               IN THE SUPREME COURT OF THE STATE OF KANSAS

                                            No. 108,563

                                  In the Care and Treatment of
                                        KODI A. THOMAS.


                                SYLLABUS BY THE COURT


1.
       An appellate court will not overlook the lack of an objection at trial as required by
K.S.A. 60-404 when an alleged Confrontation Clause violation is raised, even if the
appellant argues review is necessary to serve the ends of justice or to prevent the denial
of the defendant's right to a fair trial.


2.
       K.S.A. 2014 Supp. 60-251(d)(2) provides that a court may consider a jury
instruction error even if it was not preserved by an objection made with the district court
in the manner provided by law, if the giving or failure to give the instruction is clearly
erroneous and the error affects substantial rights.


3.
       An appellate court uses a two-step process to determine whether a challenged jury
instruction is clearly erroneous. First, the court must determine whether there was any
error at all by considering whether the instruction was legally and factually appropriate,
employing an unlimited review of the entire record. If the court finds error, it must assess
whether it is firmly convinced the jury would have reached a different verdict had the
instruction error not occurred. The party claiming error has the burden to prove the
degree of prejudice necessary for reversal.

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        Review of the judgment of the Court of Appeals in an unpublished opinion filed November 8,
2013. Appeal from Douglas District Court; SALLY D. POKORNY, judge. Opinion filed May 1, 2015.
Judgment of the Court of Appeals affirming the district court on the issues subject to our grant of review
is affirmed. Judgment of the district court on those issues is affirmed.


        Elbridge Griffy IV, of Lawrence, argued the cause and was on the brief for appellant.


        Natalie Chalmers, assistant solicitor general, of Office of Kansas Attorney General, argued the
cause and was on the brief for appellee.


The opinion of the court was delivered by


        BILES, J.: This appeal arises after a civil jury declared Kodi A. Thomas to be a
sexually violent predator under the Kansas Sexually Violent Predator Act (KSVPA),
K.S.A. 59-29a01 et seq. Thomas claims the district court erred by: (1) permitting the
State's experts to testify about hearsay statements contained within his treatment records;
and (2) improperly instructing on the State's burden of proof. We affirm because the
hearsay challenge was not preserved for appellate review and the jury instruction
deviation from our pattern instructions does not require reversal under our standard of
review.


                            FACTUAL AND PROCEDURAL BACKGROUND


        Thomas was convicted in 1996 of attempted rape and aggravated burglary. Near
the end of his prison sentence, the State sought to involuntarily commit him under the
KSVPA. Thomas stipulated there was probable cause, so he was committed to Larned
State Hospital for evaluation. A jury later found Thomas to be a sexually violent predator
subject to civil commitment. Thomas timely appealed.



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       At the Court of Appeals, Thomas raised three issues: (1) sufficiency of the
evidence; (2) whether the district court violated his due process right to confront
witnesses under the Confrontation Clause of the Sixth Amendment to the United States
Constitution when it allowed the State's expert witnesses to give opinions based on
hearsay; and (3) whether the district court violated his due process rights by giving an
erroneous reasonable doubt instruction. Finding no error within its standard of review, the
panel unanimously affirmed. In re Care & Treatment of Thomas, No. 108,563, 2013 WL
5976064, at *8 (Kan. App. 2013) (unpublished opinion).


       Thomas petitioned this court for review of his second and third challenges
regarding the Confrontation Clause and reasonable doubt instruction. This court granted
review on these issues. Jurisdiction is proper. K.S.A. 2014 Supp. 60-2101(b) (review of
Court of Appeals opinion upon petition for review). Additional facts will be presented
when pertinent.


                  CONFRONTATION CLAUSE CHALLENGE NOT PRESERVED


       At the involuntary commitment trial, the State presented testimony from two
psychologists: Dr. Janet Kohrs, who performed a prerelease evaluation for the
Department of Corrections; and Dr. Gregory Shannon, who assessed Thomas during his
Larned commitment for evaluation after the probable cause determination. Based on
speaking to Thomas and the records available to her, Kohrs testified she believed Thomas
would engage in sexually violent acts in the future and would not be able to control his
behavior outside of a structured environment.


