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NOT DESIGNATED FOR PUBLICATION

No. 123,103

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Matter of the Care and Treatment of

VALDIE T. BARNETT.

MEMORANDUM OPINION

Appeal from Ellsworth District Court; CAREY L. HIPP, judge. Opinion filed July 16, 2021. 

Affirmed.

Kristen B. Patty, of Wichita, for appellant. 

Dwight R. Carswell, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before GREEN, P.J., SCHROEDER, J., and WALKER, S.J.

PER CURIAM: Valdie T. Barnett appeals the Ellsworth County District Court's 

judgment committing him to treatment at Larned State Hospital as a sexually violent 

predator. Barnett contends that the trial court erroneously shifted the burden of proof to 

him and, without the burden-shifting, the evidence was insufficient to support the 

judgment. We disagree and affirm.

FACTS

As this is the third appeal in Barnett's civil commitment proceedings, the history of 

the case is well known to the court. See In re Care & Treatment of Barnett (Barnett I), 

No. 115,298, 2016 WL 5853086 (Kan. App. 2016) (unpublished opinion); In re Care &

Treatment of Barnett (Barnett II), No. 117,277, 2017 WL 5504861 (Kan. App. 2017) 
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(unpublished opinion). An exhaustive review of the procedural history of this case is 

unnecessary.

Since 1996, when he was 13 years old, Barnett has bounced in and out of juvenile 

and adult correctional facilities for serious crimes including aggravated sexual battery, 

aggravated indecent liberties with a child, and aggravated battery. In 2004, The State 

charged Barnett in two separate complaints for committing indecent liberties with two 

separate victims. In Rice County District Court case 04 CR 165, Barnett ultimately 

pleaded guilty to an amended count of attempted indecent liberties with a child. The trial 

court imposed a 68-month prison sentence. In Ellsworth County District Court case 

04 CR 160, Barnett ultimately pleaded guilty to an amended count of indecent solicitation 

of a child, and the trial court imposed a 30-month sentence, which ran consecutively to 

the sentence imposed in Rice County.

Just before Barnett's anticipated release from prison in 2012, Dr. Jane Kohrs, a 

clinical psychologist conducted a psychological evaluation of Barnett to determine 

Barnett's need for further treatment. In her report, Dr. Kohrs diagnosed Barnett with 

antisocial personality disorder. Based on the results of some actuarial tools and review of 

Barnett's history, Dr. Kohrs opined that Barnett's risk of sexual recidivism was 

significant. The State sought civil commitment of Barnett as a sexually violent predator 

under the Kansas Sexually Violent Predator Act, K.S.A. 59-29a01, et seq. Rebecca Farr, 

who held a temporary psychologist license, conducted the forensic evaluation for the 

State under the supervision of Dr. John Reid, a licensed psychologist. Barnett obtained an 

independent psychological evaluation from Dr. Robert Barnett. The trial was held in 

March and June 2013.

The trial court found Barnett to be a sexually violent predator and ordered his 

commitment to Larned State Hospital for treatment. Barnett appealed to this court, 

challenging the qualifications of Dr. Kohrs. This court noted that Dr. Kohrs did not 
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conduct the forensic evaluation required by the Act and that Barnett had not challenged 

Farr's qualifications on appeal. Nevertheless, this court concluded that the trial court has 

specifically discounted Farr's testimony and reasoned that Dr. Kohrs' evaluation did not 

comply with the procedural requirements of K.S.A. 2015 Supp. 59-29a05(d). The court 

therefore reversed the commitment order and remanded the case for further proceedings. 

Barnett I, 2016 WL 5853086, at *3. 

On remand, Barnett sought release from civil commitment as a sexually violent 

predator. Over the State's objection, the trial court released Barnett and dismissed the 

civil commitment proceedings against Barnett. The State appealed, arguing that the 

Kansas Court of Appeals' reversal of the commitment proceedings involved a procedural 

error and that the State could seek civil commitment of Barnett under proper procedures. 

This court reversed the trial court's dismissal, declaring the order null and void. The court 

remanded the case to the trial court to permit the State to have Barnett properly evaluated 

and to proceed with civil commitment proceedings. Barnett II, 2017 WL 5504861, at *7. 

