Opinion
No. 28310-7-II.
Filed: March 2, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Cowlitz County. Docket No: 99-2-01594-1. Judgment or order under review. Date filed: 12/17/2001. Judge signing: Hon. Stephen M Warning.
Counsel for Appellant(s), Darrel S. Jr Ammons, Ammons Angelico PS, 871 11th Ave, PO Box 2567, Longview, WA 98632-8612.
Counsel for Respondent(s), Sarah Sappington, Office of The Atty General, 900 4th Ave Ste 2000, Seattle, WA 98164-1076.
Eric St. John appeals from the trial court determination that he is a sexually violent predator and from its order committing him to a secure facility under the custody of the Department of Social and Health Services (DSHS). Holding that the trial court (1) properly relied on St. John's juvenile offenses to determine that he is a sexually violent predator; and (2) adequately considered less restrictive alternatives to confinement, we affirm.
FACTS
In September 1999, the State of Washington filed a petition seeking to have St. John detained as a sexually violent predator (SVP). At the subsequent commitment trial, the State presented evidence of St. John's history of sexual offenses: two juvenile sex offenses, to show that he met the statutory definition of a SVP. See former RCW 71.09.020(1) (1995). St. John then presented evidence from Dr. Kelly Fielding, a psychologist and certified sex offender treatment provider. She testified about the option of a less restrictive alternative (LRA) instead of total confinement, but the trial court excluded evidence about the details of a particular group home alternative.
The trial court found that St. John is a SVP and that there were no current LRAs that would adequately protect St. John and the community. Consequently, it committed St. John to a secure facility.
St. John appeals, arguing that (1) a determination that a person is a SVP may not be based on sex offenses that he committed as a juvenile; and (2) the trial court failed to adequately consider LRAs to confinement.
The State moved to stay St. John's appeal pending the Washington Supreme Court's decision in In re Detention of Thorell, 149 Wn.2d 724, 72 P.3d 708 (2003). The issue in Thorell was whether a trial court must consider LRAs at a SVP commitment trial. On April 4, 2003, we granted the motion. As the Supreme Court has now issued its opinion in Thorell, we lifted the stay and will decide the case before us on the merits.
DISCUSSION I. Juvenile Sex Offenses
St. John claims that the State failed to prove that he is a SVP. He argues that (1) former RCW 71.09.020 defines SVP as someone who has committed a crime of sexual violence; (2) under In re Personal Restraint of Weaver, juvenile offenses are not crimes; and (3) as the State's only evidence is that he committed two juvenile sexual offenses, the State has failed to prove that he meets the statutory definition of a SVP. Statutory interpretation is a question of law that we review de novo. Berger v. Sonneland, 144 Wn.2d 91, 104-05, 26 P.3d 257 (2001). Because plain words do not require construction, we do not construe an unambiguous statute. Whatcom County v. City of Bellingham, 128 Wn.2d 537, 546, 909 P.2d 1303 (1996). But if a statute is susceptible to more than one meaning or reasonable interpretation, we conclude that it is ambiguous and, thus, in need of construction to effect the intent of the legislature within the context of the entire statute. State v. Tili, 139 Wn.2d 107, 115, 985 P.2d 365 (1999); Whatcom County, 128 Wn.2d at 546.
84 Wn. App. 290, 294, 929 P.2d 445 (1996).
In construing an ambiguous statute, we attempt to give effect to all its language so that no portion is rendered meaningless or superfluous. Whatcom County, 128 Wn.2d at 546. If possible, we will harmonize the provisions of an act to ensure proper construction of each provision. State v. Pesta, 87 Wn. App. 515, 521, 942 P.2d 1013 (1997). Courts seek to avoid strained, unlikely, or unrealistic consequences. Pesta, 87 Wn. App. at 521.
Former RCW 71.09.060 (1998) authorizes a court to commit a person determined to be a SVP beyond a reasonable doubt. Former RCW 71.09.020 defines `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 which makes the person likely to engage in predatory acts of sexual violence if not confined in a secure facility.' Former RCW 71.09.020(1) (emphasis added). The statute does not define `crime of sexual violence,' but it defines `sexually violent offense' to include a number of different offenses. Former RCW 71.09.020(6).
