In re Care and Treatment of Bengston ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 123,496
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Matter of the Care and Treatment of
CARL E. BENGSTON JR.
MEMORANDUM OPINION
Appeal from Reno District Court; TRISH ROSE, judge. Opinion filed September 17, 2021.
Affirmed.
Nicholas L. Oswald, of Hutchinson, for appellant.
Jerry C. Edwards, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., ISHERWOOD, J., and MCANANY, S.J.
PER CURIAM: Carl E. Bengston Jr. contends there was insufficient evidence to
support the district court's finding at the conclusion of a bench trial that he was a sexually
violent predator under the Kansas Sexually Violent Predator Act, K.S.A. 59-29a01 et seq.
Viewing the evidence in the light favoring the State, and without interjecting ourselves
into issues regarding the credibility of the witnesses, issues properly left to the trial judge
who observed the witnesses in their testimony, we conclude that a rational fact-finder
could have found beyond a reasonable doubt that Bengston was a sexually violent
predator. Accordingly, we affirm the district court.
FACTUAL AND PROCEDURAL HISTORY
In July 1988, Bengston was convicted of sexual assault of a child in Dodge
County, Nebraska. After Bengston was released from custody in Dodge County, he was
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convicted in Reno County, Kansas, of public indecency, window peeping, committing
lewd acts, and lewd and lascivious behavior.
In June 2016, Bengston was scheduled to be released from the Hutchinson
Correctional Facility where he was imprisoned for a 2009 felony conviction for lewd and
lascivious behavior. In anticipation of Bengston's release, the State brought this action
under the Kansas Sexually Violent Predator Act, K.S.A. 59-29a01 et seq. (KSVPA), to
have Bengston declared a sexually violent predator and to order him to be placed in State
custody for treatment in a secure facility.
The district court found there was probable cause to believe that Bengston met the
criteria of a sexually violent predator and set the matter for a hearing. Bengston was
ordered to undergo an evaluation at Larned State Security Hospital to determine whether
he suffered from a mental abnormality or personality disorder that would increase the
likelihood he would engage in repeat acts of sexual violence and whether he had serious
difficulty controlling his dangerous behavior.
At Bengston's request, the court ordered an independent psychological evaluation.
After a couple of false starts, the parties agreed to have Dr. Mark Goodman conduct the
evaluation. It is unclear whether Dr. Goodman actually did so. No report from him was
introduced into evidence at trial, and he did not testify.
At the bench trial, the State called Bengston to testify along with Dr. Mitchell
Flesher and Dr. Carol Crane. Bengston presented no evidence in his defense. Here is a
summary of the testimony, viewed in the light favoring the State, the prevailing party, as
we are required to do.
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Bengston's testimony
Bengston admitted to having a long list of criminal charges and convictions,
including his conviction of sexual assault of a child in Dodge County, Nebraska. He was
later convicted five times for public indecency between 1983 and 1996; four times for
window peeping between 1985 and 1998; and two times for lewd and lascivious behavior
in 1998 and 2009, one of which involved three children.
Bengston had participated in a sexual offender treatment program (SOTP) three
times. He stated in a questionnaire that during his lifetime he had about 10 sexual victims
and he guessed that he indirectly affected between 500 and 1,500 people through a
"ripple effect" of victimization. He used window peeping and flashing as a release for
emotional pressure and frustration and exposed himself in public "all over town."
Dr. Flesher's testimony
Dr. Mitchell Flesher, a licensed psychologist, had conducted about 1,000 sexually
violent predator evaluations. He prepared a forensic evaluation report on Bengston, using
actuarial instruments such as the Static-99, the Stable-2007, and the Acute-2007. He
testified that the instruments he used to evaluate Bengston were reliable, tested, peer
reviewed, based on empirically sound scientific principles, and widely accepted by
psychologists and other mental health professionals to determine whether someone is a
sexually violent predator.
Dr. Flesher diagnosed Bengston with exhibitionistic disorder, voyeuristic disorder,
and antisocial personality disorder. Based on interviewing Bengston and reviewing his
records, Bengston exhibited a repetitive pattern of exhibitionistic and voyeuristic
behaviors. While Bengston had only one conviction for a contact offense, he told Dr.
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Flesher that he had four sexual contact offenses against preschool age victims which did
not lead to convictions.
There were other factors that increased Bengston's risk of reoffending. Dr. Flesher
opined that Bengston's mental abnormalities and personality disorders made it likely for
him to engage in repeat acts of sexual violence based on results from the actuarial
instruments. On the Static-99 test Bengston scored well above average for having a risk
of sexual offense recidivism. The Stable-2007 instrument placed Bengston in a category
for high treatment needs. His Stable-2007 score stemmed from evidence of general social
rejection, his impulsivity, his poor problem solving, his sex drive, his problems
cooperating with supervision, his difficulty with significant social influences, his capacity
for relationship stability, and his deviant sexual preferences.