When the State reinstituted civil commitment proceedings, Barnett voluntarily turned 

himself in. He had been released for about 17 months.

The State retained Dr. Michael Flesher to conduct the forensic psychological 

examination of Barnett. Like earlier evaluations, Dr. Flesher's evaluation concluded that 

Barnett suffered from antisocial personality disorder that made him likely to engage in 

repeat acts of sexual violence. Dr. Flesher concluded that Barnett exhibited the criteria 

for commitment as a sexually violent predator under the Act. Barnett retained Dr. Bruce 

Nystrom, who concluded that Barnett had dependent personality disorder and concluded 

that Barnett did not pose a substantial risk of sexual recidivism. At a pretrial hearing, the 

trial court ruled that it would not rely on the transcripts from the previous commitment 

hearings.
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The court held a new trial in late November 2019. Along with expert testimony 

from Dr. Flesher and Dr. Nystrom, the court heard evidence from Barnett and his mother 

about Barnett's progress since committing the 2004 offenses, focusing heavily on 

Barnett's conduct during his 17-month release from confinement.

The trial court requested proposed findings of fact and conclusion of law from 

both parties. On February 7, 2020, the trial court issued its memorandum decision, 

finding Barnett to meet the criteria for civil commitment as a sexually violent predator 

and ordering his commitment to Larned State Hospital for treatment.

Barnett timely appeals the trial court's commitment order.

ANALYSIS

As defined by K.S.A. 2020 Supp. 59-29a02(a), a sexually violent predator is "any 

person who has been convicted of or charged with a sexually violent offense and who 

suffers from a mental abnormality or personality disorder which makes the person likely 

to engage in repeat acts of sexual violence and who has serious difficulty in controlling 

such person's dangerous behavior." Before civilly committing Barnett for treatment as a 

sexually violent predator, therefore, the State was required to prove (1) Barnett had been 

convicted of or charged with a sexually violent offense; (2) Barnett suffers from a mental 

abnormality or personality disorder; (3) Barnett is likely to commit repeat acts of sexual 

violence because of the mental abnormality or personality disorder; and (4) Barnett has 

serious difficulty controlling his dangerous behavior. In re Care & Treatment of 

Williams, 292 Kan. 96, 106, 253 P.3d 327 (2011). The State carried the burden of 

establishing each of these requirements beyond a reasonable doubt. K.S.A. 2020 Supp. 

59-29a07(a) ("The court or jury shall determine whether, beyond a reasonable doubt, the 

person is a sexually violent predator."); In re Care & Treatment of Hay, 263 Kan. 822, 
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842, 953 P.2d 666 (1998) ("[T]he State's burden under the Act is proof beyond a 

reasonable doubt.").

Although Barnett challenges the trial court's conclusion that he is a sexually 

violent predator within the meaning of the Act, he limits his challenge to the fourth 

element—proof that he has difficulty controlling his dangerous behavior. He has 

abandoned any arguments with respect to the other elements by not briefing challenges to 

those elements. See Mid-Continent Specialists, Inc. v. Capital Homes, 279 Kan. 178, 191, 

106 P.3d 483 (2005). In challenging the evidence supporting the fourth element, Barnett 

contends that the trial court's findings on this point shifted the burden to him to prove that 

he could control his disorder. Without this burden-shifting, Barnett contends the record 

contains insufficient evidence to support the trial court's conclusion that he had difficulty 

controlling his personality disorder.

Burden-Shifting

Civil commitment constitutes a restraint on liberty that implicates due process. In 

re Care & Treatment of Quillen, 312 Kan. 841, 850, 481 P.3d 791 (2021) (citing Foucha 

v. Louisiana, 504 U.S. 71, 80, 112 S. Ct. 1780, 118 L. Ed. 2d 437 [1992]; Addington v. 

Texas, 441 U.S. 418, 425, 99 S. Ct. 1804, 60 L. Ed. 2d 323 [1979]). Thus, shifting the 

burden of proof of one of the four requisite elements improperly relieves the State of its 

statutorily imposed burden of proof and undermines the statutory requirements for 

commitment. State v. Colbert, 26 Kan. App. 2d 177, 182, 987 P.2d 1110 (1999) ("An 

evidentiary presumption in a jury instruction deprives a defendant of due process when it 

effectively relieves the State of its burden of proof.").

