State Of Washington v. B.b. ( 2017 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON, ) No. 76733-0-1
)
Respondent, )
)
v. )
)
BOB., d.o.b. 06/17/02, ) UNPUBLISHED OPINION
)
Appellant. ) FILED: July 31, 2017
)
VERELLEN, C.J. — B.B.1 pleaded guilty to one count of first degree rape of a child
and one count of first degree child molestation. She received a special sex offender
disposition alternative (SSODA) disposition. The State filed a motion to revoke, alleging
B.B. failed to comply with the conditions of the SSODA.
The trial court erroneously admitted hearsay evidence at the SSODA revocation
hearing. Because the trial court did not rely on the hearsay testimony in reaching its
decision to revoke the SSODA, the error was harmless.
B.B. stipulated to sexual contacts which violated the conditions of the SSODA.
Because RCW 13.40.162(8)(a) authorizes the trial court to revoke a SSODA if the
offender violates any condition of the disposition, the trial court did not abuse its
discretion.
We affirm.
1 This court entered an order that the juvenile appellant will be referred to by her
in
No. 76733-0-1-2
FACTS
On June 10, 2015, B.B. pleaded guilty to the single count of first degree rape of a
child and one count of first degree child molestation. The parties agreed to a SSODA
disposition. A Thurston County Superior Court commissioner imposed a range of 15 to
36 weeks, suspended on the condition that B.B. comply with the conditions of the
SSODA.
Six months later, the State moved to revoke the SSODA based on allegations
that B.B. had violated the condition precluding any sexual contact. B.B. stipulated that
she had had multiple sexual contacts with two siblings. Juvenile probation counselor
Pete Feliciano testified at the revocation hearing that B.B.'s older sister, with whom B.B.
had lived for a few weeks, believed B.B. had been the aggressor in the sexual contacts
with two other siblings. The commissioner overruled B.B.'s hearsay objection,
explaining, "It is a dispositional hearing. The objection is overruled, but it does go to
weight, and the court will give the hearsay comment the weight that it is."2
The commissioner revoked the SSODA on the grounds that B.B. had violated the
conditions. In response to B.B.'s argument that she had not consented to at least some
of the contacts with one sister, the commissioner pointed out that there was substantial
evidence of consensual sexual contacts:
So what we are here for Is a revocation, because when you did
your polygraph in November, it came out that you had been having sex
multiple times with both of your sisters throughout October and November.
[Defense counsel] makes a huge deal about whether you're actually a
victim or a perpetrator, and there's actually testimony that that was also
consensual contact It doesn't matter. The requirement was no sex, no
sexual relations. So whether you were a victim, to me, that does matter if
it was forced on you. But what I'm hearing is that it was consensual, and
2 Report of Proceedings (RP) (Jan. 25, 2016) at 13-14.
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this was something that you and your sisters just did, and that's not right,
and that's not appropriate for a sex offender disposition alternative.
So I do have to, under those circumstances, with multiple incidents
of sexual relations, have to revoke the disposition alternative.131
The commissioner imposed 36 weeks on each count, for a total of 72 weeks in Juvenile
Rehabilitation Administration.
A superior court judge heard B.B.'s motion to revise on April 22, 2016. The court
affirmed the commissioners revocation.
B.B. appeals revocation of the SSODA.
ANALYSIS
B.B. contends the trial court violated her due process rights by admitting
inadmissible hearsay.
Hearsay is an out-of-court statement offered in evidence to prove the truth of the
matter asserted!' The revocation of a suspended sentence is not a criminal proceeding,
and the offender facing revocation has only minimal due process rights."5 The due
process rights in this setting do not extend from the Sixth Amendment but from the due
process clause of the Fourteenth Amendment, These rights include the right to
confront and cross-examine witnesses, unless there is good cause for not allowing
confrontation!
3 Id. at 70-71 (emphasis added).
4 ER 801(c).
5 State v. Dahl, 139 Wn.2d 678, 683, 990 P.2d 396 (1999).
6 State v. Abd-Rahmaan, 154 Wn.2d 280, 288, 111 P.3d 1157 (2005).
7 Dahl 139 Wn.2d at 683.
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No. 76733-0-1-4
The State concedes the hearsay should not have been admitted, but contends
the error was harmless. We agree.
