducting
her evaluation, Dr. Johnson relied on her review of Cone's records, a forensic interview,
and the Static tools. Dr. Johnson also diagnosed Cone with pedophilic disorder, but she
included the additional diagnosis of antisocial personality disorder. Dr. Johnson said that
Cone's antisocial personality disorder contributed to his likelihood to reoffend because a
key feature of the disorder is a persistent disregard for the rights and welfare of others
and persistent recurrent opposition to the law. Dr. Johnson testified that Cone's antisocial
personality and pedophilic disorders were "a dangerous combination for somebody that
struggles in the way Mr. Cone does." She discussed Cone's inability to control his
behavior, pointing to Cone's description of sexual abuse against a four-year-old victim as
beginning with Cone tickling the child and proceeding to abuse because he was unable to
resist an urge.
Dr. Johnson was also concerned that Cone did not seem to have retained the
information from the prison's sexual offender treatment program and she believes that
Cone lacks the tools to cope with urges toward children. Further, his relapse prevention
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plan was not adequate because Cone did not understand what triggered his arousal and
did not grasp the coping skills needed to deal with such arousal.
As stated above, both of the State's experts utilized the Static-99R and Static-
2002R actuarial risk assessment tools in their evaluations. These tests are actuarial scores
that rely on objectively scored risk factors, or historical data, that research has indicated
can predict future behavior. Dr. Crane gave Cone a score of 6 (out of 10) on the Static-
99R, while Dr. Johnson gave a score of 5. Those scores placed Cone's risk of reoffending
in the range of 13.8 to 23 percent, which fall into the moderate and high risk categories.
On the Static-2002R, both doctors arrived at a score of 8, with a 29 to 40 percent risk of
being rearrested for a new sexual offense, placing Cone in the moderate-to-high risk
category.
The defense countered with its own expert, Dr. Robert Barnett. In preparing his
evaluation, Dr. Barnett reviewed records, conducted a forensic interview of Cone, and
administered testing. Dr. Barnett disagreed with the pedophilic disorder and antisocial
personality disorder diagnoses of the State's experts. He related that Cone had said that he
was embarrassed and ashamed about his behavior and was committed to not repeating it.
Dr. Barnett opined Cone had a relatively good ability to control his behavior.
Dr. Barnett testified that he does not use the Static assessments because the idea
that you can accurately predict the percentage of probability that a person will reoffend is
invalid. He characterized the tests as a misuse of statistics and probability because
generalized group data cannot be applied meaningfully to an individual.
Nevertheless, Dr. Barnett testified that he had reviewed an unsigned Static-99R
test in Cone's records that reflected a risk assessment score of 4. Dr. Barnett opined that
based upon the information that Cone had lived with a female partner for more than two
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years, the score should have been 3. He then opined that his score of 3, Dr. Johnson's
score of 5, and Dr. Crane's score of 6 were not unusual for this test because it is given by
people who are not trained and not licensed to practice psychology.
Cone also testified on his own behalf. He described a chaotic childhood, which
included multiple moves, family drug use, and foster care placement. Cone related that he
had been molested by a preacher when he was six years old, although he never told
anyone about it because the preacher had warned Cone that he would go to hell if he told.
When Cone was 15, he was adjudicated for two counts of endangering a child
because he bribed his 6-year-old nephew with candy and molested him two to three
times. When Cone was 21, he was convicted of aggravated indecent solicitation of a child
less than 14 as a result of abusing his cousin's girlfriend's 4-year-old daughter. Cone
testified that he was asleep and dreaming about his own sexual abuse as a child. When he
awoke, the child was there and asked Cone to scratch her stomach. Cone went further and
asked the child to pull her pants down so he could touch her.
The jury found that Cone was a sexually violent predator subject to involuntary
commitment. Cone filed a motion for judgment notwithstanding the verdict arguing, inter
alia, that the Static tests should not have been admitted and that the evidence was
insufficient to support the jury verdict. The district court denied the motion.