Dr. Flesher opined that Bengston was more than seven times as likely to engage in
future acts of sexual violence than the average sex offender. Bengston's previous
participation in SOTPs were not helpful as he reoffended despite completing the
programs. It was apparent to Dr. Flesher that Bengston had serious issues controlling his
behavior.
Dr. Crane's testimony
Dr. Carol Crane, a licensed psychologist, had prepared about 800 clinical service
reports to assess an offender's future risk of reoffending. Dr. Crane used the Static-99,
Static-2002R, and the revised violence risk appraisal guide (VRAG-R) to evaluate
Bengston. She testified that these instruments were reliable, tested, peer reviewed, based
on empirically sound scientific principles, and were widely accepted tools for identifying
individuals at risk of sexual misconduct. The Static-99 reports provided imperfect
statistics but overall provided valid and useful information. The Static-99 considered
general criminality and was also informative of risk from a sexual perspective.
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Bengston had a repeated and sustained level of criminal behavior since 1978.
Bengston suffers from antisocial personality disorder, exhibitionist disorder, voyeuristic
disorder, pedophiliac disorder, and fetishism. Bengston has had four contact victims
under the age of nine, and testing showed he was most sexually responsive to the
youngest age group of females. The younger the children, the more predictive
pedophiliac interest is, and Bengston's youngest contact victim was a two-year-old
female. Dr. Crane explained an individual cannot grow out of a pedophiliac condition.
Dr. Crane opined Bengston's diagnoses have been shown to be predictive of risk
and, together, his diagnoses exponentially compound in terms of risk. She concluded that
Bengston had an increased likelihood to reoffend sexually as all three actuarial
instruments used to evaluate him identified him at the highest level of risk.
Dr. Crane determined that Bengston's mental abnormalities and personality
disorders predisposed him to engage in sexual violence to such a degree that he posed a
menace to public health and safety. Moreover, having one conviction for a contact
offense did not reduce Bengston's risk of engaging in future acts of sexual violence. Even
considering Bengston's age, he still presented a well above average risk.
The District Court's Ruling
The district court found Bengston to be a sexually violent predator pursuant to
K.S.A. 2020 Supp. 59-29a07(a). Bengston had been previously convicted of a sexually
violent offense and was diagnosed with multiple mental abnormalities and personality
disorders. The district court explained:
"[Bengston] entered the Sexual Offender Treatment Program in December 1999
and was discharged unsuccessfully in February 2000. He entered the Sexual Offender
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Treatment Program again while incarcerated in October 2002 but was terminated in
August 2003 for consistent rule violations, poor attitude and failure to progress.
[Bengston] entered treatment again in March 2004 in an accelerated needs program. He
completed the program in June 2004. [Bengston] then participated in a community-based
treatment program in September 2004 during parole but was terminated in April 2005
due to offense-related behaviors, use of substances and possession of pornography."
Bengston's sexual offending behaviors "failed to desist despite repeated criminal
sanctions and multiple attempts at sex offender treatment."
The district court concluded that the State proved beyond a reasonable doubt each
element to establish Bengston was a sexually violent predator. Thus, the court committed
Bengston to the custody of the Secretary for the Department for Aging and Disability
Services for control, care, and treatment until he was safe to be at large.
ANALYSIS
Bengston's appeal brings the matter to us. He claims on appeal that the State used
unreliable tests to assess his behavior. He also claims that the State failed to prove
beyond a reasonable doubt that he was likely to commit repeat acts of sexual violence
due to his mental abnormalities or personality disorders and that he has serious difficulty
controlling his dangerous behavior.
As noted earlier, on appeal we view the evidence in the light favoring the State to
determine whether a rational fact-finder could have found beyond a reasonable doubt that
Bengston was a sexually violent predator. In doing so, we do not reweigh the evidence,
resolve evidentiary conflicts, or make witness credibility determinations. In re Care &
Treatment of Williams, 292 Kan. 96, 104, 253 P.3d 327 (2011).
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There are four elements the State must prove beyond a reasonable doubt in order
to support a finding that a person is a sexually violent predator:
"(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.
at 106; see K.S.A. 2020 Supp. 59-29a02(a).
Bengston does not dispute on appeal the district court's findings on elements (1)
and (2). He admits he was convicted in Nebraska for an act of sexual violence as defined
in K.S.A. 2020 Supp. 59-29a02(e). He also admits that he suffers from exhibitionistic
disorder, voyeuristic disorder, and antisocial personality disorder, all of which he asserts
are nonviolent diagnoses.
