                 IN THE SUPREME COURT OF THE STATE OF KANSAS

                                              No. 118,914

                            In the Matter of the Care and Treatment of
                                        ROBERT J. SIGLER.


                                   SYLLABUS BY THE COURT

1.
        Simply pressing a point without pertinent authority, or without showing why it is
sound despite a lack of supporting authority or in the face of contrary authority, is akin to
failing to brief an issue. When a party fails to brief an issue, that issue is deemed waived
or abandoned.


2.
        Determining whether res judicata prevents relitigation of a claim requires
consideration of the: (1) identity in the thing sued for, (2) identity of the cause of action,
(3) identity of the persons and parties to the action, and (4) identity in the quality of the
person or persons for or against whom the claim is made.


        Review of the judgment of the Court of Appeals in an unpublished opinion filed November 2,
2018. Appeal from Barton District Court; MIKE KEELEY, judge. Opinion filed September 6, 2019.
Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is
affirmed.


        Kristen B. Patty, of Wichita, argued the cause and was on the brief for appellant.


        Dwight R. Carswell, assistant solicitor general, argued the cause, and Derek Schmidt, attorney
general, was with him on the brief for appellee.



                                                     1
The opinion of the court was delivered by


       LUCKERT, J.: This appeal results from the State's second attempt to have Robert J.
Sigler found to be a sexually violent predator (SVP) and civilly committed under the
Kansas Sexually Violent Predator Act (SVPA), K.S.A. 2018 Supp. 59-29a01 et seq.
Sigler raises issues about res judicata and collateral estoppel and alleges prejudicial
conduct calling for a mistrial. On the first issue, we hold this action is not barred by the
res judicata doctrine because a material change of circumstances occurred that
differentiates the second action from the first. We also reject Sigler's second argument
because, although an error occurred when a witness inaccurately stated that Sigler had
been "actually civilly committed once, and then his commitment was overturned by an
appeals court," the State and the district court took sufficient curative steps to counter the
potential prejudice. The district court, therefore, did not err by not declaring a mistrial.


       We thus affirm the district court and the Court of Appeals. See In re Sigler, No.
118,914, 2018 WL 5728261, at *1 (Kan. App. 2018) (unpublished opinion).


                          FACTS AND PROCEDURAL BACKGROUND

       In 2007, a district court sentenced Sigler to 84 months' imprisonment following his
convictions for criminal sodomy with a child 14 or more years of age but less than 16
years of age, indecent solicitation of a child, and furnishing alcohol to a minor for illicit
purposes. In 2013, before Sigler's release from prison, the State petitioned for a civil
commitment order under the SVPA.


       The 2015 SVPA trial

       The SVPA action went to trial, after which the district court issued a journal entry
of judgment summarizing its conclusions about the four SVP elements. See K.S.A. 2018
                                               2
Supp. 59-29a02(a) (defining "Sexually violent predator" to mean [1] any person
convicted of or charged with a sexually violent offense; [2] the person suffers from a
mental abnormality or personality disorder; [3] the mental abnormality or personality
disorder "makes the person likely to engage in repeat acts of sexual violence"; and [4] the
person has serious difficulty controlling his or her dangerous behavior); In re Care &
Treatment of Williams, 292 Kan. 96, 106, 253 P.3d 327 (2011) ("[These] statutory
requirements . . . impose four elements that must be proven to establish that an individual
is a sexually violent predator.").


       The court noted the parties had not disputed the first element of proof because
Sigler had a prior conviction for a sexually violent offense. See K.S.A. 2018 Supp. 59-
29a02(e)(4) (defining "Sexually violent offense" to include criminal sodomy). The
district court thus focused its analysis on the remaining three elements.


       As to the second element—whether Sigler suffered from mental abnormalities
supporting his involuntary commitment under the SVPA—both the State and Sigler
presented expert testimony. One State expert diagnosed Sigler under the DSM-5 with
pedophilia, sexually attracted to males, nonexclusive type; borderline personality
disorder, with antisocial features; voyeurism; alcohol dependence, without physiological
dependence in a controlled environment; and amphetamine dependence, without
physiological dependence in a controlled environment. Another State expert diagnosed
Sigler with other specified paraphilic disorder, hebephilia, frotteurism, and voyeurism;
other specified personality disorder, histrionic and borderline; methamphetamine use
disorder, remission in a controlled environment; alcohol use disorder, remission in a
controlled environment; and depressive disorder by history.


       Sigler's expert disagreed with these diagnoses, finding "nothing in his current
functioning or in his history that would justify" the pedophilia or hebephilia diagnoses.
                                             3
The district court ultimately concluded the State proved Sigler suffers from a mental
abnormality or personality disorder beyond a reasonable doubt.


       The district court then considered whether the State carried its burden of proving
beyond a reasonable doubt that Sigler was likely to commit repeat acts of sexual violence
because of a mental abnormality or personality disorder—the third element of the SVP
definition. Both State experts evaluated Sigler's likelihood of recidivism using the Static-
99R, an actuarial risk assessment tool. Both rated Sigler at a risk level of 4, which placed
him in the moderate category for reoffending under the Static-99R's scoring criteria.
Sigler's expert opined the Static-99R does not reliably assess the risk of reoffending, but
if he rated Sigler, he would rate him below a 4. He also opined a score of 4 on the Static-
99R is low. The district court found the State failed to meet its burden on this element. In
reaching this conclusion, the district court highlighted the Static-99R test results and the
State's own expert's recommendation for GPS monitoring and strict supervision even
though the same expert had recommended civil commitment in other cases.


       The district court finally turned to the fourth element of whether the State proved
Sigler has serious difficulty controlling his dangerous behavior. The district court
reviewed both sides' experts' testimony and Sigler's testimony about his treatment and
efforts to address his past sexually violent behavior. Based on this review, the district
court determined the State also failed to prove this element beyond a reasonable doubt
and denied the State's petition to commit Sigler.


