Henrickson v. State , 140 Wash. 2d 686 ( 2000 )

Johnson, J.

The State seeks to commit both Donald Henrickson and Michael Halgren as sexually violent predators under chapter 71.09 RCW. This court has previously held that to commit an individual as a sexually violent predator, due process requires proof of a recent overt act “whenever an individual is not incarcerated at the time the petition is filed.” In re Personal Restraint of Young, 122 Wn.2d 1, 41, 857 P.2d 989 (1993). The Legislature codified this holding by amending the statute to require proof of a recent overt act when a person “has since been released from total confinement,” but not when a person “is about to be released from total confinement.” Laws of 1995, ch. 216, § 3; RCW 71.09.030.

We are now asked to decide whether chapter 71.09 RCW or due process requires proof of a recent overt act when an individual has, at some point, been previously released into the community but is incarcerated on the day a sexually violent predator petition is filed. We hold no proof of a recent overt act is constitutionally or statutorily required when, on the day the petition is filed, an individual is incarcerated for a sexually violent offense, RCW 71.09.020(6), or an act that by itself would have qualified as a recent overt act, RCW 71.09.020(5). We reverse the decision of the trial court in State v. Halgren, No. 95-1-06725-1 (King County Super. Ct. Apr. 1, 1996), and affirm the Court of Appeals in In re Detention of Henrickson, 92 Wn. App. 856, 965 P.2d 1126 (1998), although on alternate grounds.

FACTS

Donald Henrickson

Donald A. Henrickson has a long history of sexual assaults on young girls. He was arrested in 1973 for indecent liberties and statutory rape, and again for indecent liberties in 1977. In 1986, Henrickson pleaded guilty to statutory rape in the first degree of a four-year-old girl and was sentenced to 36 months in prison. He was released in 1989. In 1990, Henrickson abducted a six-year-old girl and showed her a pornographic picture; he was convicted of attempted kidnapping in the first degree and communication with a minor for immoral purposes.

The trial court imposed an exceptional sentence of 120 months for the 1990 conviction. Henrickson appealed. The trial court permitted Henrickson to remain free on bond on strict conditions of release during the pendency of his appeal. On appeal, in an unpublished opinion, the Court of Appeals affirmed Henrickson’s 1990 conviction but reversed his exceptional sentence. State v. Henrickson, No. 29166-1-1 (Wash. Ct. App. Apr. 19, 1993). Henrickson was resentenced to 50 months, with strict conditions of release imposed for one year following release.

During his three-year period of release for the 1990 conviction, Henrickson was required to participate in sexual deviancy treatment. He did not travel anywhere without a chaperone. For a large part of this time, a Department of Corrections officer also supervised Henrickson.

Following his resentencing in 1993 for the 1990 conviction, Henrickson was incarcerated in the Department of Corrections. His scheduled release date was August 30, 1996. On August 29, 1996, one day before his release date, the State filed a petition to have Henrickson committed to the custody of the Department of Social and Health Services as a sexually violent predator. Henrickson stipulated to the commitment, but reserved the right to appeal the trial court’s finding that the State need not prove a recent overt act because Henrickson was incarcerated on the day the petition was filed.

The Court of Appeals affirmed Henrickson’s commitment. In re Detention of Henrickson, 92 Wn. App. 856, 864, 965 P.2d 1126 (1998). The court held “[b]ecause Henrickson was under constant strict supervision after his arrest for the 1990 kidnapping, due process did not require the State to prove a more recent overt act as a manifestation of his dangerousness.” Henrickson, 92 Wn. App. at 864. The court tempered its holding, however, with the following analysis:

The fact that an individual is incarcerated on the day the [sexually violent predator] petition is filed is not, by itself, dis-positive. The more fundamental question is whether there is evidence of future dangerousness sufficient to overcome the individual’s liberty interest. The requirement for proof of a recent overt act as evidence of dangerousness is excused where the individual has been living under a degree of restraint, such as confinement, that minimizes the opportunity to reoffend. If the individual has lived in the community since the most recent offense without committing a further overt act, the trial court should consider the degree to which the period of nonincarceration offered an opportunity to reoffend.

Henrickson, 92 Wn. App. at 863 (emphasis added).

The State moved for discretionary review of the Court of Appeals decision. Henrickson cross-petitioned, on the recent overt act issue and other issues.¹ Review was granted solely on the recent overt act issue.

