                                         No. 120,184

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                         In the Matter of the Care and Treatment of
                                   RICHARD A. QUILLEN.


                              SYLLABUS BY THE COURT

1.
       When analyzing jury instruction issues, an appellate court follows a three-step
process. First, the court must determine whether it can or should review the issue, i.e.,
whether there is a lack of appellate jurisdiction or a failure to preserve the issue for
appeal. Second, it must consider the merits of the claim to determine whether legal or
factual errors occurred below. And third, if there is error, it must assess whether the error
requires reversal, i.e., whether the error can be deemed harmless.


2.
       The Kansas Sexually Violent Predator Act, K.S.A. 2018 Supp. 59-29a01 et seq.,
authorizes the State to civilly commit sexually violent predators to the custody of the
Kansas Department for Aging and Disability Services for treatment.


3.
       To commit a person under the Kansas Sexually Violent Predator Act, K.S.A. 2018
Supp. 59-29a02(a), the State must prove beyond a reasonable doubt that (1) the person
has been convicted of or charged with a sexually violent offense, (2) the person suffers
from a mental abnormality or personality disorder, (3) that mental abnormality or
personality disorder makes the person likely to commit repeat acts of sexual violence, and
(4) the person has serious difficulty controlling their dangerous behavior.




                                               1
4.
       When a person is civilly committed under the Kansas Sexually Violent Predator
Act, K.S.A. 2018 Supp. 59-29a08 entitles such person to an annual review to determine
whether his or her mental abnormality or personality disorder has so changed as to render
them safe to be at large. The committed person can also use the annual review process to
seek transitional release out of the treatment program by filing a petition for transitional
release.


5.
       Upon filing a petition for transitional release, the committed person has the burden
under K.S.A. 2018 Supp. 59-29a08(d) to show probable cause to believe that the person's
mental abnormality or personality disorder has significantly changed so that he or she is
safe to be placed in transitional release.


6.
       If the committed person establishes probable cause, the court must conduct a
hearing on the petition for transitional release. Under K.S.A. 2018 Supp. 59-29a08(g), the
burden of proof at this hearing is on the State to prove beyond a reasonable doubt that the
committed person's mental abnormality or personality disorder remains such that the
person is not safe to be placed in transitional release and if transitionally released is likely
to engage in repeat acts of sexual violence.


7.
       Due process requires annual review proceedings to utilize the same standard of
proof as used in the original commitment proceedings. As such, to deny a committed
person release, the State is also constitutionally required to prove beyond a reasonable
doubt that the person would have serious difficulty controlling his or her behavior if
transitionally released.



                                               2
       Appeal from Johnson District Court; KEVIN P. MORIARTY, judge. Opinion filed October 18,
2019. Vacated and remanded with directions.


       Michael J. Bartee, of Michael J. Bartee, P.A., of Olathe, for appellant.


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


Before GREEN, P.J., STANDRIDGE, J., and MCANANY, S.J.


       STANDRIDGE, J.: In 2006, Richard A. Quillen was civilly committed to the
custody of the Kansas Secretary of Social and Rehabilitation Services, now the Kansas
Department for Aging and Disability Services (KDADS), under the Kansas Sexually
Violent Predator Act (KSVPA). As part of that commitment, KDADS is required to
conduct a yearly review and report to the district court regarding Quillen's progress, the
current state of his mental condition, and his treatment staff's recommendation regarding
transitional release. In 2013, Quillen challenged KDADS's recommendation that he
remain civilly committed and requested a jury trial to determine if he should be placed
into transitional release. Quillen's request was eventually granted, and a jury trial was
held in April 2018. But the jury found the State met its burden to prove beyond a
reasonable doubt that Quillen did not meet the criteria for transitional release. Quillen
filed a motion for a new trial, claiming the district court violated his right to due process
when it refused to give a jury instruction that included "serious difficulty controlling
behavior" as a separate element the State must prove in order for the jury to find he did
not meet the criteria for transitional release. The district court denied the motion, and
Quillen appeals. For the reasons stated below, we vacate the jury's verdict and remand the
matter for a new trial, with directions to instruct the jury that, in addition to the other
elements, the State must prove beyond a reasonable doubt that Quillen would have
serious difficulty controlling behavior if transitionally released.




