In re Care and Treatment of Clements ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 122,108
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Matter of the Care and Treatment of
JOHN F. CLEMENTS JR.
MEMORANDUM OPINION
Appeal from Butler District Court; JANETTE L. SATTERFIELD, judge. Opinion filed November 13,
2020. Affirmed.
Kristen B. Patty, of Wichita, for appellant.
Michael J. Duenes, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., STANDRIDGE, J., and MCANANY, S.J.
PER CURIAM: John F. Clements Jr. appeals the trial court's determination that he is
a sexually violent predator subject to involuntary commitment under the Kansas Sexually
Violent Predator Act (KSVPA), K.S.A. 59-29a01 et seq. Clements also appeals the trial
court's denial of his request to appoint an independent examiner for his annual review
process. Because sufficient evidence supports both of the trial court's rulings, we affirm.
Clements pleaded no contest and was convicted of aggravated indecent solicitation
of a child, in violation of K.S.A. 1985 Supp. 21-3511. On June 6, 1989, Clements was
conditionally released to parole. On June 13, 1989, one week into his parole, Clements
sexually battered a 17-year-old male. On November 5, 1989, Clements sodomized a 15-
year-old male. In 1990, a jury found Clements guilty of one count of sexual battery and
one count of aggravated criminal sodomy.
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In 2017, the Kansas Department of Corrections (KDOC) notified the Attorney
General of Clements' imminent release and that Clements may meet the criteria of a
sexually violent predator. The State then petitioned the Butler County District Court to
involuntarily commit Clements under the KSVPA.
The trial court held a three-day bench trial to determine whether Clements met the
definition of a sexually violent predator and, therefore, involuntary commitment was
appropriate. Dr. Bradford Sutherland, a psychologist from Lansing Correctional Facility,
testified at trial. Dr. Sutherland completed a forensic evaluation report on Clements and
determined that he met the legal criteria for a sexually violent predator. Dr. Sutherland
diagnosed Clements with pedophilic disorder, hebephilic disorder, and an avoidant and
compulsive personality disorder. Dr. Sutherland based these diagnoses primarily on
Clements' criminal history and autobiography. Dr. Sutherland diagnosed Clements using
the Diagnostic and Statistical Manual of Mental Disorders—5th edition (DSM-5), a
standardized manual used in psychiatry and psychology. Dr. Sutherland criticized a
report prepared by Clements' expert witness because the report said that Clements'
pedophilia was in remission, but the DSM-5 does not provide criteria for diagnosing
remission in pedophilic disorder.
Dr. Sutherland explained that Clements' personality disorder diagnosis affected his
risk of repeating acts of sexual violence. According to Dr. Sutherland, Clements has the
ability to understand behavior and "present as socially conforming on the face all the
while having the capacity to engage in behaviors that fly under the radar," which would
allow him to commit offenses without prosecution. Dr. Sutherland noted that "the number
of victims Clements was convicted upon" was relatively small, compared to Clements'
own self-report of a significant number of additional victims. This difference showed Dr.
Sutherland that Clements could "avoid detection." Dr. Sutherland scored Clements a 6 on
the Static-99R, an actuarial tool for assessing the risk of committing a new sexually
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violent offense. This score placed Clements within the well-above-average level of risk
as compared to other sex offenders. Thus, Dr. Sutherland concluded that Clements has
serious difficulty controlling his dangerous behavior.
Dr. Mitchell Flesher evaluated Clements at Larned State Hospital and also
determined that Clements met the legal criteria for a sexually violent predator. Dr.
Flesher diagnosed Clements with pedophilic disorder. Dr. Flesher could not answer
whether pedophilic disorder could go into remission because whether remission is at all
possible is still debated in the scientific literature. Although the DSM-5 describes
pedophilia as a lifelong illness, Dr. Flesher acknowledged that elements of the disorder
may change over time. Actuarial tools used to evaluate the likelihood of repeating sexual
offenses placed Clements high on the scale of risk. He had a 94.2 percentile ranking,
which meant he was more likely to reoffend than 94 out of 100 sex offenders. In addition
to these actuarial tools, Dr. Flesher determined that Clements had serious difficulty in
controlling his dangerous behavior based on his crimes of conviction, some of which
occurred within a short time of being supervised. Dr. Flesher said that Clements
"demonstrated an ability to find victims in a variety of settings. And so that makes it
more difficult to reduce access." Victim access is a factor which increases risk of
recidivism. Clements' annual report showed that Clements admitted to having a history of
paying or trading for sexual favors. Clements acknowledged that "most of my victims
were that way. Everybody gets something out of it."
