In the Matter of the Care and Treatment of Randy A. Foster, Appellant, 33 Kan. App. 2d 717

Malone, J.: Randy A. Foster appeals his commitment under the Kansas Sexually Violent Predators Act (the Act), K.S.A. 59-29a01 et seq. Foster claims that the trial court erred in instructing the jury, that the trial court erred in admitting into evidence the evaluation report from the Lamed State Security Hospital (Larned), and that the State committed prosecutorial misconduct in its opening statement. We affirm. We will- not recite Foster’s entire history of sexual behavior and sexual offenses as the history is unnecessary to-address the issues, raised in this appeal.

In 1993, Foster was convicted of two counts of aggravated incest and one count of attempted aggravated sexual battery. The State filed a petition under the Act prior to Foster’s parole in 1998, but the petition was dismissed as untimely. Foster’s parole was revoked in August 2000 for failure to successfully complete an outpatient sex offender aftercare program. On February 3, 2003, prior to Foster’s release date, the State filed another petition under the Act, alleging that Foster was a sexually violent predator who should be involuntarily committed for treatment. See K.S.A. 2004 Supp. 59-29a04.

On March 10, 2003, a probable cause hearing was héld. See K.S.A. 2004 Supp. 59-29a05. The court found probable cause existed to believe Foster was a sexually violent predator. Additionally, the court ordered an evaluation from Lamed. The evaluation report was completed on March 28, 2003, and a copy was sent to the parties and the court. A jury trial commenced on September 19, 2003. The State’s evidence consisted of two witnesses: Rex Rosenberg, a psychologist and licensed clinical psychotherapist employed by Lamed, and Dr. J. L. Femando, a psychiatrist.

Rosenberg has performed evaluations pursuant to the Act since 1996 and, at the time of trial, had completed 108 such evaluations. Rosenberg testified that as part of the commitment proceedings, respondents go through a detailed screening process. This process includes a clinical services report, a review by the multidisciplinary team, a review by state prosecutors, a probable cause hearing, and finally an evaluation at Lamed. Rosenberg identified the Lamed evaluation report as being the document he co-authored with Dr. Fernando concerning Foster s evaluation.

Rosenberg described to the jury the course of the evaluation, as well as the subject areas covered in the interviews and examinations of Foster. Rosenberg testified concerning Foster’s history of sexual behavior and sexual offenses. He also testified about several tests administered to Foster, including the Minnesota Multiphasic Personality Inventory (MMPI) and the Minnesota Sex Offender Screening Tool. Foster’s diagnosis as defined by the American Psychiatric Ass’n, Diagnostic & Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV), was pedophilia, sexually attracted to females, nonexclusive type.

He was also diagnosed as antisocial personality disorder, with narcissistic features. His third diagnosis was alcohol dependence, in full sustained remission in a controlled environment. Rosenberg concluded that Foster was likely to engage in repeated acts of sexual violence. The State moved to admit the evaluation report prepared by Rosenberg. Foster objected on the grounds that it was cumulative, since Rosenberg’s testimony covered the information in the report. The trial court admitted the report, finding that the testimony was so lengthy that the jurors might need the report to refresh their memory. Dr.

Femando testified that he had interviewed Foster and reviewed his records. Dr. Fernando agreed with the evaluation report, which was admitted into evidence. He stated that he believed Foster was at risk to reoffend and would benefit from long-term treatment. Foster did not present any evidence. The jury returned a verdict finding Foster to be a sexually violent predator as defined by the Act. The court committed Foster to the custody of the Secretary of the Kansas Department of Social and Rehabilitation Services (SRS) for care and treatment. Foster timely appeals.

Jury instructions Foster first argues the trial court improperly instructed the jury when it included issues related to commitment, treatment, and possible release of Foster in tire jury instructions. Jury instructions are to be considered together and read as a whole, and where they fairly instruct the jury on the law of the case, error in an isolated instruction may be disregarded as harmless. If the instructions are substantially correct and die juiy could not reasonably be misled by them, the instructions will be approved by the appellate court.

