Opinion
No. 33604-9-II.
November 7, 2006.
Appeal from a judgment of the Superior Court for Clark County, No. 01-2-00713-4, John F. Nichols, J., entered July 6, 2005.
Counsel for Appellant(s), Nancy P. Collins, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA, 98101-3635.
David L. Donnan, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA, 98101-3635.
Counsel for Respondent(s), Malcolm Ross, Attorney General of Washington, 800 5th Ave Ste 2000, Seattle, WA, 98104-3188.
Melanie Tratnik, Attorney Generals Office/CJ Division, 800 5th Ave Ste 2000, Seattle, WA, 98104-3188.
Affirmed by unpublished opinion per Armstrong, J., concurred in by Bridgewater and Hunt, JJ.
Lenier Rene Ayers appeals his civil commitment as a sexually violent predator, arguing that (1) the State violated his constitutional rights to due process and to confront the witnesses when it played a videotaped deposition that he participated in by conference call, (2) the State failed to prove a recent overt act with evidence that he put his hand on a young girl's leg, (3) the trial court incorrectly focused on the victim's subjective perspective in finding a recent overt act, and (4) the State failed to prove that he suffered from antisocial personality disorder because it presented no evidence that the disorder started before Ayers turned 15 years of age, one of the diagnostic criteria. Finding no reversible error, we affirm.
FACTS
In 1991, the State convicted Lenier Rene Ayers of three sex offenses against young girls. In 2000, he violated probation by contacting a 14-year-old girl and a 16-year-old girl, resulting in charges of felony communicating with a minor for immoral purposes, stalking, and fourth degree assault. Ayers pleaded guilty to two counts of fourth degree assault.
The State then petitioned to commit Ayers as a sexually violent predator (SVP). Because the State had to prove that Ayers had committed a "recent overt act," it needed the testimony of the 16-year-old, E.H., one of the victims in the 2000 charges. But the State had difficulty locating her because she moved often, was living out-of-state, and was at times bedridden with Crohn's disease.
A debilitating inflammatory disease of the digestive tract.
In April 2005, the prosecutor contacted Ayers's counsel about scheduling a perpetuation deposition of E.H. On April 18, defense counsel's assistant emailed the prosecutor that the defense agreed to an April 29 deposition and that Ayers would waive the civil rule requirement of 20 days' notice for a video deposition. The State delivered a notice of the deposition to the defense on April 21. On April 29, the defense attorney told the prosecutor that Ayers, who was confined at the Special Commitment Center on McNeil Island, would not agree to a video deposition and wanted to be present.
The State moved for an order allowing the deposition, arguing that getting Ayers to Clark County for the deposition would require several hours of travel with security. Over Ayers's objection, the trial court authorized the videotaped deposition. Ayers listened to the deposition via conference call. He consulted with his counsel by telephone before the State's direct examination and again before cross-examination.
At trial, the State moved to play the video deposition in lieu of E.H.'s live testimony. Ayers objected to the use of the video based on improper notice of the video deposition, but stated that he did not object to the use of the deposition transcript. When the court stated that it would prefer to watch the video and that it would entertain any objections as the video was played, Ayers withdrew his objection. The State played the video deposition.
In the deposition, E.H. testified that she met Ayers in a park near her sister's apartment. Ayers offered beer to her and a friend and asked them their ages. When the girls said they were 16, he said something about "penitentiary chances." II Report of Proceedings (RP) at 164-65. E.H. got into Ayers's vehicle after he offered to buy the girls cigarettes. But she became concerned when Ayers got more aggressive. After he stopped at a convenience store and purchased cigarettes, she pretended to make a call on his cellular phone to get marijuana. Ayers asked her to go to his home to watch a movie. He also asked her to move closer to him in the truck. When she did, Ayers put his hand on her kneecap and moved it up to her inner thigh. He then drove to her sister's apartment, ostensibly to pick up the marijuana, where E.H. escaped.
In a written opinion, the trial court explained its finding of a recent overt act:
Ayers's actions created a reasonable apprehension of harm of a sexually violent nature in the mind of a young girl. [E.H.] was alone with an anti-social paraphiliac with an extensive history of sexually violent behavior and convictions, who states he is "taking penitentiary chances." With this information implied to [E.H.], Ayers then proceeds to put his hand on her inner thigh and works it toward her vaginal area consistent with his prior history of "feeling up" young girls.
