DocketNumber: No. 62383-4-I
Citation Numbers: 154 Wash. App. 116
Judges: Appelwick, Grosse, Leach
Filed Date: 1/11/2010
Status: Precedential
Modified Date: 11/16/2024
¶1 Harold Glen Brown appeals his commitment as a sexually violent predator (SVP) under chapter 71.09 RCW. He contends that procedures used by the trial court to determine whether the crime for which he was incarcerated constituted a recent overt act violated his due process rights. We hold no constitutional error occurred and affirm Brown’s civil commitment.
Background
¶2 Brown has a history of sex offenses, including convictions for child molestation in the first degree and rape of a child in the second degree. In 1990, when Brown was 27 years old, he molested two sisters aged 8 and 5. At first, Brown admitted molesting the older sister and denied having other victims. But after the younger sister told the authorities that she was also a victim, Brown confessed to molesting both children. In 1991, Brown pleaded guilty to two counts of child molestation in the first degree.
¶3 Before sentencing, Brown was released to community custody and underwent an evaluation for a special sex offender sentencing alternative (SSOSA). The evaluation process required that Brown disclose his entire offense history and pass a polygraph test.
¶4 Brown did not disclose the full extent of his sexual deviancy. He concealed from his evaluators a number of past victims and his current sexual relationship with a 13-year-old girl. Brown eventually got this girl pregnant.
¶5 When the authorities learned of Brown’s sexual contact with the 13-year-old, he was returned to confinement and sentenced on the child molestation charges. Brown was also convicted of rape of a child in the second degree. While incarcerated, Brown participated in a sex offender treat
¶6 Brown was released into community supervision in July 2002. Initially, Brown’s community corrections officer (CCO) and sex offender treatment provider denied him the right to use computers. Access was eventually granted after Brown made repeated requests for Internet access for employment purposes. Over the course of the next few months, Brown downloaded pornographic images of children from his work computer.
¶7 When first confronted about viewing pornographic images, Brown lied. But after repeated questioning by his CCO, he confessed to viewing an adult pornographic video and to downloading pornography with his work computer. Brown was warned that his residence would be searched, at which point he admitted to having nude pictures of children. The video and sexually suggestive photos of children were discovered during the search.
¶8 In August 2004, a jury convicted Brown of seven counts of possession of depictions of a minor engaged in sexually explicit conduct. Brown remained incarcerated for these convictions in 2005 when the State petitioned to have him civilly committed as an SVP. The trial court conducted a pretrial hearing to determine whether Brown’s convictions for possession of child pornography constituted a recent overt act under former RCW 71.09.020(10) (2006). The trial court determined that Brown’s crime was a recent overt act that relieved the State from having to prove a recent overt act at trial. A unanimous jury subsequently found that Brown was an SVP, and he was civilly committed.
¶9 Brown appeals, claiming that the trial court’s pretrial procedure denied him due process.
¶10 Whether an act is a recent overt act is a mixed question of law and fact.
Analysis
¶11 Before reaching Brown’s due process arguments, we first respond to the State’s contention that Brown failed to preserve for appeal his challenge to the trial court’s decision about a recent overt act. RAP 2.5(a)(3) allows an appellate court to refuse to review any claimed error not raised at the trial court below absent a “manifest error affecting a constitutional right.” Accordingly, an appellant may raise an error for the first time on appeal if he or she demonstrates (1) that the error is manifest and (2) that the error is truly of constitutional dimension.
¶12 This test, however, presupposes an error in the first place. And because it would be useless for a court to investigate whether nonexistent error is of constitutional import, we determine whether any alleged error occurred and address the constitutional dimension only if error did occur. Thus, we preview the merits of the claimed constitu
¶13 Brown makes three distinct arguments: (1) the court must conduct an evidentiary hearing before deciding whether the act for which an offender is incarcerated constitutes a recent overt act, (2) the clear and convincing evidence standard applies to this preliminary hearing, and (3) his child pornography possession convictions do not constitute a recent overt act. For reasons explained below, we reject these arguments and find no fault with the trial court’s proceedings.
¶14 Due process requires that an offender “must be both mentally ill and presently dangerous before he or she may be indefinitely committed.”
¶15 But due process does not require that the State prove a recent overt act when, on the day the petition is filed, the “individual is incarcerated for a sexually violent offense, or for an act that would itself qualify as a recent overt act.”
¶16 Our decision in State v. McNutt
¶17 In McNutt, the respondent was a sexually violent offender with a history of offering young boys money, beer, or cigarettes to perform sadistic acts upon him while he masturbated. During community placement, McNutt invited a 14-year-old girl and three young adult males to his home and asked to be their sex slave. McNutt entered an Alford plea
¶18 On appeal, we agreed with McNutt that some factual inquiry was required but held that “because it is a mixed question of law and fact regarding McNutt’s history, that inquiry is for the court and not the jury.”
¶19 Marshall was decided five months later. Marshall was incarcerated for third degree rape of a developmentally disabled woman at the time the State filed its SVP petition. Because third degree rape was not statutorily defined as a sexually violent offense, the court had to determine whether the respondent was incarcerated for an act that qualified as a recent overt act. In finding that it did, the Marshall court expressly approved the analysis used in McNutt.