Cone timely appealed to the Court of Appeals. The panel held that the district
court did not abuse its discretion in admitting expert testimony regarding the Static-99R
and Static-2002R actuarial risk assessment tools under the Daubert standard. In re Care
& Treatment of Cone, No. 116,801, 2017 WL 3668891, at *3-6 (Kan. App. 2017)
(unpublished opinion). Further, the panel noted that this case did not present the
overwhelming evidence often seen in sexually violent predator commitments, but that
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viewing the evidence in a light most favorable to the State, the panel found sufficient
evidence to support the jury's verdict. 2017 WL 3668891, at *9. This court granted
Cone's petition for review.
ADMISSIBILITY OF EXPERT TESTIMONY ON RISK ASSESSMENT TOOLS
With regard to expert testimony, the issue raised and argued by the parties
throughout this case, which issue was the only one decided by the lower courts, is
whether expert testimony on the results of the actuarial risk assessment tools—the Static-
99R test and the Static-2002R test—is admissible under the Daubert standard, as adopted
in this state by K.S.A. 2014 Supp. 60-456(b). That statutory provision is substantively
identical to Federal Rule of Evidence 702, which was amended in 2000 to follow the
holding in Daubert. Our statute now reads as follows:
"If scientific, technical or other specialized knowledge will help the trier of fact
to understand the evidence or to determine a fact in issue, a witness who is qualified as an
expert by knowledge, skill, experience, training or education may testify thereto in the
form of an opinion or otherwise if: (1) The testimony is based on sufficient facts or data;
(2) the testimony is the product of reliable principles and methods; and (3) the witness
has reliably applied the principles and methods to the facts of the case." K.S.A. 2017
Supp. 60-456(b).
Standard of review
A district court's admission of expert testimony is generally reviewed for an abuse
of discretion. In re Care & Treatment of Girard, 296 Kan. 372, 376, 294 P.3d 236(2013). To the extent interpretation of statutes is concerned, review is de novo. Neighbor
v. Westar Energy, Inc., 301 Kan. 916, 918, 349 P.3d 469 (2015).
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Analysis
Before analyzing the issue put before us by the parties and the lower courts, we
pause to note that the parties do not argue Daubert is the incorrect standard to apply in a
SVPA proceeding. The State's supplemental brief asserts that the issue of whether the
Daubert standard applies in a SVPA proceeding is not before this court because the
district court applied Daubert and the State did not cross-appeal this finding. We
recognize that a provision in the SVPA states as follows:
"Notwithstanding K.S.A. 60-456, and amendments thereto, at any proceeding
conducted under K.S.A. 59-29a01 et seq., and amendments thereto, the parties shall be
permitted to call expert witnesses. The facts or data in the particular case upon which an
expert bases an opinion or inference may be those perceived by or made known to the
expert at or before the hearing. If the facts or data are of a type reasonably relied upon by
experts in the particular field in forming opinions or inferences upon the subject, such
facts and data need not be admissible in evidence in order for the opinion or inference to
be admitted." (Emphasis added.) K.S.A. 2014 Supp. 59-29a06(c).
See also L. 2011, ch. 92, § 3 (adding this section to the statute).
One might ruminate on the effect of the proviso—"[n]otwithstanding K.S.A. 60-
456"—on the Legislature's subsequent adoption of the Daubert standard in K.S.A. 2014
Supp. 60-456(b). But at the time that provision became effective, Kansas courts were
analyzing the admissibility of scientific testimony from expert witnesses under the
standard announced in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). The Frye test
required that, to be admissible, expert opinion testimony had to be generally accepted as
reliable within the expert's particular field. In Girard, decided after the effective date of
K.S.A. 2011 Supp. 59-29a06(c) and before the 2014 "Daubert amendment" to K.S.A. 60-
456(b), this court declared that the admission of scientific evidence in a SVPA action had
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to pass the Frye test, 296 Kan. at 376; that the actuarial tests used to assess a sex
offender's risk of reoffending were scientific evidence, 296 Kan. at 378; and that "the
actuarial risk assessments pass Frye scrutiny." 296 Kan. at 379.