In re Care & Treatment of Hay, 263 Kan. 822, 841-42, 953 P.2d 666 (1998). Defense counsel objected to Instruction No. 2, which stated: “This proceeding has been commenced by the filing of a petition by the petitioner, State of Kansas. This trial is to determine whether the respondent, Randy A. Foster, is a sexually violent predator who should be civilly committed to the custody of the Secretary of Social and Rehabilitation Services for control, care and treatment until such time as his mental abnormality or personality disorder has so changed that he is safe to be at large.

It is the duty of the jury to determine whether Randy A. Foster is a sexually violent predator. “You have nothing whatever to do with the nature of any civil commitment or the length of any commitment which may follow in the event you find that die respondent is a sexually violent predator.” Foster objected on the grounds that the instruction diverted the juiy’s attention from the issue to be determined, whether Foster was a sexually violent predator, and focused the jury’s attention on Foster’s need for commitment and treatment.

The State pointed out that the instruction was necessary to clarify the nature of the proceedings because Foster’s counsel had mentioned that the State wished to keep Foster “incarcerated.” The trial court overruled Foster’s objection. In support of this argument, Foster relies upon People v. Collins, 10 Cal. App. 4th 690, 12 Cal. Rptr. 2d 768 (1992). In Collins, the jury was instructed that the respondent “may be hospitalized” if found to be mentally ill, but was “presumed to be entitled to be released on parole” if the jury found otherwise. 10 Cal. App. 4th at 693-94.

The jury received two verdict forms: The first stated that the respondent met tire criteria for commitment and should be treated as an inpatient, and the second stated that the respondent did not meet the criteria and should be released on parole. The California Court of Appeals ruled that it was error to instruct on the consequences of a mental illness verdict in such a way that it encouraged the jury to ignore the evidence and decide the case based upon fear of the respondent’s release. 10 Cal. App. 4th at 695-96.

The court noted that the error in the instruction was exacerbated by the use of die verdict forms, as well as the fact that the prosecutor informed the jury that if it did not find the respondent to be a mentally disabled person, he would be back on the streets again. 10 Cal. App. 4th at 696. The court concluded that the cumulative effect of tírese errors was prejudicial and entitled the respondent to a new trial. 10 Cal. App. 4th at 698. Foster’s case is distinguishable from Collins. Here, the jury was not instructed that Foster would be “released on parole” if he was not committed.

The language about Foster’s potential commitment and treatment was not included on the verdict form, and the State did not emphasize to the jury that Foster would be released into society if he was not committed. Furthermore, unlike the jury in Collins, Foster’s jury was specifically instructed that it had “nothing whatever to do with the nature of any civil commitment or the length of any commitment which may follow in the event . . . that the respondent is a sexually violent predator.” (Emphasis added.) The Missouri Court of Appeals addressed a similar issue in Boone v. State, 147 S.W.3d 801 (Mo. App. 2004).

The jury instruction in Boone provided that if the jury found the respondent to be a sexually violent predator, die respondent would be committed to the department of mental health for control, care, and treatment. The respondent objected to the instruction on the ground that his potential care and treatment was not a relevant concern for the jury. The Missouri court held: “We find that Instruction No. 8 did not have a substantial potential for prejudicial effect.

An average jury would understand that a finding that Boone was a SVP [sexually violent predator] would subject him to the ‘control, care and treatment’ of the department of mental health. Instruction No. 8 did not improperly minimize the jury's responsibility in finding whether Boone was a SVP. Therefore, we find the trial court did not err in submitting Instruction No. 8.” 147 S.W.3d at 808. Here, Instruction No. 2 was drawn from K.S.A. 2004 Supp. 59-29a07.

The instruction informed the jury that the purpose of the trial was to determine whether Foster was a sexually violent predator who should be civilly committed for control, care, and treatment. The instruction also told the jury that such care and treatment would continue “until such time as his mental abnormality or personality disorder has so changed that he is safe to be at large.” We do not read Instruction No. 2 as presupposing or implying to the jury that Foster has a mental abnormality or personality disorder.

