Opinion
41937-8-II
02-20-2013
In the Matter of the Detention of: TROY BELCHER, Appellant, v. STATE OF WASHINGTON, Respondent
UNPUBLISHED OPINION
Van Deren, J.
Troy Belcher appeals from a trial court order civilly committing him as a sexually violent predator (SVP) under chapter 71.09 RCW, asserting that (1) the trial court abused its discretion by allowing the victims of Belcher's sex offenses to testify at his SVP trial, and (2) sufficient evidence did not support the jury's verdict finding that Belcher was an SVP. We affirm the trial court's SVP commitment order.
FACTS
Belcher has two juvenile adjudications finding him guilty of sex offenses committed when he was 13- and 15-years-old. In its statement of probable cause to commit Belcher as an SVP, the State described Belcher's first juvenile offense:
We quote from the State's certification for determination of probable cause because the detention orders following Belcher's juvenile adjudications were not included in the record on appeal. The State's response brief cites to several trial exhibits, which exhibits may have included Belcher's juvenile adjudication orders, but the State failed to designate the trial exhibits in the appellate record. Belcher does not contend that the facts underlying his juvenile adjudications as stated in the State's certification for determination of probable cause are inaccurate and, in fact, relies on those documents in the fact section of his brief.
1. Rape in the Second Degree by Forcible Compulsion, Clark
County Superior Court Cause No. 98-8-00834-8
On or about July 16, 1998, 13-year-old . . . BELCHER approached a 13-year-old girl, [LC], who was babysitting at a park. [LC] and Belcher had never met prior to that day. Belcher struck up a conversation with [LC] while pushing one of the children on the swings.
[LC] decided it was time to take the children home. When she was about half way home, she noticed that Belcher was following her. When she got to the house, Belcher tried to invite himself inside. [LC] wouldn't let him inside, but eventually agreed to give him her phone number hoping he would leave. After they exchanged phone numbers, Belcher left.
A few minutes later there was a knock on the door. When [LC] answered the door, Belcher forced his way inside. Belcher told [LC] that he wanted to have sex with her. She told him no and unsuccessfully tried to push him away from her. Belcher pushed her up the stairs and into one of the bedrooms. He pinned her down on the floor and told her to remove her pants. When she refused, Belcher forced them off. [LC] kept telling him no and hit him repeatedly trying to get him off of her. Belcher then put his penis inside [LC]'s vagina and vaginally raped her. She was menstruating at the time. After approximately twenty to thirty seconds, one of the children knocked on the door. This alarmed Belcher, who quickly put on his pants and left.
Belcher was subsequently charged in the Juvenile Division of the Clark County Superior Court with rape in the first degree by forcible compulsion and burglary in the first degree. On October 5, 1998, a judge found Belcher guilty of a lesser offense of rape in the second degree by forcible compulsion. On November 10, 1998, Belcher received a manifest injustice sentence and was committed to the Department of Juvenile Rehabilitation for 65 weeks. While still on parole for this sex offense, Belcher committed his second sexually violent offense.
We use initials to identify the minor victim under this court's General Order 2011-1, which order states in part, "[I]n all opinions, orders and rulings in sex crime cases, this Court shall use initials or pseudonyms in place of the names of all witnesses known to have been under the age of 18 at the time of any event in the case."
Clerk's Papers (CP) at 4.
Following his juvenile adjudication for the second degree rape by forcible compulsion charge, Belcher was detained at the Echo Glen Children's Center, a medium to maximum security facility operated by the Juvenile Rehabilitation Administration (JRA). Belcher was later released from detention at Echo Glen to community supervision but his community supervision was revoked after he violated the conditions of his release, which violations included Belcher cutting off his electronic monitoring device, violating curfew, and having unsupervised contact with minors.
After he was released to community supervision a second time, Belcher violated his conditions of release by failing to check in with his parole officer, failing to attend school, and having unsupervised contact with minors. Following his third release to community supervision, Belcher again violated his release conditions, this time by failing to attend treatment on four different occasions. Belcher's community supervision was revoked a fourth time after he failed to attend school, admitted to using alcohol, and violated curfew.