Pointedly, Girard did not mention the 2011 amendments to K.S.A. 59-29a06 or
indicate that, going forward, there would be a statutory constraint on applying the general
test for admitting scientific evidence from expert witnesses in a SVPA action. In
changing the general test in this state from the Frye test to the Daubert test, the
Legislature did not specify that it was inapplicable in a SVPA action. Moreover, given
that the State did not cross-appeal the district court's determination that the Daubert test
applied and that the parties do not provide any argument as to why this court should not
follow Girard's tack, we will proceed by presuming that the Daubert test applies to the
admissibility of the challenged actuarial tests in this SVPA action.
In Daubert, the Supreme Court recognized that the Frye test had been superseded
by the adoption of the Federal Rules of Evidence. 509 U.S. at 587. However, the Court
noted that this did not remove all qualifications for admissibility of scientific evidence;
rather, the trial judge has a gatekeeping obligation to ensure that scientific evidence is
relevant and scientifically reliable. 509 U.S. at 589. To that end, Daubert provided a list
of nonexclusive factors a trial judge could use to fulfill this gatekeeping requirement:
whether the theory or technique can and has been tested; whether it has been subject to
peer review; the rate of error; the existence and maintenance of standards; and whether
the theory or technique has general acceptance among the relevant scientific community.
509 U.S. at 592-94. Daubert emphasized that these factors were not exclusive and that
the trial court's overarching inquiry should be the scientific validity, evidentiary
relevance, and reliability of the evidence. 509 U.S. at 593-95; see also Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 147, 149-50, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999) (trial
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judge's gatekeeping function applies to all expert testimony, not just scientific testimony,
and a court may consider the Daubert factors when deciding admissibility).
Cone does not challenge the qualifications of the State's experts, and so our
inquiry is focused entirely on a determination of reliability. Although the factors provided
in Daubert are nonexclusive, Cone does not argue that any additional factors should be
considered in weighing the admissibility of the actuarial tests, other than to point to the
concerns expressed by the Court of Appeals, i.e., the differences in percentages generated
by the two tests and the tests' failure to account for offender treatment. Primarily relying
on the testimony of his expert, Cone challenges the panel's analysis of each of the
Daubert factors. We will consider Cone's arguments on each factor, but ultimately we
reach the same conclusion as the panel.
Whether the theory can be (and has been) tested
In Daubert, the Supreme Court stated the following with regard to this factor:
"'Scientific methodology today is based on generating hypotheses and testing them to
see if they can be falsified; indeed, this methodology is what distinguishes science from
other fields of human inquiry.' Green[, Expert Witnesses and Sufficiency of Evidence in
Toxic Substances Litigation: The Legacy of Agent Orange and Bendectin Litigation, 86
Nw. U. L. Rev. 643,] 645 [1992]. See also C. Hempel, Philosophy of Natural Science 49
(1966) ('[T]he statements constituting a scientific explanation must be capable of
empirical test'); K. Popper, Conjectures and Refutations: The Growth of Scientific
Knowledge 37 (5th ed. 1989) ('[T]he criterion of the scientific status of a theory is its
falsifiability, or refutability, or testability') (emphasis deleted)." 509 U.S. at 593.
Cone argues that the reliability of Static-99R and Static-2002R cannot be tested
because: (1) the experience of the person administering the test can impact the results;
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(2) the tests underestimate recidivism rates but do not quantify the percentage of
underestimation; and (3) the developers of the Static instruments have not released the
initial raw data used to develop those instruments. Those arguments are not persuasive.
The State presented evidence that the Static-99R has been subject to two
categories of testing: how reliably people can score the test; and how reliably the test
predicts future sexual offending. The State also presented evidence that the Static-2002R
has been tested, as well as evidence that using the tests in tandem has been tested.
