In re Care and Treatment of Foster

127 P.3d 277

In the Matter of the CARE AND TREATMENT OF Randy FOSTER, Appellant.

No. 91,324.

Supreme Court of Kansas.

February 3, 2006.

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Jessica R. Kunen, of Lawrence, argued the cause and was on the brief for appellant.

Nola F. Wright, assistant attorney general, argued the cause, and Phill Kline, attorney general, was with her on the briefs for appellee.

The opinion of the court was delivered by NUSS, J.:

Randy Foster appeals from a jury finding that classified him as a sexually violent predator and the resulting involuntary commitment to the Larned State Security Hospital. A split Court of Appeals affirmed in In re Care & Treatment of Foster, 33 Kan.App.2d 717, 107 P.3d 1249 (2005). This court granted Foster's petition for review under K.S.A. 20-3018(b).

The issues on appeal, and this court's accompanying holdings, are as follows:

1. Did the assistant attorney general commit reversible misconduct in her opening statement? Yes.

2. Did the district court err in admitting the entire Hospital report on Foster as an exhibit? Yes.

3. Did the district court err in instructing the jury on issues relating to the commitment, treatment, and possible release of Foster? No.

Accordingly, we reverse.

FACTS

On or about February 3, 2003, the State of Kansas filed a petition in Douglas County District Court pursuant to the Kansas Sexually Violent Predator Act (KSVPA), K.S.A. 59-29a01 et seq. The petition alleged that Randy Foster was a sexually violent predator as defined by that statute and should be involuntarily committed for treatment. After a hearing on March 10, 2003, the district court found probable cause to believe that Foster met the sexually violent predator criteria.

Based on the district court's finding, Foster was admitted to the Larned State Security Hospital (Hospital) on March 19, 2003, for an evaluation pursuant to the KSVPA. The Hospital's evaluating clinicians found that Foster qualified as a sexually violent predator. The Hospital's 25-page report was filed with the district court in April 2003.

A jury trial commenced 5 months later on September 19, 2003. During the opening statement, counsel for the State commented on the events leading up to the jury trial. She told the jury that Foster's case was reviewed by a "committee called a multidisciplinary team" that reviewed Foster's records, as well as his social and criminal history, and thereafter made a determination as to whether he was at risk to reoffend. Counsel explained that the case was passed on to a "prosecutor's committee" composed of several attorneys who made a determination based on the records and psychologists' opinions as to whether Foster was at risk to reoffend. Counsel told the jury that afterward, a probable cause hearing was held where a judge found enough evidence to go forward under the KSVPA.

Two witnesses testified for the State: Rex Rosenberg, a licensed master's level psychologist and licensed clinical psychologist at the Hospital, and J.L.L. Fernando, M.D., a board-certified psychiatrist at the Hospital. Foster called no witnesses and put on no evidence, electing to force the State to simply make its case. He also made only two objections: to the admission of the Hospital report and to a jury instruction, as explained later in the opinion.

Rosenberg testified first, as follows.

When the assistant attorney general asked about the screening process respondents go through, Rosenberg responded:

"A: Well, before they leave the prison system, the clinical services evaluation is completed by clinicians in that system and then [1] the information on each person who has been convicted of and incarcerated for a sex offense goes along to the multidisciplinary team. They do a review of the information and make a determination whether they see the person as a high risk to offend, and then [2] the information goes along to the prosecutor's review committee and that group reviews it and then if that group decides to proceed, the next step is [3] the probable cause hearing; and if the person makes it through all of those steps, the final step would be an order to the state security hospital for this evaluation."

Rosenberg participated in the evaluation of Foster and prepared the 25-page Hospital report with Dr. Fernando. He testified regarding his evaluation of Foster, including the procedure utilized and the documents and literature he relied upon. Rosenberg interviewed Foster for approximately 6 hours and 20 minutes and testified at length about Foster's history of sexual behavior and sexual offenses.

Foster informed Rosenberg that when he was 5 years old, he was molested by a 12-year-old boy. At the same age, Foster's father forced anal sex upon him. Foster admitted to Rosenberg that when he was 14 years old, his 4-year-old niece performed oral sex on him. Afterwards, he forced her to engage in anal sex.