The first day he was back on community supervision following his fourth revocation, he was arrested for attempted second degree rape. He was later adjudicated guilty on the charge. The statement of probable cause to commit Belcher as an SVP described this second juvenile offense for attempted second degree rape as follows:
2. Attempted Rape in the Second Degree, Cowlitz County
Superior Court Cause No. 00-8-00693-7
In April 2000, 13-year-old [JA] was walking to a friend's house when she encountered 15-year-old Belcher. [JA] knew who Belcher was because they rode the same bus to school. Belcher offered to show [JA] a shortcut through the woods. [JA] agreed, although unbeknownst to her, there was no such shortcut.
Once they were in the woods, Belcher started to kiss [JA]. He unbuttoned her pants, pulled her pants and underwear down to her knees, and pushed her to the ground on her back. Belcher then pulled down his pants and straddled her with one leg on each side of her. Belcher told her he wouldn't hurt her as long as she didn't scream. [JA] finally managed to push Belcher off of her, pull up her pants, and run away. However, Belcher chased her. Belcher caught up to [JA] and grabbed her. He then told her that she was a sweet girl and she shouldn't let anyone do that to her. During an interview with the police, Belcher admitted that he pulled down [JA]'s pants and underwear and that he planned on having sex with her. He also admitted that he had tried to rape [JA].
On October 17, 2000, Belcher was charged in the Juvenile Division of Cowlitz County Superior Court with attempted rape in the second degree by forcible compulsion. On December 19, 2000, a judge found Belcher guilty of attempted rape in the second degree. On January 17, 2001, Belcher received a manifest injustice sentence and was committed to the Department of Juvenile Rehabilitation for 256 weeks.
CP at 5.
Following adjudication for attempted second degree rape by forcible compulsion, Belcher was detained at the Green Hill School JRA facility. While at Green Hill, Belcher exhibited problem behaviors that included inciting other detainees to misbehave, verbally abusing other detainees, and exposing himself.
In 2004, Belcher approached another Green Hill resident and asked about having LC-the victim of Belcher's first second degree rape crime-hurt, killed, or put into a coma. Based on this incident, the State charged Belcher with solicitation to commit first degree murder and intimidating a witness. Belcher later pleaded guilty to the intimidation charge and was sentenced to 27 months' incarceration. In February 2005, Belcher transferred from Green Hill to the Washington State Department of Corrections to serve his sentence on the intimidation conviction.
In December 2007, the State filed a petition to civilly commit Belcher as an SVP under chapter 71.09 RCW. Belcher was transferred to the McNeil Island Special Commitment Center (SCC) pending his trial on the commitment petition. While at the SCC, Belcher received numerous behavioral management reports for conduct that included making sexually harassing phone calls to women outside the facility, manipulating special needs residents at the SCC, and verbally abusing SCC staff.
Before trial, Belcher's counsel made several motions but did not move to exclude LC's and JA's testimony. Both LC and JA testified at trial. Their testimony was limited to the facts underlying Belcher's offenses, and neither testified about how Belcher's offenses affected them.
Psychologist Dr. Brian Judd testified as the State's expert. Judd testified that he had diagnosed Belcher with "paraphilia, not otherwise specified, with the specifier of non-consent." Report of Proceedings (RP) at 849. Belcher described his paraphilia diagnosis as follows:
[Paraphilia] refers to an individual who is experiencing recurrent, intense sexually arousing fantasies, sexual urges or exhibits behaviors that involve either non-human objects, suffering or humiliation of oneself or one's partner. This would be, for instance, sadism or masochism. Or children or other non-consenting persons. And, the simple process of-say that this behavior or these urges occur on one occasion is not sufficient in order to diagnose paraphilia and so, . . . in order to qualify for a diagnosis, we want to demonstrate some degree of continuity. . . . And, in addition, . . . to be identified as a disorder, it requires that the individual experiences significant-clinically significant distress or some impairment in social, occupational or other important areas of functioning.
RP at 852-53. Judd also testified that he had diagnosed Belcher with antisocial personality disorder, which he described as "refer[ring] to an individual, typically in late adolescent, early adulthood that has a pattern of behavior in which they are-find it difficult to conform to laws." RP at 873. Specifically, Judd testified that Belcher met several of the criteria of an antisocial personality disorder diagnosis, including:
Failure to conform to social norms with respect to lawful behaviors as indicated by repeatedly performing acts that are grounds for arrest.
Deceitfulness [a]s indicated by repeated lying, use of aliases or . . . conning others for personal profit or pleasure.