       The district court ordered Sigler released to parole on July 13, 2015. About four
months later, Sigler was arrested for parole violations and was returned to prison for a
90-day sanction.




                                              4
       The 2016 petition

       Just before Sigler's release from custody, the State filed a second petition to
commit Sigler. In the State's February 29, 2016, petition it alleged Sigler's parole
violations constituted a material change in his condition and ability to control his
behavior, which supported civil commitment even though the court had previously
rejected its commitment petition after the 2015 trial.


       Sigler asked the district court to conclude a second proceeding was barred by
principles of res judicata or collateral estoppel. The district court analyzed any preclusive
bar under In re Care & Treatment of Sporn, 289 Kan. 681, 215 P.3d 615 (2009), and In
re Care & Treatment of Johnson, 32 Kan. App. 2d 525, 85 P.3d 1252 (2004). The district
court noted the only new information the State provided was about Sigler's performance
on parole and the reported parole violations. But the court determined this evidence was
sufficient to find a material change in Sigler's condition since its 2015 determination
denying the State's first commitment petition. The district court specifically cited Sigler's
use of Facebook and viewing pornography within one month of being released on parole
as violations of his parole conditions. The district court also noted violations arising from
Sigler's possessing an Instagram account that he used to view explicit material, viewing
of child pornography, and having a consensual sexual relationship with an adult male
without first obtaining a required third-party notification. Based on these facts, the district
court determined res judicata did not bar a second commitment proceeding.


       The district court held a jury trial in February 2017. The State called several
witnesses who had contact with Sigler during his parole and two experts. Sigler testified
on his own behalf and called his own expert.




                                              5
       Logan Hall supervised Sigler's parole. In August 2015, Hall confronted Sigler
about Sigler's Facebook profile. Hall believed this to be a parole violation. Sigler's parole
conditions barred the use of chat rooms, bulletin boards, or social networking sites,
including Facebook, "for the purpose of accessing sexually explicit or erotic material or
contacting any person for purposes of sexual gratification." While Sigler had a Facebook
page, no evidence in the record establishes he used it in a manner restricted by his parole
conditions.


       Sigler, however, did violate another parole condition in September 2015 by
driving a coworker, who was a minor, home after work. The next day, Sigler learned the
coworker was in high school. Being alone with a minor violated Sigler's parole
conditions. Sigler disclosed the violation to Hall who described this as "a fairly minor
violation."


       In November 2015, Hall learned Sigler opened an Instagram account. Hall and
Brandi Laudermilk, who oversaw Sigler's sex offender treatment program while he was
on parole, viewed pages, profiles, or accounts Sigler had liked, friended, or followed.
This review revealed images of males partially or completely nude. Sigler later admitted
to viewing pornographic websites, some of which may have depicted male minors
between the ages of 14 and 17. Sigler also admitted he masturbated while looking at the
material. Hall had recommended Sigler's probation be revoked.


       Laudermilk addressed the reasons Sigler was discharged from his sex offender
treatment program while on parole. She characterized Sigler as having trouble
maintaining a low risk of reoffending while under treatment. His Instagram account,
which led to the seizure of his computer, prompted the discharge from the program. But
Sigler also did not disclose information relevant to his treatment, such as sexually
arousing dreams involving children. She testified she had discussed the risk of viewing
                                              6
pornography with Sigler. She described the sex-offending cycle and methods she
discussed with Sigler to stop such behaviors at thoughts before they became fantasies and
later progressed into actions. Laudermilk was concerned the behavior she observed
revealed Sigler was at a heightened risk of reoffending. She noted that Sigler had
deactivated his Facebook account when questioned about it but reactivated it later that
same night.


       Laudermilk testified she used the Acute 2007 and Stable 2007 assessments as
scoring guides to determine Sigler's risk of recidivism while under supervision. The
Acute 2007 test was done weekly to assess Sigler's current risk. From the time Sigler
started treatment, the test showed his risk was moderate or high each time it was
administered. These results were higher than Sigler's results on the Acute 2007
administered during Sigler's first incarceration.


       Forensic psychologist Derek Grimmell, Ph.D., testified as a State expert.
Grimmell evaluated Sigler's file and wrote a report detailing his conclusions that the
district court admitted into evidence. Grimmell explained the factors he considered in
assessing Sigler's likelihood to reoffend, including: the number of times Sigler
victimized others; the choice of male victims; Sigler's paraphilic disorder—his attraction
to pubescent boys over a long time; and Sigler's other specified personality disorder with
histrionic and borderline features.


       Grimmell testified inaccurately that


       "this case is more dramatic than most because [Sigler] was actually civilly committed
       once, and then his commitment was overturned by an appeals court. And a lot of guys
       would have said, wow, that was a real shot across my bow. I better be careful on parole.
       But not Mr. Sigler."


                                                   7
Sigler later testified he had never appealed an adverse civil commitment judgment.


         Grimmell also testified to another parole violation Hall had not covered in his
testimony: Sigler engaged in a consensual sexual relationship with an active drug user in
a manner that violated parole because he did not obtain a required third-party notification
before doing so. Grimmell identified this behavior as "a substantial increase in [Sigler's]
risk."


         Grimmell assessed Sigler's likelihood to reoffend under the Static-99R. Grimmell
scored Sigler a plus 4, which he described as an above average risk category. Grimmell
opined Sigler was a high risk to reoffend based on his review of Sigler's risk factors, the
data in Sigler's file, and impediments to Sigler controlling his behavior. Grimmell cited
Sigler's violations over the four-and-a-half month parole period as additional information
he relied on in reaching his conclusion Sigler was likely to reoffend.


