133 Wash. App. 289 | Wash. Ct. App. | 2006
¶1 Timothy Kelley was committed as a sexually violent predator. Although he was released on parole briefly in 1982, he was finishing his 20-year sentence for rape when the State filed its petition to commit Kelley. He appeals his commitment, arguing that the State was required to plead and prove a recent overt act and the evidence was insufficient to support his commitment. We affirm because Kelley was incarcerated for a sexually violent offense at the time the petition was filed and there was sufficient evidence to commit him.
I
¶2 Timothy Kelley admits to raping or molesting 10 children and more than 50 adult women. He was convicted of raping a 12-year-old girl in 1972, and in 1980 he was convicted of statutory first degree rape of a 9-year-old girl. For that offense, he was sentenced to 20 years in prison. Under the sentencing scheme in effect at the time, he received a suspended sentence and was sent to a sexual psychopathy program at Western State Hospital.
¶3 After two years at Western State, he was placed on outpatient status and was allowed to leave the facility for short periods of time. During one of these outings, he assaulted his girl friend, was found possessing a bayonet,
¶4 While incarcerated, Kelley was diagnosed with a number of mood disorders and was rated as having moderate to high deviant sexual arousal, including pedophilic arousal. He participated off and on in a sex offender treatment program that he eventually completed after he started taking an antipsychotic medication. A psychologist’s assessment of Kelley just prior to his release date concluded that Kelley would need “significant ongoing treatment and intervention” to prevent reoffense if he were released into the community.
f 5 Prior to Kelley’s release, the State filed a petition to have him committed as a sexually violent predator. After a full trial with extensive expert testimony, the jury found that Kelley should be committed.
II
¶6 To civilly commit a person under Washington’s sexually violent predator act,
¶7 If the person has been released from custody and is living in the community at the time the petition is filed, the State must also prove a “recent overt act” to
Recent Overt Act
¶8 Kelley argues that the State must prove a recent overt act because he was briefly released from the Western State sexual psychopathy program prior to the revocation of his suspended sentence in 1983. He cites In re Detention of Albrecht,
¶9 Kelley’s suspended sentence prior to a lengthy incarceration for rape is distinguishable from the community placement releases in Albrecht, Davis, and Broten. Release from Western State after his initial treatment was not
¶10 Proof of a recent overt act under these circumstances is not required. “Periods of temporary release after arrest and prior to extensive confinement do not modify the statute’s unambiguous directive that the State need not prove a recent overt act when the subject of a sexually violent predator petition is incarcerated on the day the petition is filed.”
¶11 Kelley’s 20-year confinement was not a penalty for choking his girl friend or possessing a bayonet. It was for first degree rape, a sexually violent offense. That offense was proved beyond a reasonable doubt, so due process is satisfied. Kelley’s due process rights were not violated because the State was not required to plead and prove a recent overt act.
f 12 When this court reviews the sufficiency of the evidence in sexually violent predator commitment proceedings, the evidence when viewed in the light most favorable to the State must be sufficient to allow a rational trier of fact to conclude that the person has serious difficulty controlling behavior and fits the criteria of a sexually violent predator.
“(1) That the respondent has been convicted of or charged with a crime of sexual violence; and
“(2) That the respondent suffers from a mental abnormality or personality disorder; and
“(3) That such mental abnormality or personality disorder makes the respondent likely to engage in predatory acts of sexual violence if not confined in a secure facility.”[20 ]
The first two elements are not disputed. Kelley was convicted of crimes of sexual violence, and he suffers from both a mental abnormality and a personality disorder. Although the defense expert psychiatrist, Dr. O’Shaugnessy, disagreed that Kelley suffers from pedophilia, he did diagnose Kelley with paraphilia, described by O’Shaugnessy as a “deviant interest in sexual aggression,” as well as antisocial personality disorder.
¶13 Ample evidence was presented by the State to support the conclusion that Kelley had serious difficulty controlling his sexually violent behavior and was likely to engage in acts of sexual violence if not confined to a secure
f 14 Dr. Tucker, the State’s expert psychiatrist, also concluded that Kelley was likely to reoffend in a sexually violent manner. He diagnosed Kelley with pedophilia, paraphilia,
f 15 Kelley challenged these opinions by questioning the accuracy and validity of certain actuarials and by presenting Dr. O’Shaugnessy, who concluded that Kelley did not meet the threshold of “more likely than not” to commit a sexually violent offense. It is notable, however, that Dr. O’Shaugnessy conceded not only the reliability of two actuarials that predicted Kelley’s high risk to recidivate but admitted that actuarials can underestimate the risk of
¶16 Affirmed.
Appelwick, C.J., and Dwyer, J., concur.
Review denied at 159 Wn.2d 1019 (2007).
Ch. 71.09 RCW.
RCW 71.09.060(1).
RCW 71.09.020(16).
RCW 71.09.060(1); In re Pers. Restraint of Young, 122 Wn.2d 1, 41-42, 857 P.2d 989 (1993).
RCW 71.09.020(10).
RCW 71.09.060(1).
See In re Det. of Albrecht, 147 Wn.2d 1, 51 P.3d 73 (2002).
147 Wn.2d 1, 51 P.3d 73 (2002).
109 Wn. App. 734, 37 P.3d 325 (2002), review denied, 150 Wn.2d 1002 (2003).
115 Wn. App. 252, 62 P.3d 514, review denied, 150 Wn.2d 1010 (2003).
Davis, 109 Wn. App. at 744-45.
RCW 9.95.0001(5).
RCW 71.09.020(15).
In re Det. of Henrickson, 140 Wn.2d 686, 693, 2 P.3d 473 (2000). Notably, the “extensive” confinement referred to in Henrickson is 32 months. Henrickson, 140 Wn.2d at 693.
Young, 122 Wn.2d at 41.
RCW 71.09.020 does not specifically define “recent,” but Webster’s defines “recent” as “of or belonging to the present period or the very near past.” Webster’s Third New International Dictionary 1894 (1993).
In re Det. of Thorell, 149 Wn.2d 724, 744-45, 72 P.3d 708 (2003).
Thorell, 149 Wn.2d at 738.
Thorell, 149 Wn.2d at 736.
Thorell, 149 Wn.2d at 742 (quoting Clerk’s Papers at 1727).
“Paraphilia” is a general term encompassing a number of types of deviant sexual fantasies, urges, and behaviors. Kelley’s paraphilia specifically centered around rape.