Impulsivity or failure to plan ahead [and]
Irritability and aggressiveness as indicated by repeated physical fights or assaults.
RP at 874-75, 877, 880.
Judd also testified about specific incidents that supported his finding that Belcher met the criteria supporting an antisocial personality diagnosis. Judd concluded that Belcher "has serious difficulty controlling his behaviors because of his mental abnormality to a reasonable degree of psychological certainty." RP at 931.
Judd concluded that "Belcher's mental abnormality makes him likely to engage in predatory acts of sexual violence, if not confined to a secure facility," which Judd explained means that he has more than a 50 percent probability of engaging in sexually violent behavior in the future if not confined. RP at 932. In support of his conclusion that Belcher was likely to reoffend if not confined, Judd testified that he relied on a risk assessment tool known as the Sex Offender Risk Appraisal Guide (SORAG).
Judd stated that he relied on the SORAG because it has been shown to be an accurate predictor of sex offense recidivism. Judd further testified that he had consulted with the authors of the SORAG to confirm that it was an appropriate instrument to evaluate an offender who had committed his offenses while a juvenile, stating:
Now, in regard to adolescents, not only at the outset before I even conducted the evaluations and the assessment of . . . Belcher, but also subsequently, I have had contact with one or more of the authors of the SORAG. . . . And [one of the SORAG authors] provided me with some additional follow up information that looked at-they now have a-excuse me, a total sample size of over 700 offenders of which 74 were under the age of 18 at the time that they committed their index or most recent offense. And, the findings from this demonstrate the same-at ten years, the same strength as it did for the adult studies. In other words, 77% of those individuals that recidivated had a higher score on the SORAG than those that did not. And, this is comparable for what we have for the adult studies.
RP at 1105-06. Judd also stated that the average recidivism rate for juveniles found to have committed sexually violent offenses is approximately 10 percent but that 100 percent of the sample subjects who had the same SORAG score as Belcher reoffended within seven years of being released from confinement.
Belcher's expert witness, psychologist Dr. Richard Wollert, testified that he typically testifies on behalf of respondents in SVP commitment trials. He based his evaluation on the materials Judd reviewed as part of his evaluation and on his own interviews with Belcher and with Belcher's fiancée. Wollert opined that Belcher did not suffer from a mental abnormality because he did not find evidence that Belcher's psychological attitudes were pervasive and inflexible over a period of time. Wollert also testified that he disagreed with Judd's paraphilia diagnosis because Belcher did not have "recurrent, intense, sexually arousing fantasies." RP at 1183. Wollert further testified that Judd's diagnosis was based on a methodology that is not a valid predictor of recidivism because it relied on offenses Belcher committed while he was a juvenile. Wollert concluded that Belcher had a 7 percent chance of reoffending.
The jury returned a verdict finding that the State had proven beyond a reasonable doubt that Belcher was an SVP. The trial court accepted the jury's verdict and entered an order committing Belcher to the SCC. Belcher timely appeals.
ANALYSIS
Belcher challenges (1) the trial court's admission of LC's and JA's testimony relating the facts of his attacks on them and (2) the sufficiency of the evidence supporting the findings that he suffers from a mental abnormality or personality disorder and that these disorders make it likely that he would reoffend if he were not confined in a secure environment. We reject his challenges and affirm the trial court's commitment order.
I. Admission of Victim Testimony
Belcher first contends that the trial court abused its discretion by failing to exclude LC's and JA's testimony at trial. This assertion fails because Belcher has not preserved this issue for appeal. Moreover, it was not an abuse of the trial court's discretion to admit this evidence.
As an initial matter, Belcher has not properly preserved this issue for appeal because he did not object to the challenged testimony at trial. Belcher raised no objection to LC's or JA's testimony at trial. Belcher claims in his opening brief that he objected to the State calling LC and JA. But the portions of the record that Belcher cites contain discussion regarding a motion in limine seeking to restrict the expert witnesses' testimony. Belcher also filed two motions to exclude JRA or police witnesses, but neither motion referred to LC or JA.