                                                    3
                                            FACTS

       In 1998, Quillen was convicted of one count of aggravated indecent solicitation of
a child and one count of lewd and lascivious behavior. He was sentenced to 43 months in
prison. Prior to his release, the State filed a petition—pursuant to K.S.A. 59-29a01—to
determine whether Quillen qualified as a sexually violent predator subject to involuntary
civil commitment upon release. Quillen initially contested the petition but later agreed to
enter a consent decree, in which he stipulated to the fact that he was a sexually violent
predator within the meaning of K.S.A. 59-29a01 et seq. As part of this consent decree,
the State agreed that if Quillen ever decided to file a petition for transitional release under
K.S.A. 2018 Supp. 59-29a08, the State would waive the requirement that Quillen first
have a probable cause hearing. The district court acknowledged Quillen's stipulation and
the terms of the consent decree and then entered judgment accordingly. Based on that
judgment, the court committed Quillen to the custody of KDADS and sent him to the
Larned State Security Hospital Sexual Predator Treatment Facility for treatment
(Program).


       Once committed, KDADS conducted its yearly review of Quillen as required and,
in each of these years, submitted a report advising the district court that Quillen's mental
condition or personality disorder had not changed sufficiently to qualify him for
transitional release. As required, KDADS provided Quillen with a copy of the report and
notice that he had the right to petition for release over the Secretary's objection. While
Quillen acknowledged receipt of the annual report each year, he did not challenge the
findings or recommendations. That changed in 2013, however, when Quillen requested a
hearing to determine whether he should be placed into transitional release over KDADS's
objection. The district court summarily denied the request without setting a hearing.
Quillen appealed. In re Care and Treatment of Quillen, No. 114,708, 2016 WL 7324416,
at *1 (Kan. App. 2016) (unpublished opinion).




                                              4
       On appeal, Quillen moved for summary disposition. For its part, the State
suggested that Quillen's motion for summary disposition be construed as a motion for
remand and "'that on remand, [Quillen] be given a hearing pursuant to K.S.A. 59-29a08,
with all attendant rights, including the right to request a jury, the right to counsel, and the
right to an independent examination.'" Quillen, 2016 WL 7324416, at *1. The motions
panel of this court adopted the State's suggestion and issued an order summarily reversing
and remanding the case for a hearing pursuant to K.S.A. 59-29a08. In the order, the panel
specifically acknowledged the fact that, in the original consent decree, the State waived
the requirement that Quillen first have a probable cause hearing; therefore, the court
remanded the case for a hearing on transitional release, noting that Quillen had the right
to request a jury. 2016 WL 7324416, at *1.


       On remand, Quillen was appointed counsel and received an independent
evaluation from Dr. Robert Barnett. Before a trial could take place, however, another
annual review and report was issued and, like the 2013 report, it too recommended that
Quillen remain in the Program and not be placed into transitional release. Quillen
challenged that report as well, and the cases were consolidated into one jury trial that was
set for July 20, 2015. Quillen, 2016 WL 7324416, at *1-2.


       On July 1, 2015, Senate Bill 12 went into effect and made significant changes to
K.S.A. 59-29a08. Quillen, 2016 WL 7324416, at *2; L. 2015, ch. 95; K.S.A. 2015 Supp.
59-29a08. Two weeks later, at a pretrial conference in Quillen's case, the State argued the
changes made to the statute by Senate Bill 12 meant Quillen no longer was permitted to
have a jury consider his petition for transitional release and, therefore, the case should be
tried to the bench. The district court agreed, denied Quillen's request for a jury trial, and
conducted a bench trial. At the close of trial, the court took the matter under advisement.
A few months later, the court issued a written decision finding that Quillen's "'mental
abnormality and/or personality disorder remains such that he is not safe to be placed in
transitional release, and that if [Quillen] was placed in transitional release, he would be


                                               5
likely to engage in acts of sexual violence.'" 2016 WL 7324416, at *2. The court denied
Quillen's petition for transitional release and ordered Quillen to remain in the Program.
2016 WL 7324416, at *2.


       Quillen appealed, arguing, among other things, that he was entitled to a jury trial
and that the district court erred when it found that the amendments to K.S.A. 59-29a08
made by Senate Bill 12 applied retroactively. Quillen, 2016 WL 7324416, at *1-2. A
panel of this court agreed and remanded Quillen's case to the district court so that a jury
trial could be held. 2016 WL 7324416, at *2-6. But before the second trial could be
conducted, Quillen suffered a stroke that (1) made it difficult for him to express himself
and get words out and (2) partially paralyzed his right side, which hindered his mobility
and—because he is right handed—his ability to write.


