In Re The Detention Of: Brian Taylor-rose ( 2019 )

Filed
Washington State
Court of Appeals
Division Two
July 16, 2019
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In re the Detention of: No. 51246-7-II
BRIAN TAYLOR-ROSE. UNPUBLISHED OPINION
SUTTON, J. — We granted Brian Taylor-Rose’s motion for discretionary review of the
superior court’s denial of his petition for an unconditional release trial. Taylor-Rose argues that
he presented prima facie evidence that he no longer meets the criteria for civil commitment because
he has “so changed” through sex offender-specific treatment and that the court erred by denying
his petition. We agree. We reverse and remand with instructions to schedule Taylor-Rose’s case
for trial.
FACTS
After a jury trial, Taylor-Rose was committed to the Special Commitment Center (SCC)1
as a sexually violent predator on August 5, 2015. Taylor-Rose’s criminal history included two sex
offenses involving minors. The first offense occurred when Taylor-Rose was 19. He touched a
13-year old boy’s genitals and buttocks over the boy’s clothes while the boy slept. Taylor-Rose
pleaded guilty to second degree child molestation. The second offense occurred when Taylor-
Rose was 30 years old. Taylor-Rose pleaded guilty to third degree child molestation following
allegations that he had touched a seven-year old boy’s penis.
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The Department of Social and Health Services operates SCC programs.
No. 51246-7
As part of Taylor-Rose’s 2016 annual review, Dr. Robert Saari reviewed Taylor-Rose’s
treatment participation and behavior at the SCC. Dr. Saari noted that Taylor-Rose consistently
participated in sex offender treatment, met individually for case management, and addressed
therapeutic issues in case management sessions. Dr. Saari reported that Taylor-Rose’s residential
functioning was good, and that Taylor-Rose typically made good use of case management sessions
by openly addressing issues and therapeutically engaging without defensiveness. According to
Dr. Saari, Taylor-Rose was doing well in sex offender treatment group, was actively engaging in
therapy, and was showing a willingness to bring clinically relevant issues to the group. Dr. Saari
noted that Taylor-Rose was working on his written treatment work and presenting it to the group,
a necessary step toward progressing in the treatment program.
A plethysmograph evaluation conducted on Taylor-Rose showed no sexual arousal to pre-
pubescent males or females in the preschool to grammar school age ranges, or to sexually violent
stimuli involving either children or adults.
Dr. Saari diagnosed Taylor-Rose with nonexclusive pedophilia and antisocial personality
disorder with borderline traits. He opined, “Although [Taylor-Rose] is making an effort at making
changes, and apparently has done so in treatment prior to the SCC, his impulse control has not
proven sufficient to keep him free of sexual offending.” Supp. Clerk’s Papers (CP) at 483. Dr.
Saari expressed concerns about Taylor-Rose’s self-awareness:
Cognitive-behavioral, relapse prevention treatment for sexual deviancy requires
open acknowledgment of a problem with sexual deviancy and a willingness to
openly disclose internal experience so that therapists can assist with the
development of interventions. Given [Taylor-Rose’s] state of denial, helping him
learn to effectively manage his risk for sexual re-offense will not be possible.
Supp. CP at 484.
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Dr. Saari concluded that Taylor-Rose’s pedophilic disorder “predisposes him to be more
likely than not to commit another sexually violent offense, if unconditionally released to the
community.” Supp. CP at 490.
In February 2017, Dr. Karen Franklin conducted a psychological evaluation to determine
whether Taylor-Rose had “so changed through treatment that he no longer meets civil commitment
criteria.” CP at 103. Dr. Franklin reviewed Taylor-Rose’s history, conducted collateral interviews
with Taylor-Rose’s mother and a childhood treatment provider, and evaluated Taylor-Rose for a
period of nine hours over two days. Dr. Franklin diagnosed Taylor-Rose with relatively mild
borderline personality disorder. Dr. Franklin reported no evidence that, at the time of the
evaluation, Taylor-Rose had pedophilia. She explained:
There is no evidence at the present time of persistent or intense sexual
interest in children. To the contrary, there is strong evidence of preferential arousal
to consensual relations with adult men: the behavioral, self-report and physiological
test data all converge. Furthermore, there is no evidence of an abnormally high sex
drive: Brian’s libido and testosterone levels are well within the normal range. A
pedophilia diagnosis should not rest upon a weak foundation of one or two instances
of inappropriate touching, committed many years apart under conditions of
intoxication, and strung together with uncorroborated hearsay based on unreliable
self-report. In my opinion, there is insufficient data to support a diagnosis of
pedophilia.
CP at 142.
Dr. Franklin recapped Taylor-Rose’s treatment at the SCC, noting that his treatment
records reflected he was “diligent in participating in treatment, and has made good progress.” CP
at 148.