       Without objection, Kohrs explained her opinions by reading verbatim from
disciplinary reports maintained by the Department of Corrections that chronicled
Thomas' various sexual infractions while in prison. Also without objection, she testified
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the records she received from 2006 when Thomas was transferred for a period of time to
Larned for treatment of symptoms of paranoid schizophrenia reflected that Thomas had
been warned by staff for openly masturbating in his room and staring at women's
buttocks and that Thomas persisted in this conduct despite numerous attempts at
redirection. Following Kohrs' cross-examination, the State moved on redirect to admit
Kohrs' written report, which contained this same information. Without objection, the
report was admitted into evidence.


       The State's second medical expert, Shannon, also testified that Thomas posed a
high risk of reoffending if released. He said Thomas' mental abnormalities and
personality disorder—namely cognitive difficulties, schizophrenia, and voyeurism—
impaired Thomas' ability to control his dangerous behavior. He said Thomas' propensity
to commit acts of sexual violence posed a menace to others' health and safety.


       During Shannon's testimony, the State asked if he was aware of incidents in which
Thomas engaged in exhibitionism while at Larned. Shannon responded that he had
reviewed about half a dozen nursing notes chronicling such events. These nursing notes
discussed the same incidents of misconduct in which Thomas openly masturbated in his
room and stared at women's buttocks. When the State asked Shannon to testify about the
first note, Thomas objected on confrontation grounds, arguing that "[t]he individual that
made this record, the statements, are not available and we can't cross-examine them . . . ."
In response, the State argued the notes were not hearsay because it was not trying to
prove the truth of the matters stated but simply asking about information Shannon had
received that he later relied on in forming his opinions.


       Thomas responded that "I guess my argument there would be whether there has
been appropriate foundation that the opinion that this doctor relied on is reasonably relied
on and regularly relied on in the field specialty." The district judge asked the State to
                                              4
"flesh out that foundation" before proceeding further, so Shannon explained how
information about previous hospitalization was useful in making a diagnosis and that he
regularly relies on such information to do so, as do others in his field of practice.
Shannon then read the notes verbatim into evidence without further objection. Shannon's
report, which extensively quoted from the nursing notes, was admitted into evidence after
Thomas completed Shannon's cross-examination without objection.


       The Court of Appeals held that Thomas failed to preserve the Confrontation
Clause issue for appeal. In re Care & Treatment of Thomas, 2013 WL 5976064, at *3-5.
The panel observed the trial court never actually ruled on Thomas' objection to the
nursing notes or made factual findings as to whether the notes were testimonial in nature
and that Thomas never objected to the lack of factual findings. This was significant, the
panel observed, because appellate courts do not make factual findings and the burden is
on the party making a claim to designate a sufficient record for appeal. 2013 WL
5976064, at *4.


       The panel further noted Thomas failed to raise a timely objection to the nursing
notes' admission as required by K.S.A. 60-404 because Thomas modified his objection to
focus on foundation, to which the State provided evidence in response; and then Thomas
failed to raise further objection before Shannon began reading the notes into evidence.
The panel also observed that Thomas failed to object to the admission of Shannon's
report, which contained the quoted material read into the record. Finally, the panel
commented that Thomas did not object to Kohrs' similar trial testimony, "waiving or
abandoning the same admissibility issue as it relates to Dr. Kohrs." 2013 WL 5976064, at
*5.


