109 Wash. App. 734 | Wash. Ct. App. | 2002
— Dale Davis appeals from a superior court order committing him indefinitely as a sexually violent predator under chapter 71.09 RCW. He maintains the trial court erred by failing to require the State to plead and prove he committed a recent overt act. He also argues that the jury instructions used at his trial violated his due process rights because they failed to require the State to prove that he suffers from a mental abnormality or personality disorder to such a degree that he cannot control his sexual acts.
We conclude that if read literally, the applicable statutory provisions do not require the State to plead and prove a recent overt act because Davis was in “total confinement” at the time the commitment petition was filed.
FACTS
Dale Davis has a history of sexually abusing young children. He has been convicted of two “sexually violent offenses” under RCW 71.09.020(11), the most recent of which was a conviction for first degree child molestation in 1992.
While Davis was in prison for violating the terms of his community placement, the State filed a petition alleging that Davis is a sexually violent predator and requesting that he be involuntarily committed under chapter 71.09 RCW. In its petition, the State alleged it was not required to plead or prove Davis committed a recent overt act. The State pleaded in the alternative that the behavior that caused Davis’ violation of his community placement was a “recent overt act.” After a probable cause hearing, the trial court concluded that the “State [was] not required to plead or prove [Davis] committed a recent overt act” because he “was incarcerated serving a sentence for his most recent sexually violent offense at the time the State filed the petition.” The court allowed the State to file an amended
After a trial, the jury found Davis was a sexually violent predator. He was civilly committed to the Special Commitment Center in Steilacoom under RCW 71.09.060. On appeal, he argues the trial court erred by failing to require the State to plead and prove he committed a recent overt act. He also argues he was deprived of due process of law because the jury instructions did not require the State to prove he suffers from a mental abnormality or personality disorder to such a degree that he cannot control his sexual acts.
DISCUSSION
I. Recent Overt Act
Washington courts have repeatedly addressed the issue of whether, and under what circumstances, the State should be required to allege and prove that an individual has committed a “recent overt act” before the individual is civilly committed as a sexually violent predator under chapter 71.09 RCW.
The statute now provides that, for a person who “is about to be released from total confinement” and “who at any time previously has been convicted of a sexually violent offense,” the State’s petition need only allege that the person is a “sexually violent predator.”
In re Detention of Henrickson
In In re Detention of Henrickson,
Henrickson argued that because he had been released into the community for three years before his incarceration for the sexually violent offense, the State was required to allege and prove a recent overt act in the commitment proceedings. The Supreme Court rejected his argument, stating that because Henrickson’s incarceration stemmed from a conviction that “would certainly qualify as either a sexually violent offense or a recent overt act,” neither due process nor chapter 71.09 RCW required the State “to prove a further overt act occurred between arrest and release from incarceration.”
In re Detention of Albrecht
In In re Detention of Albrecht,
The Albrecht court concluded that Henrickson was not controlling because at the time the State filed the sexual predator petition, the reason Albrecht was incarcerated was not “because he was convicted by proof beyond a reasonable doubt of a crime that qualified as a sexually violent offense or a recent overt act.”
In resolving this case, the analysis set forth in Henrickson requires us to consider whether proof of a recent overt act is required by chapter 71.09 RCW and, if not, whether it is required by the due process clause.
Requirements of Chapter 71.09 RCW
When interpreting a statute, our objective is to give effect to the Legislature’s intent.
As stated above, when an individual is (1) “about to be released from total confinement” and (2) has “been convicted of a sexually violent offense,” the statute does not require the State to allege that the individual committed a recent overt act.
Requirements of Due Process
Both the Federal and Washington Constitutions provide that no person may be deprived of life, liberty, or property without due process of law.
In Henrickson, the court narrowed Young by holding that “[w]hen, on the day a sexually violent predator petition is filed, an individual is incarcerated for a sexually violent offense, RCW 71.09.020(6), or for an act that would itself qualify as a recent overt act, RCW 71.09.020(5), due process does not require the State to prove a further overt act
In State v. Prado, Division Three of this court held that, for double jeopardy purposes, “modifications of sentences due to violations of the conditions of community supervision should be deemed punishment for the original crime.”
Equating incarceration for a community placement violation with incarceration for the underlying offense in this context raises serious due process concerns that were not present in Prado. First, the burden of proving a community placement violation is only by a preponderance of the evidence. To commit a person under chapter 71.09 RCW, the statute requires proof beyond a reasonable doubt.
Second, a community placement violation may well involve conduct that has nothing to do with a sexually violent offense or a recent overt act.
To comport with due process, the State’s statutory obligation to plead and prove a recent overt act beyond a reasonable doubt should not turn on whether the individual is found, by only a preponderance of the evidence, to have violated community placement terms which may be vague or relatively insignificant. If incarceration for a community
Finally, we must consider whether the act for which Davis was incarcerated when the petition was filed constitutes a “recent overt act.” At the time of Davis’ commitment trial, a “recent overt act” was defined as “any act that has either caused harm of a sexually violent nature or creates a reasonable apprehension of such harm.”
The State argues that his violation of the community placement term meets the statutory definition of a recent overt act. But the State’s description of the incident is based solely on the Certification for Determination of Probable Cause filed by the State in support of its probable cause motion in the sexual predator proceeding.
Having concluded that Davis was not incarcerated for either a sexually violent offense or an act that would have qualified as a recent overt act at the time the State’s petition was filed, Henrickson requires the State to plead and prove Davis committed a recent overt act at his commitment trial. Accordingly, we reverse and remand this case for a new trial. On remand, the State must prove Davis committed a recent overt act beyond a reasonable doubt.