         Mitchell Flesher, Ph.D., a licensed psychologist, also assessed Sigler under the
Static-99R. He scored Sigler a 4. According to Flesher, this score placed Sigler in the
high risk priority. (Different experts treated the score of 4 differently, assessing the score
as suggesting a risk of reoffending anywhere from low to high.)


         Sigler, besides his own testimony, offered expert testimony from clinical
psychologist Bruce Nystrom, Ph.D., who opined Sigler did not meet the definition of a
sexually violent predator. Nystrom did not report a Static-99R score but noted Sigler fell
in the moderate-to-high risk for reoffending. Nystrom disagreed that Sigler showed any
symptoms of a typical mental illness. He did, however, diagnose Sigler with histrionic
personality disorder. Nystrom did not see this diagnosis as predicting any type of
offensive behavior or indicating Sigler was a danger to the public.


                                               8
       The court's instructions to the jury acknowledged the existence of a prior civil
commitment proceeding against Sigler:


       "In 2013 a petition seeking to involuntarily commit Robert J. Sigler as a sexually-violent
       predator was filed and was ultimately denied. Do not speculate or otherwise concern
       yourselves with any potential reasons for any decisions in a prior petition. The present
       case should be decided upon the facts and circumstances admitted in the present case.
       You should consider and weigh all admitted evidence in the present petition as a whole
       and render a decision that is independent of any prior petition."


       The jury determined Sigler was a sexually violent predator after less than an hour
of deliberations.


       Sigler appealed. Sigler claimed that, because the experts scored his level of risk on
the Static-99R similarly in both the proceedings, the State failed to show a change—let
alone a material change—in his mental status or level of risk. Sigler thus argued res
judicata or collateral estoppel barred the current proceeding. The Court of Appeals panel
rejected the State's contention that Sigler's viewing of apparent child pornography
constituted a material change under Sporn, but it found these factors sufficient to
establish a material change:


    The dissonance between the steps Sigler took while in prison to help control his
       actions and the lack of effort he made while on parole, including "evidence that
       Sigler began having fantasies about naked children but refused to discuss these
       fantasies with his counselor." In re Sigler, 2018 WL 5728261, at *3.


    Testimony from Sigler's counselor that, based on weekly Acute 2007 testing,
       "Sigler's risk changed from moderate to high in the time he was attending
       counseling." 2018 WL 5728261, at *3.

                                                    9
    "The Static-99R score does not change over time because it is based on static
       conditions such as lifelong personality disorders and lifelong deviant sexual
       interests. Thus, a consistent score of a four on the Static-99R test does not mean
       that there was no change in Sigler's mental condition, but rather that his
       personality risk remained high despite treatment." 2018 WL 5728261, at *4.

    Sigler's "unwillingness to seek help in the community." 2018 WL 5728261, at *4.


       In a second issue on appeal, Sigler claimed that Grimmell's inaccurate statements
about the first KVPA proceeding were so prejudicial as to warrant a mistrial. The panel
rejected Sigler's argument. It reasoned that several circumstances combined to cure
Grimmell's erroneous testimony, including the court's instruction that informed the jury
that the State's prior petition was denied. 2018 WL 5728261, at *4.


       Sigler timely petitioned for review, which this court granted. This court's
jurisdiction is proper under K.S.A. 20-3018(b) (petition for review of Court of Appeals
decision).


                                         ANALYSIS

       Sigler's petition for review presents two issues. First, he argues the Court of
Appeals erred in concluding the State carried its burden of establishing that Sigler's
mental status and risk assessment materially changed between the first and second SVPA
proceedings. Second, he argues the Court of Appeals erred when it concluded the district
court did not violate Sigler's right to due process when it failed to sua sponte declare a
mistrial after Grimmell incorrectly advised the jury that Sigler's previous civil
commitment had been overturned on appeal.


                                             10
1. The State has established a material change in circumstances.


       In presenting his first issue, Sigler makes a preliminary argument that this court
has ruled that K.S.A. 59-29a03 allows only one SVP commitment proceeding against an
individual. He alternatively argues that, if the statute allows two proceedings, res judicata
or collateral estoppel bar the second proceeding against him. We reject both arguments.


       1.1. Sigler fails to preserve his first argument.


       Sigler argues in his petition that K.S.A. 59-29a03(a)(1) generally authorizes only
one SVP commitment proceeding. K.S.A. 2018 Supp. 59-29a03 provides:


                         "(a) When it appears that a person may meet the criteria of a
              sexually violent predator as defined in K.S.A. 59-29a02 and amendments
              thereto, the agency with jurisdiction shall give written notice of such to
              the attorney general and the multidisciplinary team established in
              subsection (d), 90 days prior to:


                         (1) The anticipated release from total confinement of a person
              who has been convicted of a sexually violent offense, except that in the
              case of persons who are returned to prison for no more than 90 days as a
              result of revocation of postrelease supervision, written notice shall be
              given as soon as practicable following the person's readmission to
              prison."


       Here, the State gave notice of this proceeding after Sigler was returned to prison
for violating his parole. But it was a second proceeding, and Sigler objects to the State
having multiple opportunities to seek his civil commitment. But he does not develop any
arguments based on the statutory language. Instead, his arguments focus on the test
against which this court measured whether the State met its burden in Sporn. There, we
                                                    11
held the State had failed to prove a material change in circumstances and a second SVPA
action was therefore barred by the res judicata doctrine. 289 Kan. at 688-89. But at oral
argument, Sigler's counsel reiterated the argument that K.S.A. 59-29a03 allows only one
SVPA proceeding.


       Upon questioning, Sigler's counsel conceded she had not made a statutory
interpretation argument. As a result, Sigler has waived any such argument. See State v.
Gonzalez, 307 Kan. 575, 592, 412 P.3d 968 (2018) ("Simply pressing a point without
pertinent authority, or without showing why it is sound despite a lack of supporting
authority or in the face of contrary authority, is akin to failing to brief an issue. When a
party fails to brief an issue, that issue is deemed waived or abandoned."). Instead, Sigler's
counsel argued this court foreclosed the second action through our decision in Sporn. But
counsel misreads Sporn.