       In his petition for review, Thomas claims first that he had filed a pretrial motion to
exclude this testimony that was never ruled upon. But no such motion is in the record on
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appeal, and we can find no evidence such a motion was filed. It was Thomas' burden to
establish an adequate record. See State v. McCullough, 293 Kan. 970, 999, 270 P.3d 1142
(2012) (party claiming an error occurred has the burden of designating a record that
affirmatively shows prejudicial error). Thomas further argues he contemporaneously
objected to the nursing notes, but he concedes his objection was not renewed or clarified
after Shannon provided the additional foundation requested.


       We agree with the panel's reasoning and hold Thomas failed to preserve this issue
for appeal under K.S.A. 60-404, which provides:


               "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 the objection." (Emphasis added.)


       In this case, Thomas initially asserted an objection on confrontation grounds; but
after the State responded, the colloquy focused on foundation and the district court
instructed the State to "try and flesh out that foundation before you proceed." After that,
Shannon gave a more detailed explanation about the files available to him and then read
from the nursing notes without further objection or a request for a continuing objection.
Shortly thereafter, Shannon's report was admitted into evidence without objection and its
contents detailed the same nursing notes at issue in this appeal.


       As an alternative argument, Thomas contends he should be allowed to raise his
constitutional claim for the first time on appeal. But this court has explained that
appellants asserting Confrontation Clause challenges may not circumvent K.S.A. 60-404,
otherwise the exceptions would devour the statutory rule. See State v. Williams, 299 Kan.
509, 548-50, 324 P.3d 1078 (2014) (appellate court will not overlook lack of an objection

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as required by K.S.A. 60-404 even if appellant argues appellate review is necessary to
serve the ends of justice or prevent the denial of defendant's right to a fair trial; citing
other cases). We again reject this backdoor approach.


                             INSTRUCTIONAL ERROR HARMLESS


       Thomas argues next that the reasonable doubt instruction erroneously informed the
jury it could find him to be a sexual predator without finding proof beyond a reasonable
doubt of each required element from the statute.


Standard of Review


       KSVPA proceedings are civil in nature. See In re Care & Treatment of Ontiberos,
295 Kan. 10, 19, 21, 287 P.3d 855 (2012). K.S.A. 2014 Supp. 60-251(d)(2) provides that
a court may consider an error in the instructions if it was not preserved "if the giving or
failure to give the instruction is clearly erroneous and the error affects substantial rights."
See also K.S.A. 2014 Supp. 60-261 (harmless error). In Thomas' case, it is agreed the
instruction challenge was not preserved, so the clearly erroneous standard applies.


       An appellate court uses a two-step process to determine whether a challenged jury
instruction is clearly erroneous. First, the court determines if there was error by
considering whether the instruction was legally and factually appropriate, employing an
unlimited review of the entire record. If the court finds error, it must assess whether it is
firmly convinced the jury would have reached a different verdict had the instruction error
not occurred. The party claiming error has the burden to prove the degree of prejudice
necessary for reversal. See State v. Smyser, 297 Kan. 199, 204, 299 P.3d 309 (2013).




                                               7
Discussion


       This issue concerns the KSVPA's standard of proof as established by K.S.A. 2014
Supp. 59-29a07(a), which requires that "[t]he court or jury shall determine whether,
beyond a reasonable doubt, the person is a sexually violent predator." Drawing from that
statute, our pattern instructions recommend giving the following burden of proof
instruction in sexually violent predator proceedings:


               "The State has the burden to prove its claim in this proceeding. The test you must
       use is this: If you have a reasonable doubt as to the truth of any of the claims made by
       the State, you must find for the respondent. If you have no reasonable doubt as to the
       truth of any of the claims made by the State, you should find for the State." (Emphasis
       added.) PIK Civ. 4th 130.22.


       In Thomas' case, the State proposed a modified instruction that became Jury
Instruction No. 4. And in the process of drafting that instruction, the State omitted the
above italicized words "any of" and included a few other minor phrasing differences not
important here. The district court accepted the State's proposed instruction without
comment, and Thomas did not object.