Clements testified on his own behalf about what he had learned in his second sex
offender treatment program. Clements explained that he learned about his deviant habit
cycle. He learned that a great deal of stress acts as a trigger which begins the cycle.
Clements testified that his treatment program recommended keeping a journal. He stated
that the purpose of journaling is two-fold: (1) "[y]ou can see where stressors are building
up" and (2) "it's something that, along with accountability partners, you can use to help
figure out appropriate ways of dealing with things. If you weren't real sure about how you
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should've done it, you can check and get feedback." Clements diligently followed the
advice to keep a regular journal. Clements also learned that he needed to stay away from
minors by avoiding or leaving places with a high proportion of children when possible or
staying around other adults when necessary. Clements stated that he had been using the
intervention skills since 2003, that he had stopped masturbating to thoughts of past
victims, that he had quit seeking out sexual partners, and that he had not engaged in any
sexual behavior with another person since 2003.
In the treatment program, Clements participated in group sessions. Other group
members told stories of how they were abused as children and the effects that it had on
them. Clements realized for the first time that, even with his victims who consented,
damage was done to them, their families, and friends. Clements said that he feels grief,
sorrow, and shame when he thinks about past victims. He also discovered that if he was
not having inappropriate relations against the rules, he did not have to worry about
getting caught, which reduced the stress in his life and prevented the deviant cycle from
starting.
But Clements also testified about his extensive sexual offenses, as detailed in his
autobiography. Clements could not remember feeling remorse after he "went hog wild" in
1972 and 1973. Clements explained that in high school he was active in debate, forensics,
and choir to be around people his own age because he did not like what he was doing
with younger people. He testified that he tried to stop his behavior in high school through
self-control, but it did not work. Further, Clements described previous unsuccessful sex
offender treatment programs.
Clements' expert, clinical psychologist Dr. Gerald Gentry, testified on his behalf.
Like Drs. Sutherland and Flesher, Gentry diagnosed Clements with pedophilic disorder,
but he added obsessive-compulsive disorder. Gentry had not conducted any actuarial
tests, although he reviewed the data supplied by Drs. Sutherland and Flesher. Dr. Gentry
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agreed with their actuarial assessments, which placed Clements in a group almost four
times more likely to reoffend than the average sex offender. But Dr. Gentry contended
that Clements would be an outlier in that group because of his remorse and current state
of mind. Although Dr. Gentry asserted that Clements' pedophilic disorder was in
remission, he acknowledged that the DSM-5 provided no instruction or guidance for
diagnosing remission in pedophilic disorders. By contrast, Dr. Gentry testified that for
"all of the other paraphilic disorders in that section of the DSM there is guidance
provided to the clinicians." The DSM-5 describes pedophilia as a lifelong condition, but
elements of the disorder may change over time.
The trial court ruled that Clements was a sexually violent predator subject to
involuntary commitment. Clements timely appealed. But before his appeal was docketed,
Clements petitioned the trial court for release following his first annual review.
In May 2019, the trial court held a hearing to determine if probable cause existed
to believe that Clements' mental abnormality or personality disorder had significantly
changed so that he was safe to be placed in transitional release. The trial court denied
both Clements' petition for release and his request for an independent examination.
Clements timely appeals.
Does Sufficient Evidence Support the Trial Court's Determination That Clements is a
Sexually Violent Predator?
Involuntary Commitment Proceedings
When considering the sufficiency of evidence in a sexually violent predator
proceeding, appellate courts must view the evidence in the light most favorable to the
State. Further, appellate courts must be convinced that a reasonable fact-finder would
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have found that the State met its burden to show beyond a reasonable doubt that the
person is a sexually violent predator. In re Care & Treatment of Cone, 309 Kan. 321,
332-33, 435 P.3d 45 (2019).
The State must prove beyond a reasonable doubt four elements to establish that a
person is a sexually violent predator. In re Care & Treatment of Williams, 292 Kan. 96,
253 P.3d 327 (2011). The four elements are as follows:
"(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." 292 Kan. at 105-06.
Clements argues that the State failed to show beyond a reasonable doubt that he
continued to have difficulty controlling his dangerous behavior. Thus, only the fourth
element is at issue here. See 292 Kan. at 107 (holding that issues not briefed are waived
or abandoned on appeal). Clements argues that his abstinence since 2003 shows his
capacity for self-control. He notes that the record contains no prison disciplinary report of
a sexual nature. He contends that he has shown insight into his deviant habit cycle, the
damage he had inflicted on his victims, how to manage stress, and how to use various
interventions. Then, Clements argues that insufficient evidence supports the trial court's
ruling that he continues to have serious difficulty controlling his dangerous behavior.
Thus, Clements argues that the trial court erred in determining that he is a sexually
violent predator subject to involuntary commitment.