       On December 5, 2017, Quillen filed a motion to be discharged from the Program
under K.S.A. 59-29a25, arguing that the physiological changes caused by the stroke were
permanent and rendered him unable to commit a sexually violent offense. Following a
hearing, the district court found Quillen had failed to present clear and convincing
evidence to establish that his physical condition rendered him unable to commit a
sexually violent offense. Therefore, the court denied the motion.


       On April 16, 2018, Quillen's case proceeded to a jury trial. Quillen appeared by
video conference and participated as best as he could, given his physical limitations, and
mostly responded with "yes" or "no" answers. After the case was submitted, the district
court held a jury instructions conference and proposed the following instructions:


                                    "JURY INSTRUCTION NO. 2
               "In this trial, the State has the burden to prove beyond a reasonable doubt that
       [Quillen's] mental abnormality or personality disorder remains such that he is not safe to




                                                    6
       be placed in transitional released [sic] and if transitionally released is likely to engage in
       repeat acts of sexual violence.
               "[Quillen] is not required to disprove the State's claim. The test you must use is
       this: If you have a reasonable doubt about the truth of any of the required elements that
       the State must prove, you must find that [Quillen] is safe to be placed in transitional
       release. If you have no reasonable doubt about the truth of any of the required elements
       that the State must prove, you should find that [Quillen] is not safe to be placed in
       transitional release, and should remain in secure commitment.


                                      "JURY INSTRUCTION NO. 3
               "[Quillen] is civilly committed to Larned State Security Hospital with the
       diagnoses of mental abnormalities and personality disorders including Pedophilic
       Disorder, Attracted to Females, Nonexclusive Type; Other Specified Personality Disorder
       with Borderline and Antisocial features.
               "The State alleges [Quillen] is not safe to be placed in transitional release.
       [Quillen] believes he is eligible for transitional release.
               "To deny his transitional release, the State must prove the following:
               "1. [Quillen's] mental abnormality or personality disorder remains such that he is
       not safe to be placed in transitional release.
               "2. If transitionally released, he is likely to engage in acts of sexual violence."


Quillen objected to these instructions. Specifically, Quillen requested each instruction
include additional language requiring the State to prove, as an additional element, "that
his mental abnormality or personality disorder makes it seriously difficult for him to
control his dangerous behavior." Quillen argued that the additional language was
necessary to satisfy due process concerns and to comply with the United States Supreme
Court's decisions in Kansas v. Hendricks, 521 U.S. 346, 117 S. Ct. 2072, 138 L. Ed. 2d
501 (1997), and Kansas v. Crane, 534 U.S. 407, 122 S. Ct. 867, 151 L. Ed. 2d 856
(2002). The district court rejected Quillen's arguments and gave Instructions 2 and 3 as
proposed.




                                                        7
       After deliberating, the jury found the State met its burden to prove that Quillen's
mental abnormality or personality disorder remains such that he is not safe to be placed in
transitional release and, if transitionally released, Quillen is likely to engage in repeat acts
of sexual violence. The district court accepted the jury's verdict and ordered Quillen to
remain committed. Quillen filed a motion for a new trial in which, among other things, he
reasserted his arguments regarding the jury instructions. But the district court remained
unconvinced and denied the motion. Quillen timely appeals.


                                                ANALYSIS

       Quillen argues the district court deprived him of his right to due process by
overruling his objection and giving Instructions 2 and 3 as proposed by the court, without
adding language that would require the State to prove Quillen's "mental abnormality or
personality disorder makes it seriously difficult for him to control his dangerous
behavior." When analyzing jury instruction issues, appellate courts follow a three-step
process:


       "'(1) determining whether the appellate court can or should review the issue, i.e., whether
       there is a lack of appellate jurisdiction or a failure to preserve the issue for appeal; (2)
       considering the merits of the claim to determine whether error occurred below; and (3)
       assessing whether the error requires reversal, i.e., whether the error can be deemed
       harmless.' [Citation omitted.]" State v. McLinn, 307 Kan. 307, 317, 409 P.3d 1 (2018).


Here, there is no dispute that this court has jurisdiction over this case and that Quillen
properly preserved this issue for appellate review. As such, we move directly to the
second step of the analysis and consider the merits of Quillen's claim that the instructions,
as given, constituted legal error. McLinn, 307 Kan. at 317. Where, as here, the gravamen
of a party's complaint concerns a constitutional due process challenge, an appellate court
exercises unlimited review. State v. Wade, 284 Kan. 527, 534, 161 P.3d 704 (2007).