Davis also argues that the United States Supreme Court’s decision in Kansas v. Hendricks
The precommitment requirement of a “mental abnormality” or “personality disorder” is consistent with the requirements of these other statutes that we have upheld in that it narrows the class of persons eligible for confinement to those who are unable to control their dangerousness.[54 ]
Relying on this language, Davis argues that the jury instructions should have stated that the State was required to show he is unable to control his sexual acts. We have previously considered and rejected this argument.
Reversed and remanded for further proceedings.
Webster and Becker, JJ., concur.
See RCW 71.09.030(1).
See In re Det. of Henrickson, 140 Wn.2d 686, 689, 2 P.3d 473 (2000).
Davis was also convicted of first degree statutory rape in 1987.
At the time of Davis’ commitment trial, a “recent overt act” was defined as “any act that has either caused harm of a sexually violent nature or creates a reasonable apprehension of such harm.” Former RCW 71.09.020(5) (1995).
122 Wn.2d 1, 857 P.2d 989 (1993).
Id. at 41.
Id.
id.
RCW 71.09.030(1).
RCW 71.09.030(5) (emphasis added).
RCW 71.09.060(1) (emphasis added).
140 Wn.2d 686, 2 P.3d 473 (2000).
Id. at 689.
Id.
Id. During the three-year period of release pending his appeal, Henrickson was required to participate in sexual deviancy treatment, was supervised by a Department of Corrections Officer, and could not travel anywhere without a chaperone. Id.
Id. at 690.
Id. at 696, 697. The Henrickson court similarly held the State was not required to plead or prove a recent overt act in its petition to commit Michael Halgren, who was released into the community for three months pending sentencing for his conviction for unlawful imprisonment involving a prostitute. See id. at 691, 697-98.
106 Wn. App. 163, 23 P.3d 1094, review granted, 145 Wn.2d 1001, 35 P.3d 381 (2001).
Id. at 166.
Id. at 167.
Id.
Id. at 172.
See id. at 174.
Id. at 174.
See id. Judge Brown dissented from the majority’s characterization, stating that “[a]t petition filing, Mr. Albrecht was incarcerated for a sexually violent offense in the literal and legal sense that he violated a release condition issued upon conviction for a sexually violent offense.” Id. at 176 (Brown, J., dissenting).
See Henrickson, 140 Wn.2d at 692-93.
See State v. Riles, 135 Wn.2d 326, 340, 957 P.2d 655 (1998).
Id.
See In re Det. of LaBelle, 107 Wn.2d 196, 205, 728 P.2d 138 (1986).
RCW 71.09.030(1).
Former RCW 9.94A.030(41) (1995).
“As long as the individual is in custody on the day the petition is filed, however, the statute does not require proof of a recent overt act. See RCW 71.09.030(5) (limiting recent overt act requirement to petitions filed against an individual who “has since been released from total confinement’).” Henrickson, 140 Wn.2d at 692-93.
RCW 71.09.030(1).
We cannot agree with the Albrecht majority’s conclusion that incarceration for a community placement violation does not constitute “total confinement” under RCW 71.09.030(1) because the statutory definition of that term clearly includes incarceration for whatever reason.
Young, 122 Wn.2d at 26 (citing U.S. Const, amends. V, XIV; Wash. Const, art. I, § 3).
Valley View Indus. Park v. City of Redmond, 107 Wn.2d 621, 636, 733 P.2d 182 (1987).
State v. Cater’s Motor Freight Sys., 27 Wn.2d 661, 667, 179 P.2d 496 (1947).
Young, 122 Wn.2d at 31.
Id. at 41.
Henrickson, 140 Wn.2d at 695.
86 Wn. App. 573, 578, 937 P.2d 636, review denied, 133 Wn.2d 1018 (1997).
See Albrecht, 106 Wn. App. at 173 (citing State v. Peterson, 69 Wn. App. 143, 146, 847 P.2d 538 (1993)).
Id.
See id.
Id. RCW 71.09.060 requires the State to “prove beyond a reasonable doubt that the person had committed a recent overt act” if the person is living in the community after release from custody on the day the petition is filed.
At the time of Davis’ commitment trial, a “recent overt act” was defined as “any act that has either caused harm of a sexually violent nature or creates a reasonable apprehension of such harm.” Former RCW 71.09.020(5) (1995).
Former RCW 71.09.020(5) (1995).
Henrickson, 140 Wn.2d at 697.
Because the unique facts of this case were not before the court in Henrickson, it is possible that the Henrickson court did not contemplate the burden of proof ramifications of its broad holding. However, this ambiguity is of no consequence here because here the State did not even prove by a preponderance of the evidence that Davis’ community placement violation constituted a recent overt act.
The State alleges that Davis met with a 15-year-old boy named “M.” three times and provided him with beer at their first meeting. The State claims that on their last meeting “Davis invited [M.] up to his apartment, ostensibly for coffee. In the apartment, Davis fondled [M.]’s leg and then put his hand down [MJ’s pants, fondling his penis.” Although these allegations, if proven, would likely constitute a recent overt act, there are no factual findings in the record establishing the truth of the State’s allegations.
Former RCW 71.09.020(5) (1995).
See RCW 71.09.060(1).
521 U.S. 346, 117 S. Ct. 2072, 138 L. Ed. 2d 501 (1997).
Id. at 358 (emphasis added).
See In re Det. of Strauss, 106 Wn. App. 1, 20 P.3d 1022 (2001); In re Det. of Gordon, 102 Wn. App. 912, 10 P.3d 500 (2000); In re Det. of Brooks, 94 Wn. App. 716, 973 P.2d 486, review granted, 138 Wn.2d 1021 (1999).
102 Wn. App. 912, 918, 10 P.3d 500 (2000).
Id. at 918.