Cone's first point—that the experience of the person administering the test can
affect the results—actually refutes his argument. The only reason researchers know this is
because the Static instruments have, in fact, been tested.
Second, Cone asserts that the tests underestimate recidivism rates but cannot
quantify by what percentage. In response to a question about the average rates of
recidivism provided by the assessments, Dr. Grimmell said that average rates are the rates
that someone will reoffend and be reconvicted. He explained that there are many
reoffenses that are not detected, which has "been studied and we have estimates of how
large that affect is." The State presented evidence of dozens of tests in which the Static
instruments have been re-verified by tracking sex offenders over time to measure
recidivism rates—one such study followed more than 7,000 sex offenders to determine
the accuracy of both the Static-99R and Static-2002R tests. In short, Cone's argument is
unavailing.
Similarly, Cone's argument regarding the lack of access to the raw data used to
develop the Static tests fails in the light of the repeated re-verifications of the tests over
the years. Dr. Grimmell testified that the raw data is not commonly used in this field, and
that those numbers were not necessary to verify the accuracy and results of the Static
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tests. The Static instruments have been repeatedly tested, verified, and updated; the
absence of the initial raw data did not impede the testing. In summary, the Static tests
have been subject to testing and therefore satisfy this Daubert factor.
Whether the theory or technique has been subject to peer review and publication
The Daubert Court said that scrutiny by the scientific community is a pertinent
component of good science because it increases the likelihood that flawed methodology
will be detected. 509 U.S. at 593. As noted, the Static-99R and Static-2002R have been
subject to numerous reviews and tests. Dr. Grimmell testified that these instruments have
been tested at least 42 times regarding how well they predict reoffending. As noted,
another study followed over 7,000 offenders to determine whether the tests' predicted
rates of reoffending were accurate. More than 100 articles have been published in peer
review journals on the subject. This Daubert factor is satisfied.
Known or potential rate of error
Cone argues that the Static tests are unreliable because they have an unknown rate
of error. Cone's expert, Dr. Barnett, challenged the tests on this basis.
But the district court found Dr. Grimmell's testimony on behalf of the State more
persuasive. Dr. Grimmell said the Static-99R error rate was developed using something
called the area under the curve (AUC) concept. The AUC concept means "in a field
where you have less than total knowledge, how accurate are you, and since we're
predicting the future, we will always have less knowledge in total." The Static-99R's
AUC is .72. This means there is a 72% chance that a randomly selected recidivist will
have a higher score on the instrument than a randomly selected nonrecidivist. The Static-
2002R has a slight advantage over the Static-99R, with an AUC of .75.
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The State also presented expert testimony regarding the intraclass coefficient,
which measures how consistently the tests can be administered by an experienced
examiner. The Static-99R's intraclass coefficient was .85 on a scale of 0 to 1, which is
considered "bordering on excellent." The Static-2002R had a slightly better scoring
prediction.
Cone is correct that Dr. Grimmell candidly admitted that the 72% statistic cannot
be applied to a single case because in a single case, the prediction will either be right or
wrong. But Cone overlooks other testimony from Dr. Grimmell explaining that the Static
assessments are "not meant to be the be-all and end-all." Instead, the probability gives the
assessor "a starting point risk range." The Static assessments are used in conjunction with
individual evaluation including a clinical interview and the individual's historical data.
Cone's argument goes more to the credibility of the evidence than its admissibility.
There is a quantifiable rate of error; it just is not measured in a manner that Cone might
prefer. And just as the rate of error is but one factor in the overall analysis of the
admissibility of the Static tests, the Static tests themselves are but one factor in the
overall inquiry in the SVPA proceeding. This factor does not invalidate the tests.
Existence and maintenance of standards controlling the technique's operation
Dr. Grimmell testified that the standards for scoring the tests are set out in
manuals with very detailed instruction on how to score the tests. Cone argues that the
only manuals and standards available are those published on the internet by a group
founded and directed by Karl Hanson, one of the creators of the Static assessment tools.