       Granted, Sporn acknowledged an ambiguity in K.S.A. 59-29a03(a)(1) about
whether the statute allows the State to file a second proceeding after revocation of a
person's postrelease supervision. And we noted "the language of the SVPA could be
interpreted to authorize one commitment proceeding during the pendency of the
'complete sentence' for a sexually violent offense." 289 Kan. at 687. But we did not
resolve the ambiguity. Instead, we stated:


       "[E]ven if we accept the State's contention that a second petition for commitment under
       the SVPA is permitted where there has been a material change in the respondent's mental
       status and recidivism risk, the State failed to carry its burden of making an initial showing
       of such a material change." 289 Kan. at 689.


This final sentence conveys that we ultimately resolved Sporn on the basis that the State
established no material change in condition—the sole basis the State had presented as a

                                                    12
justification for a second action. In other words, we did not resolve the ambiguity and did
not hold that K.S.A. 59-29a03(a)(1) allows only one proceeding. That question is left for
another day.


       Second, we did not adopt a material change of circumstances as a test. Rather, we
held the State had not met the material change threshold it set for itself. The parties here
similarly use the material change of circumstances as a test. Other than arguing we
foreclosed a second action in Sporn, Sigler has not argued the material-change test is
inappropriate or that a different test should apply. He has thus waived that argument. See
Gonzalez, 307 Kan. at 592. We, thus, apply the test as the one argued without deciding its
appropriateness.


       This brings us to the issue Sigler did argue: Whether the State established a
material change in condition as necessary to overcome a potential res judicata or
collateral estoppel bar. This issue statement notably contains two theories of preclusion
against the second SVPA proceeding—res judicata and collateral estoppel.


       We have recognized collateral estoppel and res judicata as distinct, albeit closely
related, doctrines barring relitigation of prior adjudications. See Waterview Resolution
Corp. v. Allen, 274 Kan. 1016, 1023, 58 P.3d 1284 (2002) ("While the concept of res
judicata is broad enough to encompass both claim preclusion and issue preclusion, the
modern trend is to refer to claim preclusion as res judicata and issue preclusion as
collateral estoppel."). "Claim preclusion is a common-law doctrine, designed to prevent
relitigation of a final judgment." In re Tax Appeal of Fleet, 293 Kan. 768, 777, 272 P.3d
583 (2012). In contrast, "[i]ssue preclusion prevents a second litigation of the same issue
between the same parties, even when raised in a different claim or cause of action." 293
Kan. at 778. However, the requirements that must be met "before a party will be estopped
from collaterally attacking a prior adjudication" (issue preclusion) are different from the
                                             13
conditions required for res judicata (claim preclusion). Waterview, 274 Kan. at 1023
(citing Regency Park v. City of Topeka, 267 Kan. 465, 478, 981 P.2d 256 [1999]
[discussing requirements for res judicata and collateral estoppel]).


       1.2 Sigler has not preserved a collateral estoppel issue.


       In the district court, Sigler referred to collateral estoppel. He makes a passing
reference to his district court argument in his appellate brief, although he focused on the
framework established in Sporn. But in Sporn, we applied the res judicata doctrine; we
did not discuss collateral estoppel. 289 Kan. at 685-89. Granted, other courts have framed
the issue as one of issue preclusion or collateral estoppel. See In re Johnson, 32 Kan.
App. 2d at 530-31; Commonwealth v. Chapman, 444 Mass. 15, 20-24, 825 N.E.2d 508
(2005); Parr v. State, 482 S.W.3d 508, 511-14 (Mo. App. 2016); cf. In re Fleet, 293 Kan.
at 777-78 (discussing areas of overlap between claim and issue preclusion in context of
KJRA proceeding).


       Recognizing these authorities and our own decisions, perhaps a party could argue
that an issue-preclusion doctrine other than res judicata applies when the State brings
successive SVPA proceedings. But Sigler made no effort before this court or the Court of
Appeals to explain how the doctrines differ or why the results might differ depending on
which preclusion doctrine a court analyzes. Instead, he relied on Sporn. He has thus
waived any argument based on a theory of collateral estoppel. See Gonzalez, 307 Kan. at
592. We therefore limit our discussion to whether a material change authorized a second
proceeding to commit Sigler under the res judicata framework laid out in Sporn without
addressing whether the result could differ under a collateral estoppel analysis.




                                             14
       1.3. The State presented evidence of a material change.


       Sigler has presented and preserved an argument based on Sporn by contending the
State did not present evidence of a material change in his mental state or risk assessment
between the two proceedings. This question, which underlies whether res judicata bars a
second SVPA proceeding, presents an issue law. An appellate court exercises unlimited
review over a district court's decision on a question of issue preclusion and makes a de
novo determination. See In re Tax Appeal of Fleet, 293 Kan. at 777; see also Bogguess v.
State, 306 Kan. 574, 579-80, 395 P.3d 447 (2017); Sporn, 289 Kan. at 686.


       Here, we base our de novo determination on the res judicata factors discussed in
Sporn: "res judicata prevents relitigation where the following requirements are met: (1)
identity in the thing sued for, (2) identity of the cause of action, (3) identity of persons
and parties to the action, and (4) identity in the quality of persons for or against whom
claim is made." 289 Kan. at 686. "An issue is res judicata when [these] four conditions
concur." Regency Park, 267 Kan. at 478. That is, a change in any one of these conditions
may render res judicata inapplicable. See 267 Kan. at 478 ("[T]here cannot be res
judicata because of lack of identity in the parties to the action.").