We need not consider issues that are raised for the first time on appeal unless they are manifest constitutional errors. State v. Kirkman, 159 Wn.2d 918, 926, 155 P.3d 125 (2007); RAP 2.5(a). Washington courts have "'steadfastly adhered to the rule that a litigant cannot remain silent as to claimed error during trial and later, for the first time, urge objections thereto on appeal.'" State v. Guloy, 104 Wn.2d 412, 421, 705 P.2d 1182 (1985) (quoting Bellevue Sch. Dist. No. 405 v. Lee, 70 Wn.2d 947, 950, 425 P.2d 902 (1967)).
And our Supreme Court has held that the preservation of error requirement applies to appeals from SVP determinations, noting that:
"[T]he trial court should be given an opportunity to correct errors and omissions at the trial level, and that it was the obligation of the parties to draw the trial court's attention to errors, issues, and theories, or be foreclosed from relying upon them on appeal. [Additionally,] opposing parties should have an opportunity at trial to respond to possible claims of error, and to shape their cases to issues and theories, at the trial level, rather than facing newly-asserted errors or new theories and issues for the first time on appeal."In re Det. of Audett, 158 Wn.2d 712, 725-26, 147 P.3d 982 (2006) (quoting 2A Karl B. Tegland, Washington Practice: Rules Practice RAP 2.5 author's cmts. at 192 (6th ed. 2004).
Belcher does not argue in his brief that RAP 2.5(a)(3) applies here, which could allow us to review his claim for the first time on appeal if we held that his claim was based on a "manifest error affecting a constitutional right." Instead, Belcher claims that the trial court's failure to exclude the victims' testimony violated his constitutional right to a fair trial. But the substance of Belcher's argument is that the trial court's failure to exclude the victims' testimony ran afoul of ER 403. We reject Belcher's attempt to recast his evidentiary contention as a manifest constitutional error that he may raise for the first time on appeal and hold that he has failed to preserve this issue for appeal. In re Det. of Post, 145 Wn.App. 728, 751 n.13, 187 P.3d 803 (2008), aff'd, 170 Wn.2d 302, 241 P.3d 1234 (2010).
ER 403 provides, "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue delay, waste of time, or needless presentation of cumulative evidence."
In any event, the trial court did not abuse its discretion by failing to exclude the victims' testimony. Belcher contends that the prejudicial nature of the testimony outweighed its probative value under ER 403, particularly because Belcher agreed to stipulate to his prior sexual offenses. In support of his contention, Belcher cites State v. Acosta, 123 Wn.App. 424, 435, 98 P.3d 503 (2004), a criminal case in which we held:
Testimony regarding unproved charges, and convictions at least ten years old do not assist the jury in determining any consequential fact in this case. Instead, the testimony informed the jury of Acosta's criminal past and established that he had committed the same crimes for which he was currently on trial many times in the past.
(Footnote omitted.) Belcher's reliance on Acosta is misplaced because Acosta does not address the unique nature of SVP proceedings, where the facts underlying previous sexual offenses are highly probative of the alleged SVP respondent's propensity for future violence. In re Det. of Turay, 139 Wn.2d 379, 401, 986 P.2d 790 (1999). Moreover, our Supreme Court rejected Belcher's argument in Turay, where it held:
The purpose of SVP commitment proceedings, pursuant to RCW 71.09.060(1), is for "[t]he court or jury [to] determine whether, beyond a reasonable doubt, the person is [an SVP]." In making this determination, the manner in which the alleged SVP committed his or her previous crimes is relevant to establish the "motivations and mental states" of that person. [In re Pers. Restraint of] Young, 122 Wn.2d [1,] 53[, 857 P.2d 989 (1993)]. Furthermore, the prejudicial effect of introducing testimony of prior victims does not outweigh its probative value because "[i]n accessing whether an individual is a sexually violent predator, prior sexual history is highly probative of his or her propensity for future violence" and "the likelihood of continued violence on the part of [SVP respondents] is central to the determination of whether they are [SVP]s under the terms of the Statute." Young, 122 Wn.2d at 53 (emphasis added). Accordingly, the rationale behind admitting prior victim testimony in an SVP commitment proceeding is not solely to prove the element of prior conviction, but rather to assess the mental state of the alleged SVP, the nature of his or her sexual deviancy, and the likelihood that he or she will commit a crime involving sexual violence in the future.139 Wn.2d at 401 (some alterations in original). Turay dictates the outcome of this argument and we hold that the prejudicial nature of the victims' testimony did not outweigh the highly probative value of the testimony in determining whether Belcher is an SVP. Accordingly, even if Belcher properly preserved his contention with the victims' testimony by objecting to the testimony at trial, the trial court did not abuse its discretion by failing to exclude the testimony under ER 403.