But as the Court of Appeals stated, "[i]t makes sense that the persons who developed the
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test would also include instructions on the technique's operation." Cone, 2017 WL
3668891, at *5. On this factor, Cone's argument simply lacks merit.
General acceptance within the relevant scientific community
Under the Frye standard, general acceptance within the scientific community was
the primary inquiry. Daubert did not remove the general acceptance inquiry, but rather
demoted it to simply one factor to be considered in the overall analysis. Girard, 296 Kan.
at 379. Indeed, in Girard we explicitly held that the predecessor to the Static-99R
assessment tool satisfied the general acceptance inquiry. 296 Kan. at 377-79.
Cone concedes that the tests are widely accepted. All of the experts, including
Cone's expert, testified to that effect. Granted, Dr. Barnett opined that the tests are
controversial and warned that just because something is accepted does not mean it is
valid. Nevertheless, given the testimony from all experts in this case regarding the tests'
widespread acceptance, this factor is satisfied.
Additional factors/concerns
The Court of Appeals discussed "a couple concerning aspects about the tests."
Cone, 2017 WL 3668891, at *6. First, the panel noted that the two tests generated
different results for Cone's percentage risk of reoffending—one score on the Static-99R
predicted an 18 to 23 percent risk of reoffending, while the Static-2002R resulted in a 29
to 40 percent risk. But the panel pointed out that, although the results may initially appear
to be disparate, the scores fall within the same categories, i.e., moderate to high risk.
Next, the panel discussed the fact that the tests fail to account for offender
treatment—meaning that offenders who successfully complete treatment will likely have
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the same score after treatment as they had before. Nevertheless, as Dr. Grimmell testified,
the tests are but one tool used in the overall evaluation of an offender. Likewise, as the
panel noted, Daubert contemplated that even admissible expert testimony could be
subjected to "'[v]igorous cross-examination, presentation of contrary evidence, and
careful instruction on the burden of proof.'" 2017 WL 3668891, at *6 (quoting Daubert,
509 U.S. at 596).
Conclusion
The panel ultimately concluded "that the district court did not abuse its discretion
in admitting the actuarial tests." 2017 WL 3668891, at *6. We agree. The district court
considered conflicting expert testimony on the reliability of the Static tests and found that
they were admissible. In performing its gatekeeping function, the district court did not
abuse its discretion.
SUFFICIENCY OF THE EVIDENCE
In order to prove that a person is a sexually violent predator, the State must show:
"(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
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." In re Care & Treatment of Williams, 292
Kan. 96, 106, 253 P.3d 327 (2011) (citing 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).
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Cone concedes that he was convicted of a sexually violent offense but argues
generally that the evidence was insufficient to establish the other elements. In his petition
for review, Cone specifically "argues that the evidence was not sufficient to diagnose him
as having Pedophilia, and thus commit him under the SVPA."
Standard of review
When reviewing the sufficiency of the evidence in a sexually violent predator
determination proceeding, the court views the evidence in the light most favorable to the
State, and must be convinced that a reasonable fact-finder could have found that the State
met its burden to demonstrate beyond a reasonable doubt that the person is a sexually
violent predator. Williams, 292 Kan. at 104.
Analysis
The SVPA defines "mental abnormality" as "a congenital or acquired condition
affecting the emotional or volitional capacity which predisposes the person to commit
sexually violent offenses in a degree constituting such person a menace to the health and
safety of others." K.S.A. 2017 Supp. 59-29a02(b). The SVPA does not define
"personality disorder." In that regard, both parties rely on the Diagnostic and Statistical
Manual of Mental Disorders (5th ed. 2013) (DSM-5).
Dr. Crane and Dr. Johnson both testified that Cone met the diagnostic criteria for
pedophilic disorder under the DSM-5. The DSM-5 provides the following diagnostic
criteria for pedophilic disorder:
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"A. Over a period of at least 6 months, recurrent, intense sexually arousing fantasies,
sexual urges, or behaviors involving sexual activity with a prepubescent child or
children (generally age 13 years or younger).