Nevertheless, a reasonable fact-finder could find that the State proved beyond a
reasonable doubt that Clements has serious difficulty controlling his dangerous behavior.
The State's experts testified at length to that effect, and Clements' expert witness did not
sufficiently rebut that testimony. In fact, all three doctors agreed on the diagnosis of
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pedophilic disorder and on Clements' placement in the well-above-average risk category.
The only difference of opinion was Dr. Gentry's unsupported claim that Clements was an
outlier in this category because his pedophilia was in remission.
The trial court explicitly weighed the testimony of the three doctors in its written
ruling. The court noted Dr. Gentry's difference of opinion, stating the following:
"The distinction, however; in his report, was that Mr. Clements was in remission.
Although Dr. Gentry admitted that a remission designation on Pedophilic Disorder is not
listed in the current DSM V, his assessment remained the same. Dr. Gentry did not use
any actuarial instruments and does not believe that in and of themselves that they are
valid predictors. However, he could not say that they are not accepted in the field and
developed for the purpose of measuring potential recidivism.
"Dr. Gentry believes that Mr. Clements age: 59 currently; is a predominant factor
that should be controlling. He believes that advance age is as likely to similarly diminish
the frequency of sexual behavior involving children as it does other paraphilically
motived and normophilic behavior. Admittedly, the Static-99R similarly takes age into
account but Mr. Clements still scored in the above average range. The Static-99R has
been scientifically studied, validated and peer-reviewed."
In summing up, the trial court also stated: "This court is not willing to accept that
Mr. Clements no longer poses a threat to minor children because of his advancing age."
The court then adopted the testimony of Dr. Flesher, determining that Clements is a
sexually violent predator based on his convictions, history of offending and deviance, his
personality characteristics, and "last but not least his level of risk at large."
On appeal, this court's standard of review asks whether, after viewing all the
evidence in the light most favorable to the State, we are convinced a reasonable fact-
finder could have found that the State met its burden to prove beyond a reasonable doubt
that Clements is a sexually violent predator. See In re Care & Treatment of Colt, 289
Kan. 234, 243-44, 211 P.3d 797 (2009). This court does not reweigh the evidence,
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determine the credibility of witnesses, or resolve conflicts in the evidence. See Williams,
292 Kan. at 104. Viewing the evidence in the light most favorable to the State, we
conclude that the State met its burden to show beyond a reasonable doubt that Clements
had serious difficulty controlling his dangerous behavior, consistent with the definition of
a sexually violent predator. And thus, Clements' argument that he is not a sexually violent
predator fails.
Annual Review
When a petitioner committed to the sexually violent predator program demands a
hearing on his annual review, he or she "bears the burden to establish probable cause at
an annual review hearing." Thus, the trial court must "consider the evidence in the light
most favorable to the committed person and resolve all conflicting evidence in that
person's favor." In re Care & Treatment of Burch, 296 Kan. 215, 225, 291 P.3d 78 (2012)
(citing In re Care & Treatment of Sipe, 44 Kan. App. 2d 584, 592, 239 P.3d 871 [2010]).
Upon such a demand, the trial court must "determine whether there is sufficient evidence
to cause a person of ordinary prudence and action to conscientiously entertain a
reasonable belief that the committed person's mental abnormality or personality disorder
has so changed that the person is safe to be placed in transitional release." Sipe, 44 Kan.
App. 2d at 592-93.
At Clements' annual review, the trial court determined that Clements had failed to
show probable cause to believe that his mental abnormality or personality disorder has
significantly changed so that he is safe to be placed in transitional release. Although
Clements filed a notice of appeal from that decision, his brief contains no argument that
the trial court erred in making its probable cause determination. A failure to adequately
brief an issue results in abandonment or waiver. In re Care & Treatment of Ramage, 53
Kan. App. 2d 209, 214, 387 P.3d 853 (2016). Thus, Clements' argument fails.
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Did the Trial Court Abuse Its Discretion in Denying Clements' Request for an
Independent Examiner?
On appeal, Clements argues that the trial court abused its discretion by denying his
request to appoint an independent examiner. In particular, he asserts that the trial court
made an error in law by not following our Supreme Court's precedent in Burch. Clements
argues as follows: (1) that the court did not properly consider that probable cause might
be established through an independent examination by a qualified professional and (2)
that such consideration is required under Burch. Clements contends that he cannot hope
to establish the requisite probable cause without a report from an independent examiner.
