In re Care & Treatment of Dominguez ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 121,986
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Matter of the Care and Treatment of
RODRIGO A. DOMINGUEZ.
MEMORANDUM OPINION
Appeal from Rice District Court; STEVEN E. JOHNSON, judge. Opinion filed August 7, 2020.
Affirmed.
Kristen B. Patty, of Wichita, for appellant.
Brant M. Laue, deputy solicitor general, and Derek Schmidt, attorney general, for appellee.
Before MALONE, P.J., MCANANY, S.J., and BURGESS, S.J.
PER CURIAM: Rodrigo Dominguez appeals the district court's order committing
him as a sexually violent predator. He argues that his neurobehavorial disorder, his
attention deficit hyperactivity disorder, and his below average IQ do not qualify as either
"a mental abnormality or personality disorder which makes [him] likely to engage in
repeat acts of sexual violence," under K.S.A. 2019 Supp. 59-29a02. Finding that there is
more than sufficient evidence that Dominguez suffered from a mental disorder or
personality disorder as contemplated by statute, the district court's order committing
Dominguez is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
In January 2014, Dominguez broke into a female stranger's residence shortly after
midnight. Although the woman was at work, her two young daughters were home. The
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older daughter managed to escape the house, and neighbors alerted police. When the
police entered the house, they found Dominguez straddling and hitting the younger
daughter. After arresting Dominguez, police also discovered pairs of women's underwear
stuffed in his pants.
In February 2015, Dominguez pleaded no contest to one count of aggravated
battery and one count of aggravated burglary. In exchange for those pleas, the State
dismissed two counts of aggravated assault, one count of abuse of a child, and one count
of battery. The district court sentenced Dominguez to 52 months in prison and 24 months
of postrelease supervision, which fell within the presumptive range under our state's
sentencing guidelines.
In early April 2018, two weeks before he was scheduled for release, the State
petitioned to commit Dominguez at the end of his sentence under the Kansas Sexually
Violent Predator Act, K.S.A. 59-29a01 et seq. Under that Act, if an offender meets the
statutory criteria of a sexually violent predator, a district court can order that that person
remain confined to protect the public while the person receives treatment for any
underlying mental disorder. To be subject to civil commitment under the Act, the person
must (1) have been convicted or charged with a listed sexually violent offense, (2) suffer
from some mental abnormality or personality disorder, (3) be likely to engage in repeat
acts of sexual violence because of that abnormality or disorder, and (4) have serious
difficulty controlling their dangerous behavior. K.S.A. 2019 Supp. 59-29a02(a).
The Act lays out the procedure for civil commitment. First, the State petitions
under K.S.A. 2019 Supp. 59-29a04(a), asking the court to determine whether there is
probable cause to believe that the person meets the statutory definition of a sexually
violent predator. If the court determines that there is probable cause, it orders the person
be taken to county jail until it can hold a hearing. K.S.A. 2019 Supp. 59-29a05(a). At that
hearing, the person may contest the court's initial determination. K.S.A. 2019 Supp. 59-
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29a05(b), (c). If the court again finds that probable cause exists to believe the person is a
sexually violent predator, it orders another mental-health examination at a secure facility.
K.S.A. 2019 Supp. 59-29a05(d), (e). Thereafter, the case proceeds to trial and the trier of
fact must determine whether the person is a sexually violent predator beyond a
reasonable doubt. K.S.A. 2019 Supp. 59-29a06, K.S.A. 2019 Supp. 59-29a07.
In this case, the assault and burglary convictions from the January 2014 home
invasion did not serve as the basis for the State's petition. Instead, the State alleged in its
petition that Dominguez had pleaded guilty in 2008, at the age of 14, to aggravated
indecent solicitation with a child, a listed sexually violent offense. See K.S.A. 2019 Supp.
59-29a02(e)(7). Dominguez was adjudicated as a juvenile offender in that case and spent
time in the Larned Juvenile Correctional Facility before being discharged in 2012. The
petition also designated Dr. Carol Crane as the State's expert in the case. The State filed a
32-page report from Dr. Crane with the petition in which Dr. Crane concluded that
Dominguez suffered from a mental abnormality, had trouble controlling his dangerous
behavior, and "pose[d] a well above average risk for sexual violence relative to other
convicted sex offenders."
After reviewing the petition and Dr. Crane's report, the district court made the
initial determination that probable cause existed to believe that Dominguez met the
statutory criteria for a sexually violent predator subject to civil commitment. The court
ordered that Dominguez be kept in custody on his release from prison and brought to the
Rice County jail. The court held the statutorily required probable-cause hearing in June
2018. See K.S.A. 2019 Supp. 59-29a05(b)-(d). Dr. Crane gave testimony consistent with
her report, and the court found that the State had shown probable cause to believe that
Dominguez was a sexually violent predator under the Act.
The court then ordered that Dominguez be transferred to Larned State Security
Hospital for the evaluation required by the Act. See K.S.A. 2019 Supp. 59-29a05(d). In
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September 2008, he was examined by Dr. Mitch Flesher, who concluded in a 10-page
report that Dominguez was suffering from antisocial personality disorder—a mental
abnormality—and that Dominguez' "likelihood of repeat acts of sexual violence is of
such a degree that he poses a menace to the health and safety of others." It was Dr.