       Jury Instruction No. 4 was modified to state:


               "The State has the burden to prove its claim in this proceeding. The test you must
       use is this: If you have reasonable doubt as to the truth of the claims required to be
       proved by the State, you must find for the Respondent. If you have no reasonable doubt
       as to the truth of any of the claims required to be proved by the State, you should find for
       the State." (Emphasis added.)




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       After Jury Instruction No. 4, the district court gave the following separate
instruction:


               "The State alleges the respondent is a sexually violent predator. The respondent
       denies the allegation.


               "To establish this charge, each of the following claims must be proved:


               "1. That the respondent has been convicted of attempted rape, a sexually
               violent offense;


               "2. That the respondent suffers from a mental abnormality or personality
               disorder which makes the respondent likely to engage in repeat acts of
               sexual violence; and


               "3. That the respondent's mental abnormality or personality disorder
               makes it seriously difficult for him to control his dangerous behavior."
               (Emphasis added.)


       Although Thomas did not object at trial to giving this instruction, he argues now
on appeal that the phrase "if you have reasonable doubt as to the truth of the claims
required to be proved by the State" conveyed to the jury that it could not find in his favor
unless the jury harbored a reasonable doubt as to all the elements of the State's case. He
contends the word "claims" is plural, therefore the "reasonable doubt" must relate to all
the State's claims. He further maintains the phrase requiring the jury to find for the State
if it had "no reasonable doubt as to the truth of any of the claims required to be proved"
misstated the State's burden of proof and permitted a finding for the State if the jury
believed the State had proved just one element of its case beyond a reasonable doubt.




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       It is not difficult to conclude that Jury Instruction No. 4 as modified by the State
unnecessarily injected some confusion into the jury's deliberative process as the Court of
Appeals panel noted. See In re Care & Treatment of Thomas, 2013 WL 5976064, at *7
(questioning significance of difference between the PIK language and the instruction
requiring verdict for defendant if jury had reasonable doubt as to the "truth of the claims"
the State was required to prove). Variance from the PIK instruction is not dispositive, but
the omission of "any of" in this context was substantive enough to justify the assumption
of error for purposes of appellate review.


       The instruction at issue differs from the one challenged in State v. Herbel, 296
Kan. 1101, 299 P.3d 292 (2013), a case both the panel and the State cite as supporting the
appropriateness of Jury Instruction No. 4. In Herbel, we considered whether substituting
the word "any" in an instruction that deviated from the then-current version of PIK Crim.
3d 52.02 was legally appropriate. 296 Kan. at 1120 (substituting "any of the claims" for
PIK's "each of the claims"). The Herbel court held that while "each" was preferable, use
of "any" in that context was not an incorrect statement of law for three reasons. First, the
"any/any" instruction was identical to the previous version of PIK Crim. 3d 52.02, which
had been approved repeatedly in our caselaw. 296 Kan. at 1124. Second, the word "any"
was used consistently, thereby precluding the adverse meaning feared by defendant,
which would require the court to focus on the word's use in isolation while ignoring the
context in which it was used. 296 Kan. at 1123 (citing State v. Beck, 32 Kan. App. 2d
784, 787, 88 P.3d 1233, rev. denied 278 Kan. 847 [2004]). Third, there were separate
instructions mitigating any confusion because they itemized the elements of the crimes
and recited that the State must prove "each" such element to establish those charges.
Herbel, 296 Kan. at 1123 (citing Beck, 32 Kan. App. 2d at 787-88).


       Two of the Herbel rationales do not exist for Jury Instruction No. 4 because the
language used lacks the same pedigree of prior caselaw approval and removal of the
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phrase "any of" from the first sentence deprives the instruction of the consistent usage the
Herbel court relied upon. The instruction should have clarified that the State was required
to prove each element of its case that Thomas was a sexually violent predator. That said,
we also recognize Jury Instruction No. 4 is not as blatantly erroneous as the instruction in
Miller v. State, 298 Kan. 921, 935-38, 318 P.3d 155 (2014), which cut off entirely the
remedial effect of the elements instruction—the third Herbel rationale. See Miller, 298
Kan. at 937 (noting instruction literally misstated burden of proof, so no other instruction
could have cured the error). In Miller, the instructional error corrupted the entire verdict
because application of the instruction plainly misstated the State's burden, so a structural
error analysis was applied. 298 Kan. at 938. But we do not have an instructional error
comparable to Miller in Thomas' case.