[F]irst, an inquiry must be made into the factual circumstances of the individual’s history and mental condition; second, a legal inquiry must be made as to whether an objective person knowing the factual circumstances of the individual’s history and mental condition would have a reasonable apprehension that the individual’s act would cause harm of a sexually violent nature.[19]
¶20 These cases make clear that whether the act resulting in confinement constitutes a recent overt act is a mixed question of fact and law decided by first looking into the factual circumstances of the offender’s history and
¶21 Moreover, Brown has failed to demonstrate any prejudice resulting from the denial of an evidentiary hearing. He does not identify any disputed fact relied upon by the trial court to make its decision. As noted below, the only matter in dispute before the trial court was a portion of Brown’s diagnosis, a portion not relied upon by the trial court when making its decision.
¶22 Brown next contends that Foucha v. Louisiana
¶23 A similar issue was debated in Marshall, where the dissent argued that Foucha stood for the proposition that the recent overt act inquiry must be decided by a jury as a
¶24 The additional authorities cited by Brown do not support a different result. In Addington v. Texas, the United States Supreme Court held that the State must prove mental illness and present dangerousness by clear and convincing evidence before an individual can be civilly committed to a mental institution under state law.
¶25 In In re Detention of Taray, our Supreme Court addressed who had the burden of proof at an annual show cause hearing under RCW 71.09.090.
¶26 Brown’s reliance on In re Detention of Albrecht
¶27 Applying the Marshall analysis to this case, the record contains the following undisputed facts. Brown was confined at the time the petition was filed for a criminal offense, possession of child pornography. Before this offense, Brown had pleaded guilty to child molestation in the first degree. While undergoing a SSOSA evaluation,
¶28 Brown did not challenge these facts during his pretrial hearing. Instead, Brown focused on a disagreement between the State and the defense expert over whether Brown’s admission that he was in his offense cycle indicated a future probability of reoffense. Brown erroneously asserts that expert opinions are facts. Opinions are not facts. And as explained above, the factual inquiry engaged in by the court is not that of a trier of fact. The time and place to contest disputed expert opinion testimony is at the civil commitment trial where the State must prove present dangerousness beyond a reasonable doubt.
¶29 We conclude that Brown’s pornography possession convictions were a recent overt act that relieved the State from proving a recent overt act at trial. Knowledge of Brown’s history and mental condition could create a reasonable apprehension of harm of a sexually violent nature in the mind of an objective person.
¶30 The trial court does not act as a fact finder when deciding whether the act resulting in incarceration is a recent overt act. Therefore, due process does not require that the trial court conduct an evidentiary hearing to make this preliminary determination. As explained above, the clear and convincing evidence standard does not apply to this determination. Finally, the record supports the trial court’s determination that Brown’s possession of child pornography was an overt act because knowledge of Brown’s history and mental condition could create a reasonable apprehension of harm of a sexually violent nature in the mind of an objective person. We affirm.
In re Det. of Marshall, 156 Wn.2d 150, 158, 125 P.3d 111 (2005).
In re Det. of Anderson, 166 Wn.2d 543, 555, 211 P.3d 994 (2009).
Anderson, 166 Wn.2d at 555.
State v. O’Hara, 167 Wn.2d 91, 98, 217 P.3d 756 (2009).
O’Hara, 167 Wn.2d at 98.
State v. Huyen Bich Nguyen, 165 Wn.2d 428, 433-34, 197 P.3d 673 (2008).
Marshall, 156 Wn.2d at 157.
In re Det. of Albrecht, 147 Wn.2d 1, 7-8, 51 P.3d 73 (2002).
Former RCW 71.09.020(10).
In re Det. of Henrickson, 140 Wn.2d 686, 695, 2 P.3d 473 (2000) (citation omitted).
State v. McNutt, 124 Wn. App. 344, 349, 101 P.3d 422 (2004).
124 Wn. App. 344, 101 P.3d 422 (2004).
156 Wn.2d 150, 125 P.3d 111 (2005).
North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
McNutt, 124 Wn. App. at 350.
McNutt, 124 Wn. App. at 350.
McNutt, 124 Wn. App. at 350-51.
Marshall, 156 Wn.2d at 158 (“The court must either determine from the materials relating to the individual’s conviction whether the individual is incarcerated for an act that actually caused harm of a sexually violent nature, or it must determine whether the individual was incarcerated for an act that qualifies as a recent overt act under a two step analysis described by the Court of Appeals in McNutt.”).
19 Marshall, 156 Wn.2d at 158.
504 U.S. 71, 112 S. Ct. 1780, 118 L. Ed. 2d 437 (1992).
Foucha, 504 U.S. at 80.
Marshall, 156 Wn.2d at 165 (Chambers, J., dissenting).
Marshall, 156 Wn.2d at 158.
441 U.S. 418, 433, 99 S. Ct. 1804, 60 L. Ed. 2d 323 (1979).
Addington, 441 U.S. at 433.
139 Wn.2d 379, 423, 986 P.2d 790 (1999).
Turay, 139 Wn.2d at 423-24.
149 Wn.2d 724, 745, 72 P.3d 708 (2003).
147 Wn.2d 1, 51 P.3d 73 (2002).
Albrecht, 147 Wn.2d at 10-11.
Albrecht, 147 Wn.2d at 10-11.
Albrecht, 147 Wn.2d at 11.
Both the State and the defense expert agreed on this, though they disagreed on other aspects of Brown’s diagnosis.
For instance, to civilly commit a person under the SVP statute, the State must still prove beyond a reasonable doubt that the respondent suffers from a mental abnormality or personality disorder that makes him “ ‘[l]ikely to engage in predatory acts of sexual violence if not confined in a secure facility.’ ” In re Det. of Audett, 158 Wn.2d 712, 727, 147 P.3d 982 (2006) (emphasis added) (quoting former RCW 71.09.020(7)).