Dr. Franklin assessed whether Taylor-Rose had changed through treatment by using the
Sex Offender Treatment Intervention and Progress Scale (SOTIPS), which measures progress in
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16 areas, using a four-point rating system. Dr. Franklin concluded that Taylor-Rose scored a 10
out of a prorated maximum total of 42 points, where lower scores indicate greater progress and
less risk of re-offense. Dr. Franklin identified eight prominent areas of treatment progress,
including (1) recognizing the need for change and working to modify his behavior; (2) cooperating
and engaging in treatment sessions; (3) working to understand the issues that contributed to his
offending; (4) recognizing and self-correcting attitudes and thoughts that support offending as they
occur; (5) improved motivation to obey rules and avoid infractions; (6) demonstrating better
behavioral stability and less impulsivity; (7) being drug and alcohol free for more than two years;
and (8) having appropriate sexual interests and behaviors with age-appropriate partners.
Dr. Franklin also noted that Taylor-Rose still struggled with self-management and was
reactive to negative emotional states such as loneliness, anxiety, or anger. Ultimately Dr. Franklin
concluded, “Based on all of the foregoing, it is my opinion—offered with a reasonable degree of
psychological certainty—that Mr. Taylor-Rose has so changed through sex offender-specific
treatment that he no longer meets the definition of a sexually violent predator.” CP at 150.
On May 5, 2017, based on Dr. Franklin’s evaluation, Taylor-Rose petitioned the superior
court for an unconditional release trial pursuant to RCW 71.09.090. The State opposed Taylor-
Rose’s petition, arguing that Dr. Franklin’s evaluation constituted an impermissible collateral
attack on Taylor-Rose’s initial commitment.
In September 2017, the State completed its second annual review of Taylor-Rose and
concluded that he continued to meet the sexually violent predator criteria. As part of the 2017
annual review, Dr. Megan Carter evaluated Taylor-Rose. She reported that although Taylor-Rose
had attained a higher privilege level earlier in the review period, at the time of her evaluation,
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Taylor-Rose had regressed in the treatment program due to some behavioral problems. Dr. Carter
noted that Taylor-Rose “presents in the contemplation stage of change, vacillating between
motivations to address issues and engaging in behaviors that are directly in violation of positive
change.” CP at 48. Dr. Carter noted a positive urinalysis result in April 2017.
Dr. Carter diagnosed Taylor-Rose with pedophilic disorder, antisocial personality disorder
with borderline personality disorder traits, and substance use disorder. Taylor-Rose scored 5 or 6
on a Static-99R, which is an actuarial measure of risk for sexual offense recidivism, placing him
in the above average to well above average risk category for being charged or convicted of another
sexual offense. In her professional opinion, Dr. Carter concluded that Taylor-Rose continued “to
suffer from a mental abnormality and/or personality disorder that makes him likely (more probably
than not) to engage in predatory acts of sexual violence if not confined in a secure facility.” CP at
70.
The superior court concluded that Taylor-Rose did not demonstrate probable cause for a
new trial to be ordered under RCW 71.09.090(2)(c) and denied Taylor-Rose’s petition.
ANALYSIS
Taylor-Rose argues that he supported his petition for an unconditional release trial with
prima facie evidence that he has so changed through treatment that he is no longer a sexually
violent predator, and therefore the superior court erred by denying his petition. We agree.
I. LEGAL PRINCIPLES
Where a court or jury finds beyond a reasonable doubt that an individual is a sexually
violent predator, he must be confined to a secure facility until such time as: (1) the person’s
condition has so changed that he no longer meets the definition of a sexually violent predator, or
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(2) conditional release to a less restrictive alternative is appropriate. RCW 71.09.060(1); State v.
McCuistion, 174 Wash. 2d 369, 379, 275 P.3d 1092 (2012). Once a sexually violent predator has
been committed to a secure facility, “he is entitled to a written annual review by a qualified
professional to ensure that he continues to meet the criteria for confinement.” McCuistion, 174
Wn.2d at 379; RCW 71.09.070. The committed individual may also petition the superior court for
conditional release to a less restrictive alternative or unconditional discharge. RCW
71.09.090(2)(a).
If the person does not waive his right to petition the superior court, the court must set a
show cause hearing to determine whether probable cause exists to warrant a trial. RCW
71.09.090(2)(a). At the show cause hearing, the State must present prima facie evidence that the
committed individual continues to meet the definition of a sexually violent predator and that
release to a less restrictive alternative would not be appropriate. RCW 71.09.090(2)(b);
McCuistion, 174 Wn.2d at 380.