Flesher's opinion that Dominguez met the statutory criteria of a sexually violent predator.
After a continuance, the court held a two-day jury trial in July 2019. Dr. Crane,
Dr. Flesher, Kalene Ventura (a Rice County detention officer), and Dominguez testified.
Dr. Crane and Dr. Flesher testified as experts about whether they believed Dominguez
met the four statutory criteria to be considered a sexually violent predator. Ventura
testified about multiple instances during which Dominguez exposed his genitals and
masturbated in front of her when he was detained in the Rice County jail. Dominguez
testified about the physical and sexual abuse he suffered as a child, his substance abuse
history, and his employment history.
Dr. Crane and Dr. Flesher both believed that Dominguez met the four statutory
criteria of a sexually violent predator. They concluded that Dominguez (1) had been
convicted or charged with a listed sexually violent offense, (2) suffered from some
mental abnormality or personality disorder, (3) was likely to engage in repeat acts of
sexual violence because of that abnormality or disorder, and (4) had serious difficulty
controlling his dangerous behavior. See K.S.A. 2019 Supp. 59-29a02. Both experts
referenced Dominguez' juvenile adjudication for aggravated indecent solicitation of a
child as a prior sexually violent crime. Both experts concluded that Dominguez had
serious trouble controlling his dangerous behavior. Dominguez did not introduce expert
testimony to rebut the State's experts.
At the close of the trial, the jury found that, beyond a reasonable doubt,
Dominguez was a sexually violent predator, and the district court ordered him committed
under the Sexually Violent Predator Act. Dominguez has appealed to this court.
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ANALYSIS
As previously stated, to meet the statutory criteria of a sexually violent predator, a
person must (1) have been convicted or charged with a listed sexually violent offense, (2)
suffer from some mental abnormality or personality disorder, (3) be likely to engage in
repeat acts of sexual violence because of that abnormality or disorder, and (4) have
serious difficulty controlling his or her dangerous behavior. K.S.A. 2019 Supp. 59-
29a02(a).
On appeal, Dominguez frames his argument as a sufficiency of the evidence issue.
He says that insufficient evidence supports his adjudication as a sexually violent predator
warranting reversal and his release. He correctly notes that when we are presented with
such an issue in a sexually violent predator case, we review all of the evidence in the light
most favorable to the State and determine whether we are convinced that a reasonable
fact-finder could have found that the State met its burden to prove beyond a reasonable
doubt that the individual is a sexually violent predator. In re Care & Treatment of
Williams, 292 Kan. 96, 104, 253 P.3d 327 (2011).
The only issue that Dominguez raises in his brief is that Dr. Crane's testimony
concerning Dominguez' neurodevelopmental disorder due to prenatal alcohol exposure,
his attention deficit hyperactivity disorder, and his below average IQ of 87 do not qualify
as a mental abnormality or personality disorder under K.S.A. 2019 Supp. 59-29a02(a).
The statutory definition of mental abnormality is "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. 2019 Supp. 59-29a02(b). The issue, as framed by Dominquez, is
whether the prenatal alcohol induced neurodevelopmental disorder, attention deficit
hyperactivity disorder, and a below average IQ fall within that statutory definition.
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Statutory interpretation presents a question of law over which appellate courts have
unlimited review. Nauheim v. City of Topeka, 309 Kan. 145, 149, 432 P.3d 647 (2019).
Dominguez' argument ignores the other mental abnormalities that both Dr. Crane
and Dr. Flesher diagnosed him with. Those include antisocial personality disorder,
borderline personality disorder, exhibitionism, impulse control disorder, and various
substance abuse disorders. As the State notes, Kansas appellate courts have found that
those conditions constitute mental abnormalities under the Sexually Violent Predator Act.
See, e.g., In re Williams, 292 Kan. at 114 (antisocial personality disorder); In re Care &
Treatment of Miller, 289 Kan. 218, 228, 210 P.3d 625 (2009) (antisocial personality
disorder and substance abuse); In re Care & Treatment of Emerson, 52 Kan. App. 2d
421, 435, 369 P.3d 327 (2016) (exhibitionism). Our Supreme Court has said that
"language of [K.S.A. 59-29a02(b)] is clear" and that it "provides for the commitment of a
sex offender with any mental abnormality . . . that makes him or her likely to engage in
repeat acts of sexual violence." In re Miller, 289 Kan. at 231. Assuming Dominguez is
correct that the specific conditions he disputes do not qualify as mental abnormalities
under the statute, he was diagnosed with multiple other conditions that are more than
sufficient to satisfy the mental-abnormality element.
Dominguez does not challenge the jury's findings that he met the other statutory
elements of a sexually violent predator, i.e., he committed a sexually violent crime, he is
likely to engage in repeat acts of sexual violence, or he has serious difficulty controlling
his dangerous behavior. We therefore affirm the district court's order committing
Dominguez as a sexually violent predator.
Affirmed.
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