       In Sporn, as here, the State focused on the second requirement and argued its first
cause of action against Randy Sporn to determine his then-current condition was not
identical to the second action which would assess his condition at the time of the later
action. Specifically, it argued: "'The sole issue is whether the individual's mental status
and, consequent risk, have changed since the last petition for any reason. If they have not,
no new issue is presented and res judicata is properly invoked to bar the proceeding.'"
289 Kan. at 687.




                                              15
       Here, the State has effectively made the same argument. The State did not plead or
argue that Sigler has committed or been charged with another sexually violent offense.
Nor has it argued the existence of a different mental abnormality or personality disorder
that makes it likely Sigler will engage in repeated acts of sexual violence. Instead, it
focused on the final factor in the SVP definition to argue a material change has occurred
that evidences Sigler now has serious difficulty in controlling his dangerous behavior
even though the evidence at the first trial showed he was then in control of his impulses.
This argument parallels the State's "consequent risk" argument in Sporn.


       The Sporn court noted that Turner v. Superior Court, 105 Cal. App. 4th 1046, 130
Cal. Rptr. 2d 300 (2003), might have supported the State's position that such a material
change would overcome the potential bar of the res judicata doctrine. Sporn, 289 Kan. at
688. In Turner, the California court allowed a successive proceeding, reasoning "a mental
disorder is not a fixed condition because an individual's mental health and potential
dangerousness can, and frequently does, change." Turner, 105 Cal. App. 4th at 1058. The
Turner court held the first jury's determination that James William Turner was not an
SVP was relevant and admissible but not determinative. 105 Cal. App. 4th at 1059-60.


       The Turner court held the State failed to meet its burden of establishing a serious
and well-founded risk that Turner will engage in sexually violent criminal conduct upon
release. The State's evidence relied exclusively on two psychologists. One did not address
the prior jury's verdict; the other noted the verdict but failed to discuss the verdict's
consequences. Turner clarified that, since there had been a prior jury determination, the
experts must accept that result as true. They must "then explain why despite that prior
finding, the facts are sufficiently different so that the individual is now a dangerous
person who is likely to reoffend within the meaning of the SVPA." 105 Cal. App. 4th at
1062. The Turner court also noted neither psychologist relied on developments after the


                                               16
first proceeding to support their conclusions Turner was likely to reoffend. 105 Cal. App.
4th at 1062-63.


       In Sporn, applying the reasoning in Turner, we concluded the State failed to carry
its burden to establish a material change in Sporn's mental status and risk assessment. We
noted no discussion of a material change in the second petition to commit Sporn. 289
Kan. at 689. We continued our analysis by considering the facts alleged to support
finding a material change:


               "Further, we are unpersuaded by the State's argument that the basis for revoking
       postrelease supervision—viewing pornography and sexually explicit websites on the
       computer—define a material change in Sporn's mental status. To the contrary, those facts
       appear to be offered simply to shore up or corroborate the previous diagnosis and risk
       assessment, with the hope that a second jury would reach a different result on the same
       underlying evidence. That is precisely what the principle of res judicata is designed to
       prevent." 289 Kan. at 689.


       No Kansas cases appear to have elaborated on what constitutes a material change
in mental status or risk assessment. The panel here considered Sporn and Turner and
cited three cases from other jurisdictions in analyzing what constitutes a material change.
The facts and analysis of the cases from our sister states help frame the considerations.


       In one of the cited cases, Chapman, 444 Mass. 15, the Massachusetts Supreme
Court vacated a trial judge's order finding collateral estoppel barred a second proceeding
and dismissing a petition to commit Wayne Chapman as a sexually dangerous person.
The court determined the petition was not barred by collateral estoppel and the petition
presented a sufficient factual basis to support the allegations Chapman was presently
sexually dangerous. 444 Mass. at 15-16.


                                                   17
       Chapman had been convicted of various offenses and transferred from prison to a
treatment center based on a finding that he was a sexually dangerous person. A judge
later found the Commonwealth failed to prove beyond a reasonable doubt that Chapman
remained a sexually dangerous person and ordered his return to prison. Before Chapman's
scheduled release from prison more than a decade later, the Commonwealth filed a new
sexually dangerous person petition.


       The court compared the factual allegations underlying the initial determination and
those raised in the second proceeding to determine whether collateral estoppel applied.
444 Mass. at 20-22. The court found sufficient allegations to overcome collateral estoppel
when the Commonwealth offered evidence that the treatment Chapman received before
the first proceeding had proved ineffective for sex offenders and evidence that Chapman's
failure to participate in sex offender treatment programs since the first proceeding
impacted his "present ability to control a mental abnormality (pedophilia) that otherwise
creates a substantial risk of additional sex offenses." 444 Mass. at 23-24.


       The panel also cited Parr v. State, 482 S.W.3d 508 (Mo. App 2016). There,
Missouri sought to commit Gregory Parr before his scheduled release on sexual offenses
involving a 14 year old. Parr presented evidence that he did not meet the requirements of
a sexually violent predator. The trial court agreed, granting Parr a directed verdict at the
close of the State's evidence. Later, Parr's parole was revoked after he sent a letter to an
incarcerated sex offender.


       On appeal, Parr styled his argument as sufficiency of the evidence, not collateral
estoppel. The Missouri Court of Appeals reframed the issue as one of collateral estoppel,
which does not preclude later litigation of the same issue "if the facts have materially
changed between the first and second adjudications." 482 S.W.3d at 512. The court noted
other states had applied similar reasoning to conclude later proceedings were not barred
                                              18
in the SVP context, citing Turner, Sporn, Chapman, and In re Thomas R., 224 Ariz. 579,
233 P.3d 1158 (Ct. App. 2010). The Missouri court, relying on this precedent and its
state's collateral estoppel rules, concluded the State could proceed if it proved materially
changed circumstances or a new legal situation since the prior adjudication. And the State
could partially rely on facts predating the prior adjudication as long as those facts were
not the sole basis for arguing the individual is a sexually violent predator. 482 S.W.3d at
514-15.