Whether the trial court has improperly shifted the applicable burden of proof is a 

question of law. In re Estate of Moore, 53 Kan. App. 2d 667, 681, 390 P.3d 551 (2017). 

An appellate court conducts plenary review over questions of law. In re G.M.A., 30 Kan. 
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App. 2d 587, 593, 43 P.3d 881 (2002) (determination of which party bears burden of 

proof is question of law subject to unlimited appellate review). An appellate court also 

conducts unlimited review of the legal effect of the trial court's written decision. See In re 

Estate of Einsel, 304 Kan. 567, 579, 374 P.3d 612 (2016) ("The interpretation of a journal 

entry, like the interpretation of all written instruments, presents a question of law over 

which an appellate court exercises de novo, or unlimited, review.").

In setting out the legal issues for consideration, the trial court properly noted that 

the State had the burden to prove beyond a reasonable doubt four elements. After 

considering evidence presented on each element, the trial court concluded that the 

evidence established beyond a reasonable doubt that Barnett met each criterion for 

classification as a sexually violent predator. In discussing the fourth criterion—whether 

Barnett has serious difficulty controlling his dangerous behavior—the trial court 

acknowledged the evidence that Barnett was out in the community for 17 months without 

a reported sexual offense. The trial court posed the rhetorical question whether this 

evidence presented reasonable doubt about Barnett's ability to control his antisocial 

personality disorder and then answered the question based on the evidence, or absence of 

it, in the record.

Barnett argues that the trial court's comments about the lack of evidence suggest 

that he had some obligation to demonstrate that he could control his dangerous behavior, 

thus shifting the burden of proof to him. Though the trial court noted the absence of 

evidence showing Barnett took meaningful action to control his personality disorder, the 

trial court's comments did not suggest that Barnett had any obligation to produce any 

evidence or to prove he could control his personality disorder. The trial court's comments 

explain why the trial court did not find Barnett's 17-month release significant when 

weighed against the psychological evidence suggesting that Barnett would have difficulty 

controlling his behavior.
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"The Court finds that Mr. Barnett has failed to show any insightful changes in his 

attitudes and orientations. While the Court sympathizes with Mr. Barnett in that he was 

released from custody in November 2017 without any agency support, Mr. Barnett's 

attempts at reformation since his release, as evidenced by his own testimony, have been 

nominal. Mr. Barnett has failed to update his 2010 relapse prevention plan, even after 

acknowledging that his 2010 relapse prevention plan was no longer appropriate. During 

his time in the community, Mr. Barnett failed to obtain any sex offender treatment or

counseling and failed to avail himself of offered counseling by his pastor. Mr. Barnett's 

'wait and see' approach to necessary treatment is of great concern to this court. It shows a 

lack of insightful changes in his attitudes and orientation. With 4 prior convictions of 

sexually violent offenses, it is clear that Mr. Barnett should have taken advantage of sex 

offender treatment options. Instead, Mr. Barnett testified that he was waiting to see what 

happened in the appeal, hoping it would be in his favor. Mr. Barnett did acknowledge his 

high risk areas and situations, but his plan consisted almost entirely of avoiding those 

areas and relying on an adult from his support system to chaperone him. Mr. Barnett has 

no plan should a relapse happen. Given Mr. Barnett's testimony on his future intent to 

leave his parent's home, move to another city and live on his own, it is obvious to the 

Court that Mr. Barnett's foresight is lacking. Mr. Barnett has no adequate long-term plan 

and has not adequately dealt with any issues which lead to the determination he was at 

high risk of reoffending. There is no reason for the Court to believe that Mr. Barnett has 

taken any permanent measures to control his dangerous behavior. Given Mr. Barnett's 

diagnosis of antisocial personality disorder coupled with his extensive history of sexually 

violent offenses as well as multiple disciplinary offenses, including one for possessing 

pornography (which was admitted by Mr. Barnett), all lead the Court to find that he has 

serious difficulty in controlling his dangerous behavior."

In summary, the trial court concluded that the actuarial tools demonstrated that 

Barnett posed a high risk of sexual recidivism. While Barnett lived in the community for 

17 months without apparent incident, the trial court concluded that this evidence alone 

did not undermine the statistical data because the evidence presented at trial demonstrated 

that Barnett did not implement strategies to help him control his antisocial personality 

disorder. He did not seek treatment or counseling. During the 17-month period, he lived 
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with his mother and avoided situations in which he might relapse unless accompanied by 

an adult who would hold him accountable.