But Bengston disputes element (3): that he is likely to commit repeat acts of sexual
violence because of a mental abnormality or personality disorder. He also disputes
element (4): that he has serious difficulty controlling his dangerous behavior.
Bengston's arguments on elements (3) and (4) center on the claimed inaccuracy of
the actuarial instruments the State relied on to assess Bengston's risk of reoffending. He
argues that the actuarial tests the State used were only 60-70 percent reliable. Moreover,
the State's tests were conducted nearly two years before trial and, therefore, did not
accurately establish his risk factor, particularly since he had not been convicted of a
sexually violent crime in over 32 years.
The State presented evidence from both Dr. Flesher and Dr. Crane, who testified
about the reliability of the actuarial instruments and tests used to assess Bengston's
predicted risk of reoffending. Both doctors confirmed the actuarial instruments were
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tested, reliable, peer reviewed, based on empirically sound scientific principles, and were
widely accepted by mental health professionals. A similar argument was raised in In re
Care & Treatment of Cone, No. 116,801, 2017 WL 3668891 (Kan. App. 2017)
(unpublished opinion), aff'd 309 Kan. 321, 435 P.3d 45 (2019). As stated by a panel of
our court, and as affirmed by our Supreme Court:
"Cone argues that certain actuarial instruments used to assess his risk of reoffending
should not have been admitted because they do not satisfy the Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 573, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), criteria
for admissibility of expert testimony. However, these tests are widely used and generally
accepted, have been tested, and have ben subject to peer review and publication. The
district court did not abuse its discretion in admitting them." Cone, 2017 WL 3668891, at
*1.
With respect to element (3), both Dr. Flesher and Dr. Crane found Bengston in the
"well above average" risk category to reoffend, placing him in the 99th percentile of all
sex offenders. Both doctors opined Bengston was over seven times more likely to
reoffend than the average sex offender. Dr. Crane testified Bengston's Static-2002R score
suggested he was more than 53.3 percent likely to reoffend in his first five years in the
community.
According to Dr. Flesher, the Stable-2007 assessment showed Bengston was in the
"High Treatment Needs" category. The Acute-2007 assessment revealed Bengston was in
the moderate priority for sex and violence risk and the moderate priority for general
recidivism risk. The VRAG-R assessment showed Bengston was in the highest risk
category for sexual and violent recidivism. Dr. Flesher determined Bengston's behavior
suggested a repetitive pattern of exhibitionistic and voyeuristic behaviors. Dr. Flesher
acknowledged the fact Bengston had only one conviction for a contact offense but noted
there were other risk principles that increased his risk. Bengston admitted to four other
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sexual contact offenses against preschool age victims though he was not convicted for
those acts.
The KSVPA "does not require the State to prove that an offender will reoffend."
(Emphasis added.) In re Care & Treatment of Williams, 292 Kan. at 109. Both doctors
concluded Bengston was likely to reoffend because of his mental abnormality or
personality disorders. While Bengston was convicted of only one sexual contact offense
over 30 years ago, there was overwhelming evidence that Bengston was highly
susceptible to reoffend. Reviewing the evidence in the light favoring the State, a rational
fact-finder could find beyond a reasonable doubt Bengston was likely to commit repeat
acts of sexual violence because of his mental abnormalities or personality disorders.
With respect to element (4), Bengston argues he is "incredibly adept at controlling
his behavior—specifically any violent impulses that may exist." Dr. Flesher testified
Bengston demonstrated repetitive behaviors and his participation in previous SOTPs did
not prevent him from reoffending. Dr. Flesher explicitly found that Bengston had serious
issues controlling his behavior. Dr. Crane also noted repeated and sustained levels of
criminal behavior beginning in 1978.
The doctors disagreed in one respect. Contrary to Dr. Flesher, Dr. Crane diagnosed
Bengston with pedophiliac disorder and fetishism. Dr. Crane reported actuarial testing
showed Bengston was sexually responsive to the youngest female age group and, the
younger the children, the more predictive pedophiliac interest is. Bengston's youngest
contact victim—though he was not convicted of a crime related to the victim—was a
two-year-old female. Dr. Crane explained that an individual cannot grow out of a
pedophiliac condition. Dr. Crane ultimately opined Bengston has serious difficulty
controlling his dangerous behavior to such a degree he poses a menace to the public
health and safety.
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Viewed in the light favoring the State, there was sufficient evidence to allow a
rational fact-finder to find beyond a reasonable doubt Bengston had serious difficulty
controlling his behavior.
The evidence as a whole, viewed in the light favoring the State, was sufficient to
support a rational fact-finder's determination beyond a reasonable doubt that Bengston
was a violent sexually predator.
Affirmed.
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