       The Missouri court then considered whether the evidence supported the trial
court's decision to commit Parr as a sexually violent predator. The principal new
evidence was Parr's letter to the incarcerated sex offender. The letter detailed Parr's
continued attraction to people appearing to be below the age of majority. Parr also sent
images of young people, including an 18-year-old pornographic film star and one of
Parr's former victims. A therapist ended Parr's participation in sex offender treatment
after his letter was discovered because Parr had "made no progress in treatment and [was]
not amenable to treatment in the community at this time." 482 S.W.3d at 516. Parr also
admitted to parole violations, "including associating with felons; using the internet for
purposes other than looking for work; viewing or collecting pictures of young boys for
sexual arousal; visiting the Facebook and MySpace social media websites; and searching
the internet for pornography and viewing pornography." 482 S.W.3d at 516. The State
and Parr each presented expert testimony supporting their positions on whether Parr was
a sexually violent predator.


       The Missouri court affirmed the trial court's judgment finding Parr to be a sexually
violent predator. In doing so, the court held the State presented sufficient evidence of a
material change in circumstance since the first judgment in Parr's favor. The court
summarized the evidence supporting this conclusion, which included the State's experts'
testimony; Parr's letter; and Parr's behavior after the first judgment suggesting Parr had
                                             19
not benefitted from sex offender treatment and continued to pursue a course of conduct
that had led to his commission of sexually violent offenses in the past.


       Finally, in In re Thomas R., 224 Ariz. 579, the Arizona court relied on Turner's
changed-circumstances reasoning in evaluating whether a second commitment
proceeding was barred by res judicata or collateral estoppel. The Arizona opinion, much
like that in Parr, highlighted the new evidence supporting its conclusion of a material
change since the earlier proceeding. In particular, the court discussed a State expert's
recent examination of Thomas R. and the conclusion the expert drew based on that
examination as well as Thomas R.'s many probation violations after the first attempted
commitment proceeding. 224 Ariz. at 586-87.


       Turner, Chapman, Parr, and In re Thomas R. support the State's argument it is not
precluded from bringing a second action if circumstances show a material change in the
risk factor of an individual's ability to control his or her behavior. Common
circumstances in the cases include a failure to succeed in a treatment program, probation
or parole violations, not being amenable to treatment in the community, and escalating
risky behavior that shows an inability to control actions.


       Citing similar evidence at Sigler's trial, the Court of Appeals panel found a
material change permitted the State's second commitment petition. The panel interpreted
Sporn to preclude such a conclusion based solely on viewing pornography or sexually
explicit material. But the panel distinguished Sigler's situation from that in Sporn because
the State did not rely solely on Sigler viewing these materials. Instead, the panel
compared the evidence about Sigler's ability to control his actions in prison with his
inability to do so since his release to the community. The panel also highlighted Sigler's
failure to disclose fantasies to his counselor and the weekly administered Acute 2007
testing showing Sigler's risk of reoffending had increased from moderate to high even
                                             20
while attending counseling. These changed circumstances led the panel to conclude:
"The proceedings in the State's current action were sufficiently different from those in the
prior action for neither res judicata nor collateral estoppel to apply. The district court did
not err in denying Sigler's motion to dismiss." In re Sigler, 2018 WL 5728261, at *4.


       Before us, Sigler challenges the characterization of some of his alleged parole
violations, pointing out the parole conditions did not preclude Sigler having a Facebook
account as long as he did not use it in a prohibited manner and Hall's characterization of
Sigler's self-disclosed driving of a minor as "a fairly minor violation." Sigler further
points to the fact that he has not committed or been charged with a new offense—
sexually explicit or otherwise. Sigler makes valid points with these arguments. He then
tries to fit this case into the confines of Sporn. He, in essence, argues all that is left is his
viewing of explicit material. He then relies on the following statement from Sporn to
argue the State has failed to carry its burden:


       "[V]iewing pornography and sexually explicit websites on the computer [does not] define
       a material change in Sporn's mental status. To the contrary, those facts appear to be
       offered simply to shore up or corroborate the previous diagnosis and risk assessment,
       with the hope that a second jury would reach a different result on the same underlying
       evidence." 289 Kan. at 689.


       The State conditionally cross-petitioned to ask us to abrogate this language.
Alternatively, it points to other evidence showing a material change in his risk of
reoffending. We need not go as far as the State asks because we agree with the State's
alternative argument that it has established more than Sigler's attraction to pornography.
It established two parole violations—(1) having an Instagram account and using it to
view pornography and (2) having a consensual sexual relationship with an adult male
without first obtaining a required third-party notification. Granted, one of the violated
parole conditions aimed to prevent Sigler viewing pornography. But the violation proves
                                                   21
more than a tendency to view pornography. His failure to comply with parole conditions,
knowing he risked incarceration, reveals an inability to control his actions.


       Sigler also emphasizes the lack of change in his mental status based on the relative
consistency among the various diagnoses provided at the two proceedings. Even if we
accept Sigler's argument that his diagnoses remain unchanged, he misses the point. Sporn
did not limit consideration of a material change to the mental status—the material change
can be in the mental status or the risk assessment. And Sporn acknowledged both are
variable; neither is fixed. So we must look at the evidence of the mental status or risk
assessment as it exists at the time of the State's second petition. See Sporn, 289 Kan. at
688-89. Here, the State presented evidence of a material change in the risk assessment
based on Sigler's behavior on parole and the results of his evaluations under the Acute
2007. These tests showed his risk assessment to be low to moderate while attending sex
offender treatment while incarcerated. But after his release into the community, in a fairly
short time period, his risk level increased from moderate to high. And Laudermilk
testified Sigler was not fully participating in treatment. She testified Sigler was having
fantasies about naked children but he refused to discuss these fantasies with her. She
explained how this evidenced a progression on the sex-offending cycle.