"B. The individual has acted on these sexual urges, or the sexual urges or fantasies cause
marked distress or interpersonal difficulty.
"C. The individual is at least age 16 years and at least 5 years older than the child or
children in Criterion A." DSM-5, § 302.2, p. 697.
Cone does not contend that pedophilic disorder is insufficient to satisfy the mental
abnormality or personality disorder element of a sexually violent predator. Rather, he
argues that there is insufficient evidence to support the doctors' diagnoses of pedophilic
disorder. For instance, he denies admitting to Dr. Crane that he had experienced the
requisite fantasies, so he asserts that she was not permitted to infer from his behavior that
he had such fantasies.
But the DSM-5 "Diagnostic Features" section on pedophilic disorder provides:
"The diagnostic criteria for pedophilic disorder are intended to apply both to individuals
who freely disclose this paraphilia and to individuals who deny any sexual attraction to
prepubertal children . . . despite substantial objective evidence to the contrary." DSM-5,
§ 302.2, p. 698. Therefore, Dr. Crane was not required to have a statement from Cone
that he had sexual fantasies about prepubertal children in order to render her diagnosis.
Moreover, both of the State's experts, Dr. Crane and Dr. Johnson, evaluated Cone
and opined that his statements denying that he no longer had fantasies about children
were not credible. This was based not only on their observations of Cone but also their
review of Cone's statements and behavior at the time of his 2012 arrest, and the
statements and records about Cone's past behaviors.
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Granted, Cone's expert, Dr. Barnett, countered that he had seen no evidence of
Cone having the requisite fantasies and urges within the previous six months, which he
opined was crucial. Dr. Barnett also noted other factors outside of the DSM-5 that
contradicted a diagnosis of pedophilic disorder, such as Cone's lack of a compulsive
interest in children, the fact that he had not actively sought work or recreational
opportunities in places frequented by children, and the fact that he did not collect child
pornography.
But it is not our function to assess the credibility of the experts' competing
testimony when assessing the sufficiency of the evidence. Williams, 292 Kan. at 104. The
jury, which has the responsibility to assess credibility and weigh competing evidence,
heard the testimony of Doctors Crane, Johnson, and Barnett and made its decision. The
evidence was sufficient for the jury to believe the diagnosis of pedophilic disorder.
Cone also challenges the sufficiency of the evidence to support Dr. Johnson's
additional diagnosis of antisocial personality disorder. But then Cone argues that, if the
pedophilia diagnosis is invalid, the antisocial personality disorder would not satisfy the
mental abnormality or personality disorder element of a sexually violent predator.
Perhaps, then, our finding that the pedophilic disorder diagnosis was supported by
substantial competent evidence renders moot Cone's challenge to the antisocial
personality disorder diagnosis. Nevertheless, without reweighing the evidence or
reassessing witness credibility and viewing the evidence in the light most favorable to the
State, we would hold that the evidence was sufficient for that diagnosis.
Cone makes a cursory argument on the sufficiency of the evidence to support the
elements that he was likely to commit repeat acts of sexual violence and that he has
serious difficulty controlling his dangerous behavior. Essentially, he recites the evidence
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he presented that was favorable to him, urging us to accept that evidence as refuting the
expert testimony of Dr. Crane and Dr. Johnson. Again, the fact that Cone put on evidence
to refute the State's evidence does not render the State's evidence insufficient. The State's
evidence, if believed by the jury, was sufficient to support its verdict that Cone is a
sexually violent predator under the SVPA.
CONCLUSION
In summary, we hold that on the record before us the district court did not err in
admitting the results of the Static-99R test and Static-2002R test as meeting the reliability
standard under Daubert, as codified in K.S.A. 2017 Supp. 60-456(b). Further, the State
presented sufficient evidence to support the jury's verdict that Cone is a sexually violent
predator under the SVPA.
Affirmed.
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