Because juvenile offenses are not crimes, former RCW 71.09.020(1) is ambiguous as to whether its reference to `crimes of sexual violence' includes juvenile offenses. See Weaver, 84 Wn. App. at 294. But RCW 71.09.030 contemplates making SVP determinations based on juvenile offenses. Specifically, it provides that
[w]hen it appears that . . . (2) a person found to have committed a sexually violent offense as a juvenile is about to be released from total confinement on, before, or after July 1, 1990 . . . and it appears that the person may be a sexually violent predator, the prosecuting attorney of the county where the person was convicted or charged or the attorney general if requested by the prosecuting attorney may file a petition alleging that the person is a `sexually violent predator' and stating sufficient facts to support such allegation.
RCW 71.09.030 (emphasis added).
Further, the Washington Supreme Court addressed the admission of juvenile offender history in this context and concluded that juvenile offenses are relevant to SVP determinations. In re Personal Restraint of Young, 122 Wn.2d 1, 857 P.2d 989 (1993) (superceded by statute on other grounds). The Young court held that the legislature intended `to include prior juvenile adjudications within the scope of permissible proof at sex predator proceedings,' as indicated by its use of the word `offense.' 122 Wn.2d at 54 (statute requiring HIV testing for persons `convicted of a sexual offense' includes juveniles although, technically speaking, juveniles are not `convicted' of crimes, but rather `adjudicated' to have committed offenses) (citing In re Juveniles A, B, C, D, E, 121 Wn.2d 80, 87, 847 P.2d 455 (1993)); see also In re the Dependency of Q.L.M, 105 Wn. App. 532, 536, 20 P.3d 465 (2001) (`The Legislature has included juvenile sex offenders in the group subject to commitment as sexually violent predators.') (citing RCW 71.09.030).
Thus, the trial court did not err in considering St. John's juvenile offenses as proof that he was a SVP, under former RCW 71.09.020.
II. LRA to Confinement
St. John also claims that the trial court violated his constitutional right to equal protection when it refused to `fully consider' a LRA to confinement. Specifically, he argues that it was error to exclude a portion of Fielding's testimony on this subject.
The State argues that we should not consider St. John's claim of error because at trial he failed to make an offer of proof describing the testimony Fielding intended to give. `Under Rule of Evidence 103(a)(2), a party may not challenge a trial court's ruling excluding evidence unless `the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked." Adcox v. Children's Orthopedic Hosp. Med. Ctr., 123 Wn.2d 15, 26, 864 P.2d 921 (1993).
St. John argues that Fielding was going to testify about `the mechanics of a Lessor [sic] Restrictive Alternative in the form of a group home.' Br. of Appellant at 7. The trial court stopped Fielding's testimony after St. John asked: `Now, these group homes, can you describe how they operate?' Report of Proceedings (RP) (September 26, 2001) at 43. Because we are able to determine the nature of the excluded testimony from the question asked, we will consider St. John's argument on the merits.
The trial court lacks statutory authority to consider court ordered LRAs before a person has been committed as a SVP to a secure facility. See former RCW 71.09.060(1) (directing that a person `shall' be committed to a secure facility if found to be a SVP). But a person may petition for a court ordered LRA after commitment. See former RCW 71.09.090 (1995) (authorizing the secretary to allow a committed SVP `to petition the court for conditional release to a less restrictive alternative or unconditional discharge').
In In re Detention of Brooks, the Supreme Court considered whether this statutory prohibition violated equal protection. 145 Wn.2d 275, 36 P.3d 1034 (2001). It concluded that because the court could consider LRAs at commitment trials for the mentally ill under chapter 71.05 RCW, it violated equal protection to deny this option to persons committed as SVPs under chapter 71.09 RCW. Brooks, 145 Wn.2d at 292.
The Supreme Court revisited its Brooks decision in In re Detention of Thorell, 149 Wn.2d 724, 72 P.3d 708 (2003). The court ruled in Thorell:
[D]ifferentiating between LRAs for those involuntarily committed under chapter 71.05 and the SVPA is a rational means to achieve . . . legitimate objectives. . . . We conclude this constitutes a rational basis to restrict LRAs in SVP proceedings to those the legislature has found appropriate for the treatment of SVPs. We hold that this provision does not violate equal protection principles.
149 Wn.2d at 750. Thus, the Supreme Court overruled Brooks to the extent that it conflicts with the holding of Thorell.
Consequently, the trial court did not err in declining to hear Fielding's testimony about a group home alternative to detention in a secure facility. We affirm.
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 pursuant to RCW 2.06.040, it is so ordered.
ARMSTRONG, J., and QUINN-BRINTNALL, A.C.J., concur.