Rather, the instruction only informed the juxy how long Foster s treatment would last if commitment was necessary. The second sentence of Instruction No. 2 was not artfully drafted and contained unnecessary language about Foster s potential care and treatment. However, we cannot read this sentence in isolation from the remainder of the instructions. Instruction No. 2 and Instruction No. 3 specifically informed the jury that its duty was to determine whether Foster was a sexually violent predator.

The instructions expressly stated that the jury had nothing to do with the nature or length of the civil commitment in the event drat Foster was found to be a sexually violent predator. The instructions did not suggest to the jury that Fosters treatment was in the jury’s hands, and the instructions did not instill any fear that Foster would be “unleashed on society” unless committed. As noted by the Missouri Court of Appeals, it would occur to an average juror that a finding that a person was a sexually violent predator would subject the person to further care and treatment.

In fact, Foster’s potential care and treatment was specifically referred to by counsel in opening statements and by evidence presented during the case without objection. The instructions given by the trial court, read together as a whole, fairly stated the law of the case. The jury could not reasonably have been misled by the instructions. Accordingly, we conclude that the trial court did not commit reversible error in instructing the jury.

Lamed report Next, Foster claims the trial court erred by admitting into evidence the Larned evaluation report as an exhibit because it contained inadmissible statements regarding polygraph test results. During trial, Foster objected to the admission of the report on the basis that it was cumulative to Rosenberg’s testimony. Foster did not argue that the report contained references to inadmissible evidence. The trial court admitted the report, noting that Rosenberg’s testimony was lengthy and the report would help the jury refresh its memory regarding the testimony.

A timely and specific objection to the admission of evidence at trial must be made in order to preserve that issue for appeal. K.S.A. 60-404; State v. Flynn, 274 Kan. 473, 496, 55 P.3d 324 (2002). A party may not object at trial to the admission of evidence on one ground and then on appeal argue a different objection. State v. Bryant, 272 Kan. 1204, 1208, 38 P.3d 661 (2002). We note that an appellate court may consider an issue for the first time on appeal in exceptional circumstances in order to serve the interests of justice or to prevent a denial of fundamental rights. State v.

Willis, 254 Kan. 119, Syl. ¶ 3, 864 P.2d 1198 (1993). However, such exceptional circumstances are generally reserved for constitutional issues being raised for the first time on appeal in criminal cases. Furthermore, we note with significance that in State v. Moncla, 262 Kan. 58, 63-66, 936 P.2d 727 (1997), a first-degree murder case, the defendant raised an issue on appeal concerning the admission at trial of evidence of polygraph results, but the court refused to consider the issue because the defendant had failed to make a contemporaneous objection to the evidence at trial.

If the Kansas Supreme Court did not find exceptional circumstances to address this issue in a criminal case without a proper objection at trial, we are unable to find that the contemporaneous objection rule should be disregarded in this case. Foster failed to properly preserve this issue for appeal. Prosecutorial misconduct Finally, Foster claims the State made several improper remarks in its opening statement when it outlined the procedural history of the case.

The State told the juiy that Foster’s case had been reviewed by a committee called a “multidisciplinary team” which reviewed Foster’s social and criminal history, as well as his records, and made its determination as to whether Foster was at risk to reoffend. Counsel then explained the case was passed on to a “prosecutor’s review committee” comprised of several attorneys who made the recommendation that a sexually violent predator case should be filed.

Counsel then told the juiy there had been a probable cause hearing where the judge found sufficient evidence to go forward under the Act and had referred Foster to Larned for an evaluation. The State responds by noting that its opening statement only outlined the evidence the State intended to present at trial. In fact, the juiy heard testimony from Rosenberg about the procedural history of Foster’s case, including specific testimony about the multidisciplinary team, the prosecutor’s review committee, and the court’s determination of probable cause.

Foster acknowledges that all this evidence was admitted at trial without objection. Foster’s only argument on appeal is that the remarks made in the opening statement predisposed the juiy in favor of the State and prevented Foster from receiving a fair trial. At the outset, we note that Foster’s commitment proceedings were civil in nature rather than criminal.