Michael Halgren

Michael Halgren has a history of sexually related offenses, including a 1989 conviction for first degree rape, a 1994 conviction for solicitation of a prostitute, and a 1996 conviction for unlawful imprisonment also involving a prostitute. After his conviction on the unlawful imprisonment charge, Halgren received a 60-month exceptional sentence, which was later reversed by this court. State v. Halgren, 137 Wn.2d 340, 352, 971 P.2d 512 (1999).²

Upon this court’s reversal of the exceptional sentence, the State anticipated Halgren would be released from confinement “at any time.” The State moved to commit Halgren as a sexually violent predator pursuant to chapter 71.09 RCW. Upon motion by the defense, the trial court dismissed the State’s petition, relying on the Court of Appeals decision in Henrickson, 92 Wn. App. 856. The court held because Halgren had been released into the community for three months pending sentencing on the unlawful imprisonment charge, Henrickson required the State’s petition allege a recent overt act by Halgren, which it did not. The State petitioned this court for direct review, which was granted. This court stayed the trial court’s order dismissing the State’s petition pending review.

ANALYSIS

Proof of a Recent Overt Act Under Chapter 71.09 RCW

The Washington sexually violent predator statute is premised on a finding of the present dangerousness of those subject to commitment. Under the statute, sexually violent predators must suffer from a “mental abnormality or personality disorder which makes the person likely to engage in predatory acts of sexual violence if not confined in a secure facility.” RCW 71.09.020(1) (emphasis added).

The statute’s definition of “mental abnormality” is tied directly to present dangerousness. “ ‘Mental abnormality’ means a congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to the commission of criminal sexual acts in a degree constituting such person a menace to the health and safety of others.” RCW 71.09.020(2) (emphasis added); see also Young, 122 Wn.2d at 32 (holding statute applies only to dangerous offenders); In re Personal Restraint of Paschke, 80 Wn. App. 439, 446, 909 P.2d 1328 (1996); Hubbart v. Superior Court, 19 Cal. 4th 1138, 1162, 969 P.2d 584, 599, 81 Cal. Rptr. 2d 492 (1999) (interpreting identical language in California sexually violent predator statute’s definition of mental abnormality to require showing that sexually violent predator is “dangerous at the time of commitment”). The State must prove beyond a reasonable doubt that the individual it seeks to commit is a sexually violent predator consistent with the above definitions. RCW 71.09.060(1).

In order to commit a nonincarcerated individual as a sexually violent predator, the State must also prove beyond a reasonable doubt that the individual has committed a recent overt act evidencing his or her status as a sexually violent predator. RCW 71.09.060(1). 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”); see also RCW 71.09-.020(3).

Here, neither Henrickson nor Halgren had been released from total confinement when their petitions were filed. The State filed its petition against Henrickson on August 29, 1996, one day before his scheduled release. At that time, he had been incarcerated for more than 32 months. A similar scenario occurred in Halgren’s case, except Halgren’s period of release was significantly shorter than Henrickson’s, and Halgren was in custody for more than 35 months after that brief period of release. Consequently, under the plain language of chapter 71.09 RCW, the State need not prove a recent overt act by either Henrickson or Halgren. 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. See, e.g., State v. Riles, 135 Wn.2d 326, 340, 957 P.2d 655 (1998) (“Absent ambiguity, a statute’s meaning must be derived from the wording of the statute itself without judicial construction or interpretation”) (citing Cherry v. Municipality of Metro. Seattle, 116 Wn.2d 794, 799, 808 P.2d 746 (1991)).

Proof of a Recent Overt Act Under the Due Process Clause

Respondents argue that even if the statutory recent overt act requirement applies only to those not confined at the time of the petition’s filing, the due process clause and our holding in Young mandate proof of a recent overt act when an individual has been released into the community prior to the filing of the petition. Respondents rely upon the Court of Appeals opinion in Henrickson, which interpreted Young to require proof of a recent overt act depending on the nature of the community release. The Henrickson court concluded if “the individual has lived in the community since the most recent offense without committing a further overt act, the trial court should consider the degree to which the period of nonincarceration offered an opportunity to reoffend.” Henrickson, 92 Wn. App. at 863. While we agree that an opportunity to reoffend should be a factor in the commitment determination, this does not mean proof of a recent overt act during that period of release is constitutionally required.