Under RCW 71.09.090(2)(c), the superior court must order a full evidentiary hearing if the
State fails to present prima facie evidence that continued confinement is warranted or if the
committed individual establishes probable cause that his condition has “so changed” since his last
commitment trial that he no longer meets the definition of a sexually violent predator or that release
to a less restrictive alternative would be appropriate. McCuistion, 174 Wn.2d at 380. Probable
cause exists to believe that a person’s condition has “so changed” if evidence exists, since the
person’s last commitment trial, of a substantial change in the person’s physical or mental
condition. As relevant here, a new trial proceeding may only be initiated if a licensed professional
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provides current evidence that a person’s mental condition has changed through a “positive
response to continuing participation in treatment.” RCW 71.09.090(4)(ii).
“While the probable cause standard is not a stringent one, it allows the court to perform a
critical gate-keeping function.” McCuistion, 174 Wn.2d at 382. Under this standard, the superior
court may not weigh evidence. In re Det. of Petersen, 145 Wash. 2d 789, 798, 42 P.3d 952 (2002).
Instead, the court must decide whether the facts, if believed, are sufficient to establish that the
person has “so changed” and is no longer a sexually violent predator. Petersen, 145 Wn.2d at 796-
98. An expert’s opinion that a sexually violent predator no longer meets the definition of a sexually
violent predator due to treatment will satisfy the prima facie showing. See In re Det. of Ambers,
160 Wash. 2d 543, 559, 158 P.3d 1144 (2007). Mere conclusory statements, however, are insufficient
to establish probable cause. In re Det. of Jacobson, 120 Wash. App. 770, 780, 86 P.3d 1202 (2004).
We review de novo a superior court’s conclusion about whether the evidence meets the
probable cause standard. Petersen, 145 Wn.2d at 799.
II. PRIMA FACIE EVIDENCE
Given the relatively low bar that a petitioner must meet to make a prima facie showing, we
hold that Taylor-Rose produced sufficient evidence to support his petition for an unconditional
release trial.
Dr. Franklin’s opinion satisfies the probable cause standard. First, she identified that
Taylor-Rose had been highly engaged in treatment for the two years prior to the evaluation,
including being “cooperative, diligent, and non-defensive in group and individual treatment
sessions,” and “working to understand the issues that contributed to his offending” in individual
and group therapy and in written assignments. CP at 149. Second, Dr. Franklin concluded that
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No. 51246-7
Taylor-Rose had benefited from treatment in that he “recognizes the need for change,” and “is
actively in the process of working to positively modify his behavior.” CP at 149. Dr. Franklin
also noted that Taylor-Rose’s ability to obey rules was substantially improved, and he was
“demonstrating far greater behavior stability and less impulsivity than in the past.” CP at 150.
Third, Dr. Franklin concluded that Taylor-Rose presented a lowered risk of sexual
recidivism after administering a SOTIPS evaluation which showed his risk of re-offense is in the
average range for convicted sex offenders and is not more likely than not to commit predatory acts
of sexual violence if not confined. Dr. Franklin noted that Taylor-Rose was capable of recognizing
and self-correcting attitudes or thoughts that might support sex offending as they occur. Dr.
Franklin also concluded that Taylor-Rose’s commitment to continued sobriety was a significant
area of reduced risk.
In her opinion, Dr. Franklin concluded that, at the time of her evaluation, there was no
current evidence of sexual deviance and that Taylor-Rose’s sexual interests and behaviors were
entirely appropriate. Satisfying the probable cause standard, Dr. Franklin concluded that Taylor-
Rose had so changed through his sex offender-specific treatment that he no longer met the
definition of a sexually violent predator.
The State disputes many of Dr. Franklin’s conclusions, pointing to its own experts’
opinions as evidence that Taylor-Rose has not so changed as to be entitled to an unconditional
release trial. However, in determining whether probable cause exists to warrant a trial, we “must
assume the truth of the evidence presented; [we] may not ‘weigh and measure asserted facts against
potentially competing ones.’” McCuistion, 174 Wn.2d at 382 (quoting Petersen, 145 Wn.2d at
797. Indeed, this limited review of the evidence is consistent with the sexually violent predator
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statutory scheme, wherein a petitioner may be entitled to a trial because he produced prima facie
evidence that he was so changed, despite the fact that the State also carried its burden of producing
prima facie evidence that he continued to meet the definition of a sexually violent predator.
While Dr. Franklin’s opinion may be subject to impeachment upon cross-examination at
trial, such a weighing of the evidence is not appropriate in a probable cause determination. “[A]
full presentation of all the evidence where that evidence can be weighed and disputes can be
resolved by the fact finder” remains an exercise for trial. Petersen, 145 Wn.2d at 797-98. At this
stage, we need only determine whether Dr. Franklin’s opinion, if believed, establishes probable
cause. We hold that it does. We reverse and remand with instructions to schedule Taylor-Rose’s
case for trial.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
SUTTON, J.
We concur:
MAXA, C.J.
MELNICK, J.
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