The trial court's reliance on Barnett's avoidance of high-risk situations should not 

be interpreted as advocating that Barnett purposefully place himself in high-risk 

situations to prove his ability to control his deviant behavior. Rather, the trial court's 

comment should be interpreted as giving less weight to Barnett's conduct while at liberty 

than might be warranted in other circumstances, such as if Barnett established and 

maintained regular counseling sessions to help him control his antisocial personality 

disorder. The trial court's decision did not shift the burden of proof to Barnett. The trial 

court properly held the State to prove each element beyond a reasonable doubt.

Sufficiency of the Evidence

When a person subject to civil commitment as a sexually violent predator 

challenges the sufficiency of the evidence supporting the commitment, an appellate court 

considers the evidence in a light most favorable to the State to determine if a reasonable 

fact-finder could have concluded beyond a reasonable doubt that the person is a sexually 

violent predator within the meaning of the Act. In re Care & Treatment of Cone, 309 

Kan. 321, 332-33, 435 P.3d 45 (2019).

In challenging the evidence in support of the trial court's judgment, Barnett 

focuses primarily on evidence from his expert witnesses and evidence favorable to him. 

We note, however, Barnett's focus on evidence favorable to him is contrary to the 

limitations imposed on an appellate court to consider the evidence in the light most 

favorable to the prevailing party. Here, the prevailing party is the State.

Both Dr. Flesher and Dr. Kohrs diagnosed Barnett with antisocial personality 

disorder. Antisocial personality disorder manifests itself in a pattern of attitudes and 
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conduct that differs from societal or cultural norms by violating the rights of others in 

aggressive, irresponsible, and manipulative ways. One of the hallmarks of this disorder is 

a lack of remorse or unwillingness to take responsibility for one's actions. In Dr. Flesher's 

opinion, Barnett's antisocial personality disorder frequently manifested itself in sexual 

misconduct. Dr. Flesher stated that antisocial personality disorder does not have a cure 

but that treatment has been effective to change behavior and attitudes. While Dr. Nystrom 

did not diagnose Barnett with antisocial personality disorder, he did conclude that Barnett 

needed others to assume responsibility for major areas of life. Dr. Nystrom also agreed 

that Barnett's history of sex offenses represented "a pervasive pattern in disregard for 

violation of the rights of others."

Again, taking the evidence in a light most favorable to the State, the evidence does 

not support a conclusion that treatment succeeded in causing permanent change in 

Barnett's behavior and attitudes. Throughout the case, Barnett has demonstrated a lack of 

remorse for his actions and an unwillingness to take full responsibility for his actions. 

After interviewing Barnett before he was released from prison, Dr. Kohrs 

expressed concerns that Barnett did not acknowledge the full extent of his misconduct. 

He acknowledged conduct related to his convictions. With respect to his first juvenile 

charge, Barnett only acknowledged touching the victim who reported the offense, even 

though substantial evidence indicated that Barnett touched three girls inappropriately at a

swimming pool. Barnett downplayed his role in the event, characterizing the touching as 

accidental or compartmentalizing his offensive behavior. With respect to the second 

juvenile incident, Barnett again downplayed his involvement, suggesting that the charge 

stemmed from a one-time incident when the victim reported multiple inappropriate 

contacts by Barnett. He downplayed his involvement. 

Dr. Kohrs also indicated that Barnett's conduct after being released on the juvenile 

charges demonstrated an inability to control his antisocial personality disorder. Although 
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he had married and found employment, Barnett committed additional violent offenses, 

including aggravated battery of a child. When he returned to prison, Barnett sold sexual 

favors for money. Then after being released from prison on these crimes, Barnett 

reoffended by sexually touching some teenaged girls under his grandmother's care, even 

though he was on parole and under some supervision. When discussing these new 

offenses in treatment, Barnett again downplayed his involvement, characterizing it as a 

one-time incident when the victims reported multiple instances of inappropriate contact.