It is, of course, unquestioned that no person may be deprived of life, liberty, or property without due process of law. Young, 122 Wn.2d at 26 (citing U.S. Const. amends. V, XIV; Const. art. I, § 3). A person must be both mentally ill and dangerous to be civilly committed consistent with these constitutional guarantees. Young, 122 Wn.2d at 27 (citing Addington v. Texas, 441 U.S. 418, 99 S. Ct. 1804, 60 L. Ed. 2d 323 (1979)); see also Kansas v. Hendricks, 521 U.S. 346, 358, 117 S. Ct. 2072, 138 L. Ed. 2d 501 (1997) (citing Heller v. Doe, 509 U.S. 312, 314-15, 113 S. Ct. 2637, 125 L. Ed. 2d 257 (1993); Allen v. Illinois, 478 U.S. 364, 366, 106 S. Ct. 2988, 92 L. Ed. 2d 296 (1986)). Although chapter 71.09 RCW excuses the State from proof of a recent overt act when a petition is filed against an incarcerated individual, the commitment at issue must still satisfy due process. Young, 122 Wn.2d at 27.

In Young, we stated that due process requires proof of a recent overt act only when “an individual is not incarcerated at the time the petition is filed.” Young, 122 Wn.2d at 41 (emphasis added). It is true, as respondents point out, that the facts of the present cases were not before us in Young. There, petitioner Cunningham lived in the community for four and one-half months after his release from incarceration but before the State attempted to commit him. Young, 122 Wn.2d at 42. We found this time period sufficient to require the State to prove a recent overt act and reversed Cunningham’s commitment. Young, 122 Wn.2d at 42. Petitioner Young, on the other hand, for the purpose of the court’s analysis, was incarcerated from the date of his 1986 rape conviction until the State’s filing of a petition against him, one day before his scheduled release. Young, 122 Wn.2d at 13-14.³

Respondents in the present cases were released into the community after the commission of their most recent offenses. Despite this factual nuance, however, we find our analysis of petitioner Young’s case applicable here. When, 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 occurred between arrest and release from incarceration.

In many cases, sexually violent predators are incarcerated prior to commitment. For incarcerated individuals, a requirement of a recent overt act under the Statute would create a standard which would be impossible to meet. Other jurisdictions have rejected the precise argument made by petitioners because it creates an impossible condition for those currently incarcerated. We agree that “[d]ue process does not require that the absurd be done before a compelling state interest can be vindicated.” Indeed, in drafting the Statute, the Legislature expressly noted that the involuntary commitment statute, RCW 71.05, was an inadequate remedy because confinement prevented any overt act. We conclude that where the individual is currently incarcerated no evidence of a recent overt act is required.

Young, 122 Wn.2d at 41 (emphasis added) (citations omitted).

Here, although respondent Henrickson did spend approximately three years in the community under heavily supervised conditions of release, he was incarcerated from December 10, 1993 until August 30, 1996; the petition was filed against him one day before his release. Henrickson’s incarceration stemmed from convictions for attempted kidnapping in the first degree and communication with a minor for immoral purposes. These convictions would certainly qualify as either a sexually violent offense or a recent overt act. RCW 71.09.020(6)(c)-(d); RCW 71.09-.020(5). Likewise, respondent Halgren was released for three months pending sentencing, but was incarcerated for three years before the State filed a petition against him. His conviction, based on a charge of unlawful imprisonment, would also qualify as a sexually violent offense or a recent overt act. RCW 71.09.020(6)(c); RCW 71.09.020(5).

To follow the Court of Appeals approach in Henrickson would elevate Henrickson’s and Halgren’s periods of temporary release during the disposition of their criminal cases over the sexually related criminal acts that actually gave rise to their extensive periods of confinement. This would lead to absurd results because, in effect, any post-arrest supervised release for whatever reason would provide the opportunity to . circumvent the distinctions of the statute. “ ‘[D]ue process does not require that the absurd be done before a compelling state interest can be vindicated.’ ” Young, 122 Wn.2d at 41 (quoting People v. Martin, 107 Cal. App. 3d 714, 725, 165 Cal. Rptr. 773 (1980)).