"Violations of a defendant's minimal due process right to confrontation are
subject to harmless error analysis."8 Our concern in revocation proceedings is "the
possibility that the trial court will rely on unverified evidence in revoking a suspended
sentence."8 The United States Supreme Court has required that finding a parole
violation be "'based on verified facts and that the [court's] exercise of discretion will be
informed by an accurate knowledge of the parolee's behavior."10 "'Unreliable hearsay
may not be the sole basis for revocation.'"11
B.B. stipulated to her violation of SSODA conditions. She argues that the trial
court "gave great weight" to hearsay testimony and based its revocation on B.B. being
the initiator of the sexual contacts," stating "[a]bsent the admitted statement ... it is
much more reasonable to conclude that 8.8. was the victim of her older sister's sexual
misconduct."12
But the trial court did not base its revocation on B.B. initiating the sexual
contacts. The court explained, "[T]here's actually testimony that that was also
consensual contact. . .. [It] does matter if it was forced on you. But what I'm hearing is
8Id. at 688; see State v. Powell, 126 Wn.2d 244, 267, 893 P.2d 615 (1995)
("Reversal is merited when an error, such as Improperly admitted hearsay evidence,
deprives the defendant of the right to confrontation, unless the error is harmless.").
9 Dahl 139 Wn.2d at 688.
10Id. (quoting Morrissey v. Brewer, 408 U.S. 471, 484, 92S. Ct. 2593, 33 L. Ed.
2d 484 (1972)).
11 it (quoting State v. Nelson, 103 Wn.2d 760, 765, 697 P.2d 579 (1985))
(emphasis added).
12 Id. at 12-13.
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No. 76733-0-1-5
that it was consensual."13 The commissioner gave no indication that B.B. was the
aggressor.
There is no showing that the trial court relied on the erroneously admitted
hearsay in its decision to revoke the SSODA. We conclude the commissioner
erroneously admitted the hearsay, but the error was harmless because it was not the
basis for revocation.
Next, B.B. argues the trial court abused its discretion when it revoked the
SSODA. "Revocation of a suspended sentence due to violations rests within the
discretion of the trial court and will not be disturbed absent an abuse of discretion."14 A
court abuses its discretion if its decision is "'manifestly unreasonable or exercised on
untenable grounds, or for untenable reasons.'"15
B.B. concedes she violated the SSODA conditions, but argues the trial court
abused its discretion by failing to consider the context of the violations. Specifically, she
points to the lack of monitoring, delayed State funding for treatment, and other difficult
circumstances of her placement. B.B. offers no compelling authority for her proposition
that the court was required to deny the motion to revoke.
RCW 13.40.162(8)(a) authorized the court to revoke the SSODA if it found B.B.
failed to make satisfactory progress in treatment or if she violated any condition of the
SSODA. B.B. stipulated to violating the SSODA by engaging in sexual contacts with
13 RP (Jan. 25, 2016) at 70-71.
14 State v. McCormick, 166 Wn.2d 689, 705-06, 213 P.3d 32 (2009).
Id. at 706 (quoting State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d
15775 (1971)).
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her sisters on multiple occasions. Regardless of the difficult circumstances, the trial
court acted within its discretion when it revoked the SSODA.16
We conclude the trial court did not abuse its discretion.
Finally, B.B. challenges the court's findings of fact 14 and 15, but does not
provide any argument in her brief. "A party that offers no argument in its opening brief
on a claimed assignment of error waives the assignment."17
Affirmed.
WE CONCUR:
iSttec j .
"We also note that Washington courts have recognized a court may revoke a
SSODA or SSOSA even if a defendant's violations are not willful. See State v. T.E.C.,
122 Wn. App. 9, 30-31, 92 P.3d 263 (2004) ("The trial court was entitled to grant T.C. a
SSODA on the condition that a suitable placement be found within a reasonable amount
of time. Finally, the trial court did not abuse its discretion when it revoked T.C.'s
SSODA when it determined that a suitable placement, a condition for the SSODA, had
not been found."); McCormick, 166 Wn.2d at 706 (holding the state and federal due
process clauses do not require the State to prove the defendant willfully violated the
condition of his suspended sentence because the strong governmental interest in
protecting the public outweighs the defendant's diminished interest.); State v. Miller, 180
Wn. App. 413, 424, 325 P.3d 230 (2014) ("Because Miller was not receiving sexual
deviancy treatment for which he had to pay and there were no adequate alternative
measures, the trial court did not abuse its discretion when it revoked Millers SSOSA.").
11 Brown v. Vail, 169 Wn.2d 318, 336 n.11, 237 P.3d 263 (2010); RAP 10.3(4),
(6).
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