                                                      8
Error

        The issue presented here is whether the elements required to prove a committed
person is not safe to be placed in transitional release under K.S.A. 2018 Supp. 59-
29a08(c) must be the same as those required to initially commit the person under K.S.A.
2018 Supp. 59-29a02(a) in the first place.


        We begin by setting forth the elements that the State is required to prove at an
initial commitment hearing under the KSVPA. Before it was amended in 2018, the
KSVPA required the State to prove three elements when seeking to civilly commit a
person as a sexually violent predator: (1) The respondent has been convicted of or
charged with a sexually violent offense, (2) the respondent suffers from a mental
abnormality or personality disorder, and (3) the mental abnormality or personality
disorder makes the respondent likely to commit repeat acts of sexual violence. See
K.S.A. 2018 Supp. 59-29a02(a) (defining "sexually violent predator" as "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"). The State must prove these elements beyond a
reasonable doubt. See K.S.A. 2018 Supp. 59-29a07(a).


        Although not reflected in the statute before it was amended in 2018, a fourth
element of proof was imposed by the United States Supreme Court in 2002 when it
issued its opinion in Kansas v. Crane, 534 U.S. 407. In Crane, the Court clarified that a
person's inability to control dangerous behavior is an element that must be proved in
order for a civil commitment under the KSVPA to be constitutional: "[T]here must be
proof of serious difficulty in controlling behavior." 534 U.S. at 413. Relying on Crane,
our Kansas Supreme Court also added this fourth element to its classification test for
sexually violent predators in 2011 when it issued its opinion in In re Care & Treatment of
Williams, 292 Kan. 96, 106, 253 P.3d 327 (2011). In 2018, the Legislature amended the


                                              9
statute to expressly define the term "sexually violent predator" to include this fourth
element. See K.S.A. 2018 Supp. 59-29a02(a) ("'Sexually violent predator' means 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. [Emphasis added.]).


       If, at the initial commitment hearing, the State proves beyond a reasonable doubt
that a person is a sexually violent predator under Kansas law, the person is committed
"until such time as the person's mental abnormality or personality disorder has so
changed that the person is safe to be at large." K.S.A. 2018 Supp. 59-29a07(a). But the
KSVPA specifically provides for annual reviews to reexamine the mental condition of the
confined person, a process that also may be used to seek transitional release from the
program. K.S.A. 2018 Supp. 59-29a08. The recommendation of the examiner is
memorialized in an annual report. The Secretary must forward the annual report to the
district court that committed the individual, along with a notice containing a waiver of
rights. K.S.A. 2018 Supp. 59-29a08(a). The notice ensures the committed person is aware
of his or her right to petition the district court for release from the program even if the
Secretary suggests recommitment based on the results of the annual evaluation. Griffin v.
Bruffett, 53 Kan. App. 2d 589, 594-95, 389 P.3d 992 (2017).


       After the district court receives the evaluation and notice, it must conduct an
annual review hearing. 53 Kan. App. 2d at 595. Under the applicable statute, the
committed person has the burden to show probable cause to believe that person's mental
abnormality or personality disorder has significantly changed so that he or she is safe to
be placed in transitional release. K.S.A. 2018 Supp. 59-29a08(d). If the committed person
establishes probable cause, the court must conduct a hearing on the petition for
transitional release. K.S.A. 2018 Supp. 59-29a08(g).



                                              10
       In this case, however, the transitional release process is governed by the consent
decree signed by the parties in 2006. In the consent decree, the State waived the
requirement that Quillen first show probable cause before being entitled to a hearing on
transitional release. And the court signed off on the consent decree at the time it was
entered. Consistent with the consent decree, the court did not hold a probable cause
hearing.


       Notably, the burden of proof at a hearing for transitional release is not on the
committed person, but instead is on the State "to prove beyond a reasonable doubt that
the committed person's mental abnormality or personality disorder remains such that the
person is not safe to be placed in transitional release and if transitionally released is likely
to engage in repeat acts of sexual violence." K.S.A. 2018 Supp. 59-29a08(g).


       Unlike K.S.A. 2018 Supp. 59-29a02(a), the Legislature did not amend the
statutory elements in K.S.A. 2018 Supp. 59-29a08(g) to include a requirement that, if
transitionally released, the committed person would have serious difficulty in controlling
such person's dangerous behavior. Nevertheless, Quillen argues the United States
Supreme Court's decisions in Crane and Hendricks, as applied by our Supreme Court in
Williams, constitutionally require the State to prove that he would have serious difficulty
controlling his behavior if transitionally released. Quillen's argument is not without merit.


