NOT DESIGNATED FOR PUBLICATION
No. 126,085
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Matter of the Care and Treatment of
ROBERT DAVIS JR.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; ROBB W. RUMSEY, judge. Submitted without oral
argument. Opinion filed January 19, 2024. Affirmed.
Charles Joseph Osborn, of Osborn Law Office, LLC, of Leavenworth, for appellant.
Ryan J. Ott, assistant solicitor general, and Kris W. Kobach, attorney general, for appellee.
Before WARNER, P.J., ATCHESON, J., and MARY E. CHRISTOPHER, S.J.
PER CURIAM: Since being confined for treatment as a sexually violent predator in
December 2018, Robert Davis Jr. has annually requested that the Sedgwick County
District Court order his placement in a transitional living program—the final preparatory
step to being conditionally released. He has been denied each time. In this appeal, Davis
challenges the district court's denial based on the 2022 report and supplement prepared by
members of the treatment program's clinical staff recommending no change in his
placement. We find no error in the district court's ruling and affirm.
By statute, persons held for treatment under the Kansas Sexually Violent Predator
Act, K.S.A. 59-29a01 et seq., are to be clinically evaluated each year and a report of their
status is to be forwarded to the district court that ordered their commitment. K.S.A. 2022
Supp. 59-29a08(a). The inmates may petition the appropriate district court for review
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hearings to consider whether they should be placed in the transitional release phase of the
treatment program. K.S.A. 2022 Supp. 59-29a08(b). The hearing process unfolds in two
sequential steps. The district court initially determines if the petitioner, here Davis, has
shown probable cause to believe the mental abnormality triggering his confinement has
sufficiently changed to warrant placement in transitional release. K.S.A. 2022 Supp. 59-
29a08(d). If the petitioner makes that showing, the district court must hold a full
evidentiary hearing at which the State bears the burden of proving beyond a reasonable
doubt the petitioner is unfit for transitional release. K.S.A. 2022 Supp. 59-29a08(g).
Here, Davis sought a review hearing for consideration of the 2022 report on his
status, along with a supplemental report. The district court appointed a lawyer to
represent Davis at the probable cause hearing but declined to authorize an independent
clinical evaluation of Davis. And Davis was not present for the hearing. See K.S.A. 2022
Supp. 59-29a08(c) (The district court may, in its discretion, order an independent clinical
examination of an indigent petitioner in advance of the probable cause hearing.); K.S.A.
2022 Supp. 59-29a08(e) (petitioner entitled to legal representation at probable cause
hearing; but petitioner need not be present).
After reviewing the annual report and related materials and hearing argument from
the lawyers for Davis and the State, the district court concluded Davis failed to
demonstrate probable cause that his deleterious mental condition had substantially
improved. The hearing record established that Davis remained in the first phase of the
three-phase treatment protocol for placement in transitional release—the step
immediately preceding conditional release and then, ultimately, full release from the
treatment program.
The report and supplement showed Davis generally complied with many of the
program requirements and objectives. But the picture was not categorically positive.
Davis didn't consistently maintain his medication regimen and displayed negative
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behavioral traits as a result. Davis directed angry outbursts at staff and other program
participants. And Davis—in the view of the clinicians preparing the reports—did not deal
appropriately with a sexual attraction he developed for one of his therapists. The report
noted that several actuarial instruments designed to predict the likelihood of recidivism
among sex offenders placed Davis in what would be considered at least a moderate range
for reoffending. The clinicians concluded Davis was appropriately placed in the first
stage of the treatment program.
In the district court, Davis' lawyer assailed the original commitment proceeding as
unfair and disputed the effectiveness of the treatment program generally as a genuinely
rehabilitative process for sex offenders rather than as tool to continue their confinement
beyond the prison terms they had already served. Those rhetorical thunderclaps produced
no legal lightning. They are not germane to the narrow issue relevant in an annual review
hearing.
The district court declined to order a full evidentiary hearing, effectively denying
Davis relief. Davis has appealed that ruling.
On appeal, Davis basically argues he satisfied his burden of demonstrating
probable cause to believe his mental condition had substantially improved, thereby
warranting an evidentiary hearing on his request to be placed in transitional release. We
owe no particular deference to the district court's conclusion because it rests on
essentially undisputed evidence and involved no credibility determinations. In re Estate
of Oroke, 310 Kan. 305, 310, 445 P.3d 742 (2019) ("Application of legal principles to
undisputed facts involves questions of law subject to de novo review."); In re Care &
Treatment of Burch, 296 Kan. 215, 223, 291 P.3d 78 (2012) (unlimited appellate review
of district court's probable cause determination in annual review hearing based on clinical
reports and lawyers' arguments). We, like the district court, must view the hearing record
in a light favoring Davis and in support of a probable cause finding. 296 Kan. at 224.
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In this context, "probable cause" mirrors the customary definition given the phrase
in the criminal law: "[W]hether 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." In re Care & Treatment of Sipe, 44 Kan. App. 2d
584, 593, 239 P.3d 871 (2010); see In re Care & Treatment of Miles, 47 Kan. App. 2d
429, 434-35, 276 P.3d 232 (2012) (adopting standard set out in Sipe and noting match
with criminal law test for probable cause). Although probable cause is a comparatively
relaxed standard, falling well below a preponderance of the evidence, it still requires
evidence of some substance in support of the proposition to be proved. See State v.
Walker, 283 Kan. 587, 595, 153 P.3d 1257 (2007) (Substantial evidence is that which
might cause a reasonable person to accept a given factual conclusion.).
Having reviewed the hearing record and considering the limited issue before us,
we find the district court correctly concluded Davis failed to establish probable cause that
he should be placed in the transitional phase of the treatment program. The annual report
and supplement conclude Davis remains properly placed in the initial treatment phase and
cite substantial factual bases for the conclusion. Davis failed to adhere to his medication
regimen, leading to problematic behavior. He apparently failed to deal appropriately with
certain sexual urges he felt toward a therapist. And actuarial testing suggested he
remained at a demonstrable risk for reoffending. See In re Care & Treatment of Cone,
309 Kan. 321, 332, 435 P.3d 45 (2019) (finding scientific foundation for actuarial test
designed to measure potential recidivism of sex offenders sufficiently reliable, so test
results admissible in commitment proceeding). Davis neither undermined the factual
representations in the report and supplement nor called into question the credibility of the
clinicians preparing those materials.
In short, the record fails to show marked positive changes in Davis' mental
condition that would foster a reasonable belief he is an appropriate candidate for
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transitional placement, in effect skipping two levels of progressive treatment conducted
within the facility.
Affirmed.
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