II. Sufficiency of the Evidence
Belcher also asserts that sufficient evidence did not support the trial court's SVP commitment order. We disagree.
We apply the same standard to sufficiency challenges in SVP commitment determinations as we apply in sufficiency challenges to criminal convictions. In re Det. of Thorell, 149 Wn.2d 724, 744, 72 P.3d 708 (2003). Sufficient evidence exists to support a conviction if any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt when viewing the evidence in the light most favorable to the State. State v. Hosier, 157 Wn.2d 1, 8, 133 P.3d 936 (2006). A defendant claiming insufficiency of the evidence admits the truth of the State's evidence and all inferences that reasonably can be drawn from the evidence. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Circumstantial evidence and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). We defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Walton, 64 Wn.App. 410, 415-16, 824 P.2d 533 (1992).
To commit Belcher as an SVP under chapter RCW 71.09.060(1), the State had to prove beyond a reasonable doubt that he was an SVP. RCW 71.09.020 defines a "sexually violent predator" as "any person who has been convicted of or charged with a crime of sexual violence and who suffers from a mental abnormality or personality disorder [that] makes the person likely to engage in predatory acts or sexual violence if not confined in a secure facility."
Belcher concedes that sufficient evidence supported a finding that he had been convicted of a crime of sexual violence, but he asserts that sufficient evidence did not support a finding that he suffered from a mental abnormality or personality disorder. He also asserts that sufficient evidence did not support a finding that he is likely to engage in predatory acts of sexual violence if not confined in a secure facility.
Here, Judd's testimony provided ample evidence to support the jury's finding that Belcher was an SVP. Judd testified that he had diagnosed Belcher with paraphilia and antisocial personality disorder, described the meaning of those diagnoses, and described the specific instances of Belcher's conduct that supported his diagnoses. This is sufficient evidence that Belcher suffered from a mental abnormality or personality disorder as those terms are defined in RCW 71.09.020. Judd also testified that based on Belcher's score on the SORAG risk assessment tool, he would likely reoffend if not confined. This provides sufficient evidence that Belcher would engage in predatory acts of sexual violence if not confined in a secure facility.
RCW 71.09.020(8) provides, "'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(9) provides:"Personality disorder" means an enduring pattern of inner experience and behavior that deviates markedly from the expectations of the individual's culture, is pervasive and inflexible, has onset in adolescence or early adulthood, is stable over time and leads to distress or impairment. Purported evidence of a personality disorder must be supported by testimony of a licensed forensic psychologist or psychiatrist. The legislature amended RCW 71.09.020(9), effective May 7, 2009, between the times that the State filed its December 6, 2007, certification for determination of probable cause to commit Belcher as an SVP and when the trial court entered its February 3, 2011, order committing Belcher as an SVP. Laws of 2009, ch. 49, § 1. Belcher does not assert that the legislative amendment defining "personality disorder" is material to any of the issue he raises on appeal and he relies on the current statutory definition of "personality disorder," which he cites in his brief.
RCW 71.09.020(7) provides:"Likely to engage in predatory acts of sexual violence if not confined in a secure facility," means that the person more probably than not will engage in such acts if released unconditionally from detention on the sexually violent predator petition. Such likelihood must be evidenced by a recent overt act if the person is not totally confined at the time the petition is filed under RCW 71.09.030.
Belcher appears to rely on his own expert's contrary testimony and conclusion to support his argument that sufficient evidence did not support the finding that he was an SVP under the statute. He also argues, again relying solely on his defense expert's testimony, that the SORAG risk assessment tool is an improper or inaccurate tool to use on those who committed sex crimes as juveniles. Judd, however, testified that the SORAG is a reliable predictor of future predatory acts of sexual violence for a person with Belcher's background.
In reviewing a sufficiency challenge, we view the evidence in a light most favorable to the State, do not reweigh the evidence, and do not evaluate the credibility of witnesses. Accordingly, we hold that sufficient evidence supports a finding that Belcher was an SVP and we affirm the trial court's SVP commitment order.
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.
We concur: Quinn-Brintnall, J., Worswick, C.J.