       Relevant here, the issue for decision before the United States Supreme Court in
Hendricks was whether the statutory condition of "mental abnormality" satisfied the
substantive due process requirement that involuntary civil commitment must be based on
the finding of the presence of a mental illness. 521 U.S. at 350. The Court described the
operation of the Kansas law as follows:


               "Once an individual was confined, the Act required that '[t]he involuntary
       detention or commitment . . . shall conform to constitutional requirements for care and



                                                  11
       treatment.' § 59-29a09. Confined persons were afforded three different avenues of
       review: First, the committing court was obligated to conduct an annual review to
       determine whether continued detention was warranted. § 59-29a08. Second, the Secretary
       was permitted, at any time, to decide that the confined individual's condition had so
       changed that release was appropriate, and could then authorize the person to petition for
       release. § 59-29a10. Finally, even without the Secretary's permission, the confined person
       could at any time file a release petition. § 59-29a11. If the court found that the State
       could no longer satisfy its burden under the initial commitment standard, the individual
       would be freed from confinement." (Emphasis added.) 521 U.S. at 353.


       The Hendricks Court ultimately concluded that the statutory definition of mental
abnormality in the Act conformed to the substantive requirements of the Due Process
Clause. 521 U.S. at 356. In so doing, the Court cited to the statutory definition of mental
abnormality, which includes a requirement that sexually violent predators "suffer from a
volitional impairment rendering them dangerous beyond their control." 521 U.S. at 358.
The "lack of volitional control, coupled with a prediction of future dangerousness,
adequately distinguishes Hendricks from other dangerous persons who are perhaps more
properly dealt with exclusively through criminal proceedings." 521 U.S. at 360. Later in
the opinion, the Hendricks Court observed that the criteria for commitment and continued
commitment in the Kansas statutory scheme are the same:


                 "Furthermore, commitment under the Act is only potentially indefinite. The
       maximum amount of time an individual can be incapacitated pursuant to a single judicial
       proceeding is one year. § 59-29a08. If Kansas seeks to continue the detention beyond that
       year, a court must once again determine beyond a reasonable doubt that the detainee
       satisfies the same standards as required for the initial confinement. This requirement
       again demonstrates that Kansas does not intend an individual committed pursuant to the
       Act to remain confined any longer than he suffers from a mental abnormality rendering
       him unable to control his dangerousness. [Citation omitted.]" (Emphasis added.) 521 U.S.
       at 364.




                                                    12
       In finding the commitment law constitutional, it appears the United States
Supreme Court interpreted the Act to require that, in order to continue one's commitment,
the same standards must be met as those at the original commitment. In other words, the
Act should not continue to detain those who no longer meet the standard for commitment.


       Five years after Hendricks, the United States Supreme Court issued its opinion in
Kansas v. Crane, 534 U.S. 407 (2002). In Crane, the Court held that the Act's initial
commitment standard requires the State to prove beyond a reasonable doubt that the
respondent has serious difficulty controlling his or her behavior. See Crane, 534 U.S. at
413. Since Crane, Kansas has recognized the need for a jury instruction at commitment
trials on the element of serious difficulty controlling behavior. As noted earlier, the
Legislature recently amended the statute to require the State to prove the respondent has
serious difficulty controlling his or her behavior, presumably to comply with the
constitutional mandate in Crane. Considering the holdings in Hendricks and Crane
together, we find due process requires the fact-finder—at both the initial commitment
proceeding and the annual review proceedings—to conclude beyond a reasonable doubt
that the respondent has serious difficulty controlling his or her behavior.


       By contrast, the State argues that the Hendricks decision was made in the context
of an initial commitment proceeding and therefore any comments about the annual
review proceedings are, at best, dicta and not binding on this case. A panel of this court
recently lent credence to this argument when it noted that the assessment made at the
initial commitment proceedings and the assessment made at the transitional release
proceedings were two different assessments—one related to whether a person is a
sexually violent predator and the other whether a person is safe for transitional release—
and therefore are governed by two different standards. In re Care and Treatment of
Burch, No. 116,600, 2017 WL 3947430, at *5 (Kan. App. 2017) (unpublished opinion),
rev. denied 307 Kan. 987 (2018). But the Burch court cited to the two different statutes
only in passing, and the court failed to expound on the issue or otherwise identify any


                                             13
difference in the standard of proof required to prove a person is a sexually violent
predator and the standard of proof required to prove a person is not safe for transitional
release. Moreover, the Burch court was not presented with the constitutional due process
claim presented by Quillen.