The Court of Appeals has addressed facts similar to those now before us and has reached the same result. In re Detention of Aqui, 84 Wn. App. 88, 929 P.2d 436 (1996). There, a petition to commit Aqui as a sexually violent predator was filed while he was incarcerated. However, the trial court found chapter 71.09 RCW unconstitutional and ordered Aqui’s release. Aqui, 84 Wn. App. at 96. This court stayed the release order and later reversed the trial court. Aqui, 84 Wn. App. at 97. The end result was that Aqui was released into the community for three weeks, then returned to custody. Aqui argued “because he was released, the State had the same opportunity to prove a recent overt act as if he had been out of custody when the petition was filed and thus was required to do so.” Aqui, 84 Wn. App. at 96. The Court of Appeals disagreed, although it did not foreclose the validity of this argument in future cases:

We restrict our holding to the peculiar facts presented in this case. Thus, we reject the State’s argument that it was excused from proving a recent overt act solely because of the brevity of Aqui’s release. Due process requires the State to prove a recent overt act if a person is released to the community before the petition is filed. On these unique facts we need not reach the question of whether due process requires an overt act when the petition is filed before release but it is not acted upon in a timely manner such that a person does spend a significant amount of time released to the community.

Aqui, 84 Wn. App. at 97 (footnote omitted) (citing Young, 122 Wn.2d at 41).

To the extent Aqui suggests due process requires proof of a recent overt act when, at the time the petition is filed, an individual is incarcerated for a sexually violent offense or an act that would itself have qualified as a recent overt act, it is inconsistent with our holding in Young. This is not to say an individual’s activities during periods of community release may not be highly relevant to a determination of whether he or she meets the statutory definition of a sexually violent predator. See RCW 71.09.020(1). Indeed, the recency of the acts upon which the State bases its commitment petition may be a significant factor in determining whether the individual is presently dangerous as required by both the statute and due process. RCW 71.09.020(2); Young, 122 Wn.2d at 31-32. We simply hold that when, at the time the petition is filed, an individual is incarcerated for a sexually violent offense, or for an act that itself would have constituted a recent overt act, due process does not require the State to prove a further overt act occurred between arrest and release from incarceration.

CONCLUSION

Donald Henrickson and Michael Halgren were both incarcerated for crimes that would qualify under the sexually violent predator statute, chapter 71.09 RCW, as sexually violent offenses or, at the time they occurred, as recent overt acts. Neither due process nor the statute require the State to prove a further overt act occurred between arrest and release from incarceration for these crimes. The decision of the trial court in Halgren is reversed. The result reached by the. Court of Appeals in Henrickson is affirmed.

Guy, C.J., Smith, Madsen, Alexander, Talmadge, and Ireland, JJ., and Shields, J. Pro Tem., concur.

1 We note the State may not seek review of a decision in its favor merely because it disputes the reasoning of that decision. See City of Tacoma v. Taxpayers of Tacoma, 108 Wn.2d 679, 685, 743 P.2d 793 (1987); RAP 3.1. Nevertheless, because Henrickson cross-petitioned for review of the same issue, the matter is properly before this court. Taxpayers, 108 Wn.2d at 685. Even were this not the case, the same issues are properly before this court in Halgren’s present case. Our disposition of that case alone would have the exact same legal and factual consequences as our disposition of both cases.

2 The Halgren opinion contains the full factual background of the unlawful imprisonment case. Halgren, 137 Wn.2d at 342-45. We note that although unlawful imprisonment is considered a nonsexual offense under the Sentencing Reform Act of 1981, chapter 9.94A RCW, the same is not the case under the sexually violent predator statute, chapter 71.09 RCW. The statute specifically lists unlawful imprisonment as a crime that may qualify as a predicate “sexually violent offense.” RCW 71.09.020(6)(c). Furthermore, the offense need not have been determined at the time of conviction to be sexually motivated, so long as it is so proven at the time of commitment. RCW 71.09.020(6)(c).

3 The State, citing trial court records from Young’s 1986 rape conviction, suggests Young was free on conditions of release from the date of his arrest in February 1986 until his conviction in August 1986. This court may not take judicial notice of records from a different proceeding to establish the truth of the matters contained therein. See Swak v. Department of Labor & Indus., 40 Wn.2d 51, 54, 240 P.2d 560 (1952); 5 Karl B. Tegland, Washington Practice: Evidence § 46 (3d ed. 1989 & Supp. 1998-1999). Even if this court were inclined to take judicial notice, there is no indication this issue was ever raised before this court in Young.