Between the ages of 16 and 42, Foster had sexual contact with 15 adult women of roughly the same age. Foster married five of these women.

In 1985, Foster was charged in Texas with indecency with a child based on allegations of sexual intercourse with a 7-year-old girl. When asked about the incident, Foster stated that he had been charged with sexual assault, but that the witnesses failed to appear. Foster spent 6 months in prison, but was later released.

From 1986 to 1989, Foster was married to a woman in Montana. He was charged with sexually molesting her two young girls. Foster acknowledged that it was possible the allegations were true.

In 1993, Foster was convicted of two counts of aggravated incest for acts of oral sex and fondling involving two minor females, ages 4 and 6. He was married to the victims' mother at the time. Also in 1993, Foster was convicted of attempted aggravated sexual battery for incidents of sexual contact with a young girl who was a friend of his oldest stepdaughter.

Foster told Rosenberg that after he began having sexual fantasies about his stepdaughters, he initiated wrestling in order to touch them vaginally. He eventually masturbated the girls and had them masturbate him and perform oral sex on him. Foster also acknowledged that he penetrated the older girl with his penis. He felt justified in molesting the girls because he learned that they had been molested by their father.

Although Foster acknowledged several instances of sexual behavior with minors, he told Rosenberg that he did not believe he was a danger to children anymore. Rosenberg testified, however, that he believed Foster viewed young girls as sex toys and was aroused by them. According to Rosenberg, Foster thought he was merely teaching the girls to be better sex partners. Rosenberg did not believe Foster showed remorse for his past actions. While Rosenberg thought that Foster was candid during some of the interview, he also believed that Foster omitted information at times.

In 1994, Foster completed a sex offender treatment program in prison. Further, as a condition of his parole in 1998, Foster was required to successfully complete an outpatient sex offender after-care program. Although he participated in the program for 2 years, he was eventually terminated from the program for lack of progress. Due to his lack of progress in the program, Foster's parole was revoked in August of 2000.

Foster was able to identify for Rosenberg several high-risk situations that might cause relapse, including being around nude children, being alone with girls, attending strip clubs, consuming alcohol, viewing pornography, and looking for single parents. Although Foster identified the risk factors, Rosenberg felt that Foster's termination from the outpatient sex offender program indicated Foster's inability to grasp the necessary skills to prevent reoffending.

Several tests were administered to Foster, including the Minnesota Multiphasic Personality Inventory (MMPI) and the Minnesota Sex Offender Screening Tool. The MMPI indicated that Foster's prognosis is "guarded," because he expects others to change to meet his expectations and he rarely engages in serious examination of his own behavior. The MMPI results showed Foster to be

"angry, belligerent, rebellious, resentful of rules and regulations, and hostile toward authority figures. He is likely to be impulsive, unreliable, egocentric, and irresponsible. He often has little regard for social standards and often shows poor judgment and seems to have difficulty planning ahead and benefitting from previous experiences. He makes a good first impression, but long term relationships stand to be rather superficial and unsatisfying."

The Minnesota Sex Offender Screening Tool found Foster's risk for reoffending was moderate, or a 45 percent risk of recidivism within 6 years. The risk percentage only estimated the chance of Foster being arrested again, however, and not the chance of a sexual act occurring. Foster was found to have a moderate range of risk for offending, or a score of 5, based on a score of 1 to 13, with 1 being the lowest.

Based on criteria from the Diagnostic and Statistical Manual of Mental Disorders, 4th edition (DSM-IV), Rosenberg testified that Foster's diagnosis was (1) pedophilia, sexually attracted to females, nonexclusive type; (2) antisocial personality disorder with narcissistic features; and (3) alcohol dependence, in full sustained remission in a controlled environment. Rosenberg opined that the diagnosis of pedophilia, coupled with the antisocial personality disorder, increased the chance that Foster will reoffend because of his disregard for others and societal standards, and his impulsivity. Ultimately, Rosenberg concluded that Foster is likely to engage in repeated acts of sexual violence because Foster has difficulty controlling his sexually deviant behavior.

The State moved to admit the 25-page report signed by Rosenberg, Fernando, and Mayda Nel Strong, Ph.D., a licensed psychologist/reviewer,...