       Sigler's case is distinguishable from Sporn. The State here laid out the basis for
establishing a material change in its petition. It also presented evidence of problematic
behavior while on parole that reflected an increased risk of Sigler reoffending, although
some of that behavior may not have risen to the level of a violation. And, as discussed,
the State showed Sigler's risk assessment, as reflected by the Acute 2007 testing, had
increased since his release from prison and consistently remained moderate to high after
that release. Here, the State has presented sufficient evidence to show a material change.
The district court did not err in concluding the res judicata doctrine did not bar the second
proceeding and allowing the case to proceed to trial.
                                             22
2. The district court did not violate Sigler's right to due process.

       The second issue arises from the State's witness' testimony about Sigler having
appealed his civil commitment. Grimmell testified:


       "[T]his case is more dramatic than most because he was actually civilly committed once,
       and then his commitment was overturned by an appeals court. And a lot of guys would
       have said, wow, that was a real shot across my bow. I better be careful on parole. But not
       Mr. Sigler."


       On cross-examination, Grimmell admitted he did not know what had happened in
the previous proceeding but had made an assumption. The next day, Sigler testified he
had not previously been committed and had not taken a prior appeal. No witness testified
to what happened in the prior proceeding.


       Sigler's counsel did not object to Grimmell's testimony, and he did not
request a mistrial. But on appeal Sigler argues the district court had a duty to sua
sponte declare a mistrial because of the prejudicial nature of the information. The
Court of Appeals panel held that Sigler waived this issue by not objecting at trial.
In re Sigler, 2018 WL 5728261, at *4 (citing State v. King, 288 Kan. 333, 349,
204 P.3d 585 [2009]). Alternatively, the panel held a fundamental failure in the
proceeding had not occurred because any prejudice caused by the statements could
be—and was—cured or mitigated with an instruction from the court. The panel
thus concluded the district court did not err. 2018 WL 5728261, at *4.


       We next consider both alternatives discussed by the panel.




                                                   23
       2.1 Sigler did not waive the issue.


       The State argued, and the Court of Appeals agreed, that the contemporaneous
objection rule precludes Sigler's argument. Under this rule, codified at K.S.A. 60-404,


               "A verdict or finding shall not be set aside, nor shall the judgment or decision
       based thereon be reversed, by reason of the erroneous admission of evidence unless there
       appears of record objection to the evidence timely interposed and so stated as to make
       clear the specific ground of objection."


We cautioned in King, "From today forward, in accordance with the plain language
of K.S.A. 60-404, evidentiary claims . . . must be preserved by way of a
contemporaneous objection for those claims to be reviewed on appeal." 288 Kan. at 349.
Since then, we have invoked the contemporaneous objection rule to bar review even
when a party asserts the evidentiary claim implicates due process. State v. Solis, 305 Kan.
55, 63-64, 378 P.3d 532 (2016).


       Even so, using K.S.A. 60-404 here is like pushing a round peg into a square hole.
K.S.A. 60-404 governs appeals relating to the erroneous admission of evidence. But
Sigler's issue is with the failure of the district court to declare a mistrial. And neither
K.S.A. 60-404 nor any other authority requires an objection before a district court
considers whether to declare a mistrial. As to the appeal, our review is about whether the
district court should have acted because of undue prejudice. We thus hold the State
cannot rely on K.S.A. 2018 Supp. 60-404 to establish a preservation problem with
Sigler's argument.




                                                   24
       2.2 The district court did not abuse its discretion by not granting a mistrial.

       In arguing the district court should have declared a mistrial, Sigler relies on
principles taken from criminal law. In doing so, he acknowledges an SVPA commitment
proceeding is civil, with some procedural protections to assure a respondent receives due
process that resembles protections afforded defendants in criminal proceedings. To
support this proposition, he relies on In re Care & Treatment of Sykes, 303 Kan. 820,
824, 367 P.3d 1244 (2016); In re Care & Treatment of Hay, 263 Kan. 822, 831, 953 P.2d
666 (1998). Sigler then asks this court to analogize Grimmell's disclosure to criminal
cases in which a mistrial was required based on disclosure a criminal defendant had been
convicted of the same offense in a previous trial. Sigler cites this line of cases, beginning
with United States v. Williams, 568 F.2d 464 (5th Cir. 1978), for the proposition that
"exposure of jurors during a retrial to the fact of a defendant's conviction in a first trial
deprives the defendant of a fair trial."


       We assume without deciding that Grimmell's testimony can be fairly analogized to
cases addressing the effect of evidence about a criminal defendant's prior conviction of
the same offense at a previous trial. Williams and similar cases hold the prejudicial nature
of the evidence prevents a fair trial. Kansas law similarly recognizes that prejudicial
conduct in or out of the courtroom may make it impossible to proceed without injustice to
one of the parties. See K.S.A. 22-3423(1)(c); see also K.S.A. 2018 Supp. 21-5110; In re
Bowman, 309 Kan. 941, 441 P.3d 451 (2019). In such cases, a district court must
consider two questions in determining whether to grant a mistrial: (1) whether a
fundamental failure occurred in the proceeding, and (2) if so, whether it is possible to
continue without an injustice. We review for abuse of discretion both the district court's
consideration of—or more accurately here, failure to consider—these issues and its
ultimate determination of whether to grant a mistrial. See State v. Ward, 292 Kan. 541,
550, 256 P.3d 801 (2011). An abuse of discretion occurs when the ruling is arbitrary,

                                               25
fanciful, or unreasonable; based on error of law; or based on error of fact. State v.
Kleypas, 305 Kan. 224, 268-69, 382 P.3d 373 (2016). And we review whether a party's
constitutional right to due process has been violated as a question of law subject to de
novo review. See In re Sykes, 303 Kan. at 823.