III Clerk's Papers (CP) at 534. In later findings of fact and conclusions of law, the court said:
The Respondent's actions toward [E.H.] in July 2000 constitute a recent overt act, as that term is used in RCW 71.09.020(7) and (10); that is, they create a reasonable apprehension of harm of a sexually violent nature in the mind of an objective person who knows of the Respondent's history and mental condition.
IV CP at 662.
To prove Ayers's mental condition, the State called Dr. Dennis Doren. Dr. Doren diagnosed Ayers with "Paraphilia, Not Otherwise Specified (NOS), involving sexual attraction to adolescents (also known as Hebephilia); BiPolar I Disorder; Polysubstance Dependence; and Antisocial Personality Disorder." IV CP at 649. Dr. Doren supported his diagnosis of antisocial personality disorder with two incidents from Ayers's childhood, placement in juvenile detention for a fight with a girl at age 11 and a charge of assault with intent to commit bodily harm at age 14. The diagnosis requires proof that Ayers engaged in disorder misconduct before he was 15.
Ayers's expert, Dr. Richard Wollert, disagreed with Dr. Doren's diagnoses. Dr. Wollert stated that there was no evidence of an onset of conduct disorder before the age of 15.
The trial court found that Ayers's "Paraphilia NOS, involving sexual attraction to adolescents (Hebephilia), and Antisocial Personality Disorder, independently and in combination with each other, cause him serious difficulty controlling his sexually violent behavior." IV CP at 655. It found further that "the Respondent, as a result of his mental abnormality and/or personality disorder, is likely to engage in predatory acts of sexual violence if not confined in a secure facility." IV CP at 659.
The trial court concluded that Ayers was an SVP who had committed a recent overt act and ordered him civilly committed.
ANALYSIS I. Cross Examination
Ayers claims that the trial court violated his state and federal rights to confront the witnesses by admitting a videotaped deposition in which he was not physically face-to-face with the witness. Under Washington's Constitution, a criminal defendant has the right "to meet the witnesses against him face to face." Wash. Const. art. I, § 22. Under the Sixth Amendment to the United States Constitution, the State can use out-of-court testimonial statements only if the defendant has had an opportunity to cross-examine the witness. See Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). Accordingly, Ayers argues that he was entitled to be physically present at E.H.'s deposition.
A party may not claim error on appeal that was invited. State v. Henderson, 114 Wn.2d 867, 870-71, 792 P.2d 514 (1990). And Ayers invited any error in permitting the use of E.H.'s video deposition at trial. At the time of the deposition, Ayers objected to taking the video deposition without his presence as a violation of his confrontation rights. But he did not later object to playing the video at trial as a violation of his confrontation rights. Rather, he objected only to use of the video because of improper notice of the deposition. Ayers then withdrew his objection. Ayers has thus waived any error in the use of the video deposition at trial.
II. Recent Overt Act
To commit Ayers as an SVP, the State had to prove he had committed a "recent overt act." RCW 71.09.060(1). He claims two errors in the trial court's recent overt act finding: (1) the evidence is insufficient to support the finding, and (2) that the trial court applied the incorrect legal standard.
A. Sufficiency of the Evidence
Ayers contends that the evidence does not support the trial court's finding that "[b]ut for the actions of [E.H.], the Respondent would have completed his intended sexual molestation of [E.H.]." IV CP at 661. He also claims that the State failed to prove that putting his hand on E.H.'s leg involved sexually violent harm. In testing the sufficiency of the evidence, we ask whether viewing it in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628 (1980). We accept the truth of the State's evidence and draw all reasonable inferences from it in favor of the State. State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977).
