In re Interest of K.W., alleged to be a dangerous sex offender. K.W., appellant, Mental Health Board of the Fourth Judicial District and State of Nebraska, Appellees.
Mental Health: Appeal and Error. The district court reviews
the determination of a mental health board de novo on the
Judgments: Convicted Sex Offender: Appeal and Error. In
reviewing a district court's judgment under the Sex
Offender Commitment Act, an appellate court will affirm
unless it finds, as a matter of law, that clear and
convincing evidence does not support the judgment.
Mental Health: Convicted Sex Offender: Words and Phrases.
Under the Sex Offender Commitment Act, a dangerous sex
offender is defined as a person who suffers from a mental
illness which makes him likely to engage in repeat acts of
sexual violence, who has been convicted of one or more sex
offenses, and who is substantially unable to control his
criminal behavior, or a person who has a personality disorder
which makes him likely to engage in repeat acts of sexual
violence, who has been convicted of two or more sex offenses,
and who is substantially unable to control his criminal
Convicted Sex Offender. Possession of sexually explicit
images of children does qualify as a sex offense for the Sex
Offender Commitment Act purposes.
Mental Health: Convicted Sex Offender: Proof. The State has
the burden of proving by clear and convincing evidence that
neither voluntary hospitalization nor other alternative
treatment less restrictive than inpatient treatment would
prevent a dangerous sex offender from harming himself or
Neb.App. 620] Appeal from the District Court for Douglas
County: Horacio J. Wheelock, Judge. Affirmed.
C. Riley, Douglas County Public Defender, and Ryan T. Locke
W. Wells, Deputy Douglas County Attorney, for appellees.
Riedmann and Bishop, Judges.
appeals from the order of the district court for Douglas
County, affirming the decision of the Mental Health Board of
the Fourth Judicial District (Board). The Board found K.W. to
be a dangerous sex offender under the Sex Offender Commitment
Act (SOCA), Neb. Rev. Stat. § 71-1201 et seq. (Reissue
2009), and ordered him to undergo inpatient treatment. On
appeal, K.W. argues that the district court erred in
affirming the Board's findings that he was a dangerous
sex offender and that inpatient treatment was the least
restrictive treatment alternative. We find no merit to
K.W.'s arguments on appeal, and we affirm.
Douglas County Attorney filed a petition with the Board,
alleging K.W. was a dangerous sex offender within the meaning
of SOCA. The petition was filed based on a psychological
evaluation conducted on K.W. by Dr. Alan Levinson, a clinical
psychologist employed by the Nebraska Department of
Correctional Services. The evaluation was conducted during
the period immediately preceding K.W.'s completion of a
sentence imposed by the Douglas County District Court for 10
counts of possession of child pornography. A hearing before
the Board was held in February 2016. Dr. Levinson testified
regarding a psychological evaluation [24 Neb.App. 621] of
K.W. he conducted in October 2015. In order to formulate his
opinions and diagnoses, Dr. Levinson reviewed K.W.'s
institutional file, mental health file, police reports, and
presentence investigation; interviewed K.W.; and utilized
actuarial diagnostic tools.
time of Dr. Levinson's evaluation, K.W. was serving 10
sentences for possession of child pornography. K.W. had been
sentenced to five concurrent terms of 20 months' to 5
years' imprisonment on counts I through V, and five
additional concurrent terms of 20 months' to 5 years'
imprisonment on counts VI through X. K.W.'s total
sentence was therefore 40 months' to 10 years'
imprisonment. According to court documents, K.W. sent an
image of child pornography via text message to a woman in
Ohio. The woman contacted the authorities who were able to
trace the telephone number to K.W. Police then searched
K.W.'s cellular phone and located over 100 additional
images of child pornography.
Levinson's report also stated that K.W. had been
convicted of "[w]indow peeping" on five different
occasions in the 1990's. K.W. described to Dr. Levinson
looking in windows at adolescent and adult females, as well
as adult males, in different sexual situations and
masturbating to what he saw.
Levinson also testified regarding K.W.'s treatment
history. Dr. Levinson testified that the Department of
Correctional Services offers three levels of sex offender
treatment. Following an evaluation, K.W. was placed into the
highest level of treatment, a 2- to 3-year program for higher
risk sex offenders referred to as the inpatient "Healthy
Lives" sex offender program (iHeLP). K.W. started
participating in iHeLP in February 2012, but was put on
probation in the program in August 2014 due to a lack of
progress. A report from August 2014 indicated that K.W. did
not adequately manage risk factors, had volatile
relationships with treatment staff and peers, and
inconsistently demonstrated awareness of his mental health
issues. Additionally, K.W. did not cooperate with
supervision, including blaming his therapist for a lack of
[24 Neb.App. 622] perceived personal success in the program,
rather than accepting constructive feedback or taking
responsibility for his behavior. The August 2014 report
stated that K.W. regressed into a stage of'"late
contemplation'" from a stage
of'"preparation"' due to not following
through on his treatment. The report concluded that K.W. had
'"minimal personal conviction toward working on
September 2014, K.W. was ultimately terminated from the iHeLP
program without completing it. The reasons for K.W.'s
termination were "'treatment-interfering behaviors,
interfering in the ...