These offenses occurred before Barnett completed the sex offender treatment 

program in April 2009. Dr. Kohrs acknowledged that sex offenders can change behavior 

and often benefit from sex offender treatment. But, even after completing the program—

during which he acknowledged that the use of pornography encouraged his deviant 

behavior—Barnett committed a disciplinary offense of possessing an envelope of 

pornographic images. Again, Barnett downplayed his conduct, claiming he was holding 

the images for another inmate. Dr. Kohrs also noted that, while not criminal behavior, 

Barnett would often exploit his employment position in prison to demand canteen items 

from other prisoners in exchange for something they would otherwise have a right to 

receive, such as clean laundry. Barnett also demonstrated his continued inability to take 

responsibility for adverse actions. Though not related to any sexually deviant behavior, 

Barnett reported that he was fired from his employment because his phone was found in 

the chicken house. He did not take ownership of any wrongful conduct but intimated that 

someone other than himself placed his phone, which he had discarded, in the chicken 

house.

Barnett's expert, Dr. Nystrom, opined that the final test of any treatment program 

is whether the offender can apply what he learned in the program while living in the 

community. Dr. Nystrom indicated that he was not provided with any information 

suggesting that Barnett had reoffended during his 17-month release from state custody.

Nevertheless, Dr. Nystrom also admitted that Barnett related that he always had a 
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chaperone when he went out in public. This was confirmed by Barnett's mother and by 

Barnett himself. Barnett's mother characterized Barnett's unwillingness to go anywhere 

alone as protection from accusations rather than protection from his own deviant 

behavior. 

Aside from the constant monitoring Barnett had while released, Dr. Flesher found 

it significant that Barnett was released for 17 months. He indicated that offenders were 

statistically more likely to reoffend in the second 24-month period after release than in 

the first 24 months.

Barnett implicitly acknowledged that he had deviant tendencies regarding 

underage girls by noting that his triggers involved being around underage girls. He stated 

he learned not to go around places where underage girls frequented. Barnett's decision to 

avoid high-risk situations and maintain accountability by having a chaperone when he 

went out in public might be admirable if it were motivated by an attempt to control his 

offending behavior. But Barnett's testimony about the future undermined this motive. He 

testified that he intended to obtain a new residence away from his mother's house, where 

he could reside with his girlfriend. The evidence revealed that his girlfriend was an overthe-road trucker for a company based in Chicago. His girlfriend visited Barnett an 

average of once per month.

If Barnett's relapse prevention plan depended on him having another adult 

accompany him when he ventured out to public places, this former plan will be 

undermined by his new plan because he will essentially be living alone. For instance, if 

having an adult chaperone when leaving his home is no longer part of his prevention 

plan, Barnett's 17-month release—when he was consistently accompanied by another 

adult in public—affords no sound basis for predicting that he will be able to control his 

deviant behavior in the future. Indeed, based on his girlfriend's once a month visits, there 

certainly will be times when Barnett will leave home unaccompanied by another adult. 
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Thus, Barnett's new living plan will leave opportunities for injurious behavior in the 

future.

Past violent behavior is a strong indicator in predicting future violent behavior. 

See Kansas v. Hendricks, 521 U.S. 346, 357-58, 117 S. Ct. 2072, 138 L. Ed. 2d 501 

(1997) (citing Heller v. Doe, 509 U.S. 312, 323, 113 S. Ct. 2637, 125 L. Ed. 2d 257 

[1993]; Schall v. Martin, 467 U.S. 253, 278, 104 S. Ct. 2403, 81 L. Ed. 2d 207 [1984]). 

Under equivalent circumstances, Barnett's more recent good behavior might be a stronger 

predictor of his future behavior than his past bad behavior. But the conditions in which he 

acted during his 17-month release are not the probable conditions in which he will act. 

The conditions under which he maintained good behavior really do not inform the court 

about his ability to control his antisocial personality disorder unassisted. He can control 

his dangerous behavior when he is incarcerated and supervised. He can control his 

dangerous behavior when he is not incarcerated but chaperoned. Nothing in Barnett's 

recent history counters the impression created by his criminal history that Barnett has 

serious difficulty controlling his deviant tendencies when unsupervised.

Considering the evidence in a light most favorable to the State, we conclude that 

the evidence establishes beyond a reasonable doubt that Barnett had serious difficulty 

controlling his deviant behavior. Thus, we affirm.

Affirmed.