The State can show a "recent overt act" by proving the defendant acted in a way that would create a reasonable apprehension of harm of a sexually violent nature "in the mind of an objective person who knows of the history and mental condition of the person engaging in the act." RCW 71.09.020(10). The State did not have to show what Ayers would have done had he not been interrupted. Nor did the State have to show that Ayers threatened or committed sexually violent harm. Rather, the State needed to prove only that Ayers's actual conduct created a reasonable apprehension of sexually violent harm. See In re Det. of Albrecht, 129 Wn. App. 243, 256-57, 118 P.3d 909 (2005), review denied, 157 Wn.2d 1003 (2006). In Albrecht, for example, the appellant offered a small boy 50 cents to follow him and attempted to grab the boy's hand. Albrecht, 129 Wn. App. at 249-50. Division Three of this court held that this created a reasonable fear of sexually violent harm because it was consistent with the grooming technique the appellant had used during his history of sexually molesting children. Albrecht, 129 Wn. App. at 257; see In re Det. of Hovinga, 132 Wn. App. 16, 24, 130 P.3d 830 (2006) (finding a recent overt act where respondent followed young girls around a department store while masturbating); In re Det. of Broten, 130 Wn. App. 326, 329, 122 P.3d 942 (2005) (holding that act of being at children's playground without a chaperone was sufficient evidence that defendant committed a recent overt act); State v. McNutt, 124 Wn. App. 344, 351-52, 101 P.3d 422 (2004) (holding that act of offering a minor beer and inviting her to engage in sex acts with him was sufficient evidence that defendant committed a recent overt act), review denied, 156 Wn.2d 1017 (2006).
The trial court found that Ayers "placed himself in an area where he knew he would come into contact with young girls," in violation of court ordered and treatment conditions; that he had unsupervised contact with two minors; that he was alone in his vehicle with E.H.; that he told her he wanted to take her into the mountains to smoke marijuana and watch movies; that he moved her closer to him and put his hand on the inside of her leg; that he worked his hand up her inner thigh before she slapped his hand away; that this behavior was "consistent with his prior pattern of sexually offensive conduct against minor girls"; and that he acknowledged that being with her exposed him to "penitentiary chances." IV CP at 660-61. It also found that Ayers's history included convictions for second degree child molestation, communicating with a minor for immoral purposes, and third degree child molestation. These facts support the trial court's finding that Ayers's conduct would have created a reasonable fear of sexually violent harm in the mind of an objective person who knew Ayers's history and mental condition. Accordingly, there was sufficient evidence of a recent overt act, even without the disputed finding as to what Ayers would have done if E.H. had not stopped him, and any error in that finding was harmless.
B. Legal Standard
Ayers next contends that because the trial court's written opinion emphasized E.H.'s perspective rather than an objective person's, it did not properly find this element proven beyond a reasonable doubt.
We review de novo a trial court's determination of the appropriate legal standard. State v. Thompson, 151 Wn.2d 793, 801, 92 P.3d 228 (2004). We presume that trial judges know and apply the law and that they properly discharge their official duties. See In re Pers. Restraint of Davis, 152 Wn.2d 647, 692, 101 P.3d 1 (2004); Kay Corp. v. Anderson, 72 Wn.2d 879, 885, 436 P.2d 459 (1967). The appropriate legal standard is not in dispute here, and Ayers has not shown that the trial court failed to apply it.
Ayers refers to two statements from the written opinion that he claims show the court applied an incorrect legal standard. In the first, the trial court wrote that "Ayers's actions created a reasonable apprehension of harm of a sexually violent nature in the mind of a young girl." III CP at 534 (emphasis added). According to Ayers, the italicized portion shows that the trial court analyzed the reasonableness aspect from E.H.'s perspective rather than from the objective perspective. In the second statement, the court noted that Ayers "implied to [E.H.]" that he was taking "penitentiary chances." III CP at 534. According to Ayers, this again shows that the court was analyzing "reasonable apprehension" from E.H.'s perspective. But in its formal legal conclusions, the trial court connected "reasonable apprehension" to the "mind of an objective person who knows of the history and mental condition of the person engaging in the act," the statutory language. RCW 71.09.020(10). And a court's formal findings and conclusions control over an oral or memorandum opinion. See Ferree v. Doric Co., 62 Wn.2d 561, 566-67, 383 P.2d 900 (1963).
Finally, Ayers claims the trial court's conclusions of law are boilerplate the State drafted and not actually considered by the court. The trial court concluded that:
[Ayers's] actions toward [E