Under K.S.A. 2018 Supp. 59-29a08, a person involuntarily committed as a
sexually violent predator has the right to an annual review process. After receiving an
annual written notice, the committed person may petition the trial court for release from
the program. The court must then conduct an annual review hearing. Griffin v. Bruffett,
53 Kan. App. 2d 589, 594-95, 389 P.3d 992 (2017). At the hearing, the committed person
has the burden to show probable cause to believe that his or her mental abnormality or
personality disorder has significantly changed so that he or she is safe to be placed in
transitional release. K.S.A. 2018 Supp. 59-29a08(c) authorizes the trial court to appoint
an examiner before the annual review hearing, stating the following:
"The person may retain, or if the person is indigent and so requests the court may
appoint, an examiner . . . and the examiner shall have access to all available records
concerning the person. If the person is indigent and makes a request for an examiner, the
court shall determine whether the services are necessary and shall determine the
reasonable compensation for such services. The court, before appointing an examiner,
shall consider factors including the person's compliance with institutional requirements
and the person's participation in treatment to determine whether the person's progress
justifies the costs of an examination. The appointment of an examiner is discretionary."
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Because the appointment is discretionary, this court reviews a trial court's
decision not to appoint an independent expert under an abuse of discretion standard. See
In re Care & Treatment of Twilleger, 46 Kan. App. 2d 302, 310, 263 P.3d 199 (2011). A
judicial action constitutes an abuse of discretion if (1) it is arbitrary, fanciful, or
unreasonable; (2) it is based on an error of law; or (3) it is based on an error of fact.
Biglow v. Eidenberg, 308 Kan. 873, 893, 424 P.3d 515 (2018).
Here, Clements points to no factual error made by the trial court. Rather, Clements
argues that the court made an error of law.
Clements contends that the trial court failed to follow precedent set out in Burch
when it considered his request for an independent examination. Clements does not point
out the relevance of Burch to his case. This is important because Burch contains an
important factual difference. For example, Timothy Burch requested an independent
expert and the court appointed an expert. The issue in Burch was whether Burch's
evidence, including the expert's report, showed probable cause that his mental
abnormality had changed to the extent that he was safe to be placed in transitional
release. Burch, 296 Kan. at 217-18. Here, the court denied Clements' request for an
independent expert, an issue not addressed in Burch. Thus, Clements fails to show how
the Burch decision applies to his case or how the failure to follow this precedent would
be an error of law.
Then, the remaining issue is whether the court's decision is arbitrary, fanciful, or
unreasonable, that is, no reasonable person would have taken the view adopted by the
trial court. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011). To make its
determination, the court reviewed reports which contained elements both supporting and
undermining Clements' request. The court here balanced the information and made its
decision.
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In terms of privileges, Clements had progressed to and maintained the Purple
Royal Privilege Level, the highest level of privileges available to a resident. To earn this
status, residents must attend 100% of groups/classes and maintain constant program
advancement, among other good behavior requirements. But only a year into the
program, Clements could not progress beyond Tier One of the Sexual Predator Treatment
Program in that limited time. Although Clements' Static-99 score decreased from 6 to 4,
this score of 4 still placed him in the "Above Average Risk" category. Clements' score on
SOTIPS, a statistically derived dynamic measure assessing risk, placed him in the low
risk category, with no areas in the "Very Considerable Need for Improvement" category.
But his sexual interests landed in the "Considerable Need for Improvement" range, while
emotion management scored in the "Some Need for Improvement" category. For that
reason, his diagnosis remained pedophilic disorder.
The trial court also considered a factor required by K.S.A. 2018 Supp. 59-
29a08(c), that is, whether Clements' progress justifies the cost of an independent
examiner. The court described the cost of the previous independent expert, stating: "So
you had Larned, you had Dr. Flesher, and then I gave you a third doctor, Dr. Gentry at
the tune of 12 or 13,000 who did another independent exam." The court noted that the
benefit of the previous exam may not have justified the cost, stating it would not appoint
Dr. Gentry again because the quality of his testimony was not "influential with the court."
Then the court stated that there are very few experts in the field, noting that it did not
have the credentials of Dr. Nystrom―the independent examiner that Clements had
requested. In denying Clements' request, the court stated the following:
"I do want to note that I do believe he's making progress and that he's
participating. And, again, I do think it's important to have a ruling on the initial findings.
And this court's not suggesting that if he makes as much progress next year and petitions
the court that the court wouldn't at that time allow him to be independently evaluated and
at its discretion by Dr. Nystrom at that time. I just don't believe that it's been long enough
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that he's sufficiently progressed through the program like everyone has to or that there is
cause to believe that his diagnosis has changed."
We conclude that given the evidence presented, the trial court's ruling was not an
abuse of discretion. Reasonable persons could agree with the trial court's conclusion that
Clements' treatment had not progressed sufficiently to justify appointment of an
independent examiner.
For the preceding reasons, we affirm the trial court.
Affirmed.
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