As the State points out in its brief, the attorney for the State in a sexually violent predator case is not a “prosecutor.” Foster has not referred this court to any Kansas case law which applies the rules of prosecutorial misconduct to a civil commitment proceeding under the Act. Nevertheless, we will address the merits of Foster’s claim about the allegedly improper remarks made during the opening statement. Foster did not object at trial to the remarks made during the opening statement.

However, an appellate court’s standard of review of alleged prosecutorial misconduct is the same whether an objection was or was not made at trial. To establish reversible error based on prosecutorial misconduct, a defendant must show that the alleged error denied the defendant his or her right to a fair trial under the Fourteenth Amendment to the United States Constitution. State v. Davis, 275 Kan. 107, 121-22, 61 P.3d 701 (2003). A two-step analysis is applied to allegations of prosecutorial misconduct.

First, the court decides whether the prosecutor’s comments were outside the wide latitude allowed in discussing the evidence. Second, the court must decide whether the comments constitute plain error; that is, whether the statements were so gross and flagrant as to prejudice the jury against the defendant and deny the defendant a fair trial, requiring reversal. 275 Kan. at 121.

Factors to consider under the second step are whether the comments showed ill will by the prosecutor, whether the evidence against the defendant was so overwhelming that the prosecutor’s misconduct had little or no likelihood to have changed the result of the trial, and whether the trial court sanctioned the comment. State v. Scott, 271 Kan. 103, 115, 21 P.3d 516, cert. denied 534 U.S. 1047 (2001). Here, it appears that the State’s opening statement outlined the history of the case so that the jury would understand how Foster’s case reached the court.

During the presentation of evidence, Rosenberg testified regarding the procedural background of the proceedings. The Lamed report admitted into evidence also contained a reference to the probable cause hearing which resulted in Foster’s evaluation. The opening statement merely outlined the evidence which the State ultimately presented to the jury without objection. We conclude that the comments were within the wide latitude allowed in discussing the evidence. Even if the comments crossed the line by bolstering the credibility of the State’s case, we do not find that the comments constituted plain error.

The comments were not so gross and flagrant as to have unduly prejudiced the jury against Foster. Furthermore, there is no indication that counsel acted with ill will in making the comments. We conclude that Foster was not denied a fair trial based upon the alleged improper remarks made during the opening statement. The dissenting opinion finds reversible error based upon the evidence and arguments presented to the jury about the prior review determinations that Foster met the standards for commitment.

In addition to referring to the limited remarks made by the State in its opening statement, the dissent also recites evidence presented at trial and statements made in closing argument about these prior determinations. The dissent concludes: “Whether it is called prosecutorial misconduct or something else,” the cumulative effect of these errors invaded the province of the jury and denied Foster a fair trial. We respectfully believe that the dissent’s findings go well beyond any issues or arguments Foster has raised either in district court or on appeal.

Foster made no objection at trial to the admission of any evidence concerning the screening and review processes or the procedural history of his case. More importantly, Foster has not objected on appeal to the admission of such evidence. Foster’s appeal raises the narrow issue of alleged prosecutorial misconduct committed by the State in its opening statement. Foster makes no complaints on appeal about any evidence presented at trial concerning the multidisciplinary team, the prosecutor’s review committee, and the court’s prior determination of probable cause.

Foster also makes no complaints about any comments made on these matters during closing argument. Ordinarily an appellate court will consider only such questions as are specifically pointed out and discussed by counsel, and the court will not search through a record for the sake of finding error. State v. Puckett, 230 Kan. 596, 599, 640 P.2d 1198 (1982); State v. Stewart, 24 Kan. 250, Syl. ¶ 1 (1880). We recognize that under exceptional circumstances, an appellate court may raise sua sponte issues not raised in district court and may even consider arguments not made by a party on appeal.

See Puckett, 230 Kan. at 599. However, we do not find that Foster’s case presents such exceptional circumstances. Accordingly, we choose to confine our ruling to the issues Foster has properly raised on appeal and affirm the district court. Affirmed.