       Applying this standard here, we conclude the district court did not abuse its
discretion when it did not sua sponte recognize that the trial could not continue without
an injustice after Grimmell's inaccurate testimony. We agree that an error occurred.
Grimmell testified to inaccurate information. And we agree this information was
prejudicial. But Sigler does not meet the second requirement of establishing that the
district "court abuse[d] its discretion when deciding whether the conduct resulted in
prejudice that could not be cured or mitigated through jury admonition or instruction,
resulting in an injustice." Ward, 292 Kan. at 551.


       To explain why, it is necessary to consider our caselaw discussing the Fifth Circuit
Court of Appeals decision in Williams on which Sigler relies. In Williams, the Fifth
Circuit stated it was "hard pressed to think of anything more damning to an accused than
information that a jury had previously convicted him for the crime charged." 568 F.2d at
471. The Williams court viewed the evidence as so prejudicial the court could not
mitigate its harm through a curative instruction or admonition. 568 F.2d at 471. As Sigler
argues, other courts have adopted Williams' view. This includes the Delaware Supreme
Court in Hughes v. State, 490 A.2d 1034, 1046-47 (Del. 1984), that Sigler cites. But
Sigler ignores the fact that this court took a different view in State v. Cook, 281 Kan. 961,
969, 135 P.3d 1147 (2006), and State v. Farrar, 103 Kan. 774, 777, 176 P. 987 (1918).


       In Cook, we summarized our holding in Farrar by stating that "information that
the defendant had been convicted of the same crime in a previous trial 'does not naturally
or necessarily tend to corrupt the deliberations of a jury, presumably regardful of their
                                             26
oaths and the instructions given by the court . . . .'" Cook, 281 Kan. at 969. The Cook
court embraced the Farrar principle even after considering Williams and similar cases
from other jurisdictions, including the Delaware Supreme Court case Sigler cites. See
Cook, 281 Kan. at 978; see also Cook, 281 Kan. at 975 (discussing Hughes, 490 A.2d
1034).


         We see nothing that requires a different result here. On cross-examination,
Grimmell testified he had merely assumed the information and he lacked knowledge
about what happened. Then, Sigler rebutted Grimmell's testimony. And both Sigler and
the State explained during their opening statements and closing arguments that Sigler had
not been committed during the first proceeding. While these arguments are not evidence,
the State's endorsement of the evidence submitted through the testimony of Sigler rather
than through its own witness significantly undercuts the harm. Finally, the district court
instructed the jury: "In 2013 a petition seeking to involuntarily commit Robert J. Sigler
as a sexually-violent predator was filed and was ultimately denied. Do not speculate or
otherwise concern yourselves with any potential reasons for any decisions in a prior
petition."


         In short, Grimmell's inaccurate testimony is problematic but not so prejudicial that
the district court abused its discretion by not sua sponte granting a mistrial. The effective
cross-examination of Grimmell; Sigler's testimony; the State and Sigler's opening and
closing statements; and, most significantly, the court's instruction cured the false
impression created by Grimmell's testimony. The district court did not err by failing to
declare a mistrial, and the Court of Appeals did not err in affirming that decision.




                                              27
                                        CONCLUSION


       In conclusion, the State carried its burden of establishing a material change in
circumstances that prevented application of the res judicata doctrine. And the district
court did not err in failing to sua sponte declare a mistrial.


       We affirm the district court and the Court of Appeals.


       NUSS, C.J., not participating.
       MICHAEL J. MALONE, Senior Judge, assigned.1


                                             ***


       JOHNSON, J., dissenting: I disagree with the majority's avoidance of the question
of the State's statutory authority under the Kansas Sexually Violent Predator Act (SVPA),
K.S.A. 2018 Supp. 59-29a01 et seq., to file serial petitions to civilly commit Sigler while
he was serving but one sentence for a sexually violent crime. Further, I disagree with the
majority's assessment that there was a material change in circumstances.


       Sigler cited to our decision in In re Care & Treatment of Sporn, 289 Kan. 681, 215
P.3d 615 (2009), to argue that K.S.A. 59-29a03(a)(1) authorized only one SVPA
commitment proceeding. In Sporn, we said:




1
 REPORTER'S NOTE: Senior Judge Malone was appointed to hear case No. 118,914
vice Justice Nuss under the authority vested in the Supreme Court by K.S.A. 20-2616.

                                              28
               "As we have suggested, the language of the SVPA could be interpreted to
       authorize one commitment proceeding during the pendency of the 'complete sentence' for
       a sexually violent offense. For example, K.S.A. 59-29a03(a)(1) speaks to '[t]he
       anticipated release from total confinement of a person who has been convicted of a
       sexually violent offense.'" 289 Kan. at 687-88.


       Sporn noted that "'[t]he interpretation of a statute is a question of law over which
this court has unlimited review. An appellate court is not bound by the trial court's
interpretation.'" 289 Kan. at 683-84. Given that we have before us the statute to be
interpreted, the result desired by the appellant, and the authority to review the question
without limit, I do not know why we do not finish what we started in Sporn. It was
unnecessary to definitively answer the statutory question in that case, but it is necessary
to do justice in this case.


       If we were to address whether the State exceeded its authority to commit Sigler for
what very well may be a life sentence, I would hold that the SVPA should be interpreted
to permit the State but one bite of the apple, i.e., it can have one SVPA commitment
proceeding per one complete sentence for a sexually violent offense.


       But if I were to reach the material change in circumstances question, I would abide
by what we said in Sporn. Viewing pornography and sexually explicit websites on the
computer were facts offered "to shore up or corroborate the previous diagnosis and risk
assessment" in the hope of getting a different result in the second proceeding. 289 Kan. at
689. The other fact relied upon by the majority relating to a consensual adult relationship
simply cannot carry the weight to which it is assigned. Slip op. at 8. I would reverse and
remand with instructions to dismiss the proceedings.




                                                   29