       Although we find the passing comments in Burch to be dicta, we readily
acknowledge that the State's argument is grounded in the fact that the Hendricks decision
was made in the context of an initial commitment proceeding. And if we were writing on
a blank slate, the State's argument would be worth exploring. But our slate is not blank.
This court is required to follow United States and Kansas Supreme Court precedent
absent some indication of a departure from an earlier position. State v. Belone, 51 Kan.
App. 2d 179, 211, 343 P.3d 128 (2015). In finding it constitutional, the Hendricks Court
interpreted the Act to require courts to utilize the same standard of proof for annual
KSVPA review proceedings that it utilizes in original commitment proceedings. 521 U.S.
at 353, 364. And Crane expressly states that the initial commitment standard of proof
requires the State to prove beyond a reasonable doubt that a respondent has serious
difficulty controlling his or her behavior. 534 U.S. at 413. Based on Crane, our Kansas
Supreme Court added the "difficulty controlling behavior" requirement as an essential
element to the classification test for sexually violent predators. In re Care & Treatment of
Williams, 292 Kan. at 106. Based on this line of cases, we conclude as a matter of law
that the State was constitutionally required to prove beyond a reasonable doubt that
Quillen would have serious difficulty controlling his behavior if transitionally released.
For this reason, we find the district court erred in denying Quillen's request to add that
essential element to Instruction 2 and Instruction 3.


Harmlessness

       Because we have found the district court erred by denying Quillen's request for
jury instructions that required the State to prove he would have serious difficulty


                                             14
controlling behavior if transitionally released, we now must determine whether that error
requires reversal, i.e., whether it can be deemed harmless. See McLinn, 307 Kan. at 317.
When an error infringes upon a party's federal constitutional rights, a court will declare a
constitutional error harmless only when the party benefiting from the error persuades the
court "beyond a reasonable doubt that the error complained of will not or did not affect
the outcome of the trial in light of the entire record, i.e., proves there is no reasonable
possibility that the error affected the verdict." State v. Ward, 292 Kan. 541, 569, 256 P.3d
801 (2011) (citing Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705
[1967]).


       Here, the State argues that even if the failure to give Quillen's requested
instructions constituted error, the error was harmless because the jury's finding on the
first element in the instruction that was given—that Quillen's mental abnormality or
personality disorder remains such that he is not safe to be placed in transitional release—
necessarily denotes a finding by the jury that Quillen has a serious difficulty controlling
his behavior. But the State's argument is a logical fallacy. Instructions 2 and 3 cannot be
erroneous because they do not implicitly include a finding that the person has a serious
difficulty controlling his or her behavior while, at the same time, be harmless because
they implicitly and necessarily include a serious difficulty controlling behavior finding.
We find the State's argument to be without merit.


       In a separate argument, the State notes that Quillen was diagnosed with
pedophilia, which the Crane Court characterized as "a mental abnormality that critically
involves what a lay person might describe as a lack of control." 534 U.S. at 414. Relying
on this characterization, the State argues that in finding Quillen was not safe to be placed
into transitional release, the jury necessarily must have believed that he has serious
difficulty controlling his dangerous behavior (i.e., his pedophilia). But the cited passage
from Crane was referring to Hendricks, where the person subject to commitment
proceedings specifically admitted that he could not control his urge to molest children.


                                              15
See Crane, 534 U.S. at 414; Hendricks, 521 U.S. at 355. Quillen made no such admission
in this case. We find nothing in the record from which we can conclude that the jury's
decision finding Quillen was not safe for transitional release is somehow equivalent to a
finding that Quillen has serious difficulty controlling his behavior. This is particularly
true where, as here, the jury was not asked to consider that question and there was
competing expert testimony on the issue.


       As the party benefitting from the error, we find the State has failed to bear its
burden to persuade us beyond a reasonable doubt that the error complained of did not
affect the outcome of the trial in light of the entire record. See Ward, 292 Kan. at 569.
For this reason, we vacate the jury's verdict and remand the matter for a new trial, with
directions to instruct the jury that, in addition to the other elements, the State must prove
beyond a reasonable doubt that Quillen would have serious difficulty controlling
behavior if transitionally released.


       Vacated and remanded with directions.




                                              16