       We consider then under K.S.A. 2014 Supp. 60-251(d)(2) whether there was clear
error, i.e., whether we are firmly convinced the jury would have reached a different
verdict had the instruction error not occurred. We hold that clear error is not shown
because the elements instruction mitigated any ambiguity in the reasonable doubt
instruction; counsel's arguments further confirmed the State was required to prove each
element beyond a reasonable doubt; and the evidence as to the issues in dispute was both
uncontroverted and overwhelmingly in the State's favor. See State v. Cruz, 297 Kan.
1048, 1069, 307 P.3d 199 (2013) (making clear error determination by reviewing impact
of erroneous instruction "'in light of the entire record and additional considerations'").


       We agree with the panel that "the State properly recognized its three-part burden
of proof and accurately conveyed it to the jury." In re Care & Treatment of Thomas, 2013
WL 5976064, at *8. In closing arguments, the State explained the elements it had to
prove after noting the stipulation that Thomas had been convicted of a sexually violent
offense. It outlined the State's expert medical opinion evidence demonstrating that
Thomas suffered from a mental abnormality or personality disorder and argued also that
                                              11
Thomas' counsel had essentially conceded that point as well. Then, the State's counsel
said, "[S]o let's talk about why we are here," noting the jury needed "to determine the last
two parts of [the elements]. Is he likely to re-offend and does he have a serious difficulty
controlling himself." And the State addressed the evidence proving those elements.


       Similarly, Thomas' counsel explained during closing that "[w]hat the State needs
to do is prove to you beyond a reasonable doubt that [it] met the three elements of this
offense." (Emphasis added.) Counsel then conceded the first element, saying, "We never
made any representation that Mr. Thomas didn't have some very serious convictions in
his background, and it became obvious during the opening comments of the State that
that was, in fact, true." Defense counsel further conceded, "I will agree that Mr. Thomas'
behavior indicates he has a lot of problems conforming to norms, obeying rules, he is
mildly mentally retarded, is on psychotropic medicines that would drop a horse, and is
schizophrenic." As to the remaining element of proof, counsel then staked out his
argument that "there wasn't any evidence put before you today that Mr. Thomas . . . has
any type of predatory sexual behavior." Any chance for ambiguity arising from Jury
Instruction No. 4 on reasonable doubt was resolved by the specific explanations provided
by both counsel in closing arguments, which clarified and reinforced what the jury's task
was in this case.


       Finally, the parties' stipulation and the uncontroverted testimony of Drs. Kohrs and
Shannon supplied a substantial case in the State's favor under the KSVPA. See K.S.A.
2014 Supp. 59-29a02(a) (defining "[s]exually violent predator"). Specifically, the parties
stipulated Thomas was previously convicted of a sexually violent offense. Both
psychologists diagnosed Thomas with paranoid schizophrenia and antisocial personality
disorder, borderline intellectual functioning, and substance abuse. And Kohrs and
Shannon both administered actuarial risk assessments that indicated Thomas posed a high
risk of sexual recidivism. Kohrs testified that Thomas would engage in sexually violent
                                             12
acts in the future and would not be able to control his behavior outside a structured
environment. Likewise Shannon testified that Thomas' mental abnormalities and
personality disorder (cognitive difficulties, schizophrenia, and voyeurism) impaired his
ability to control dangerous behavior to a degree that posed a menace to others' health
and safety.


       For these reasons, this court is not firmly convinced the jury would have reached a
different verdict had the deviation from the pattern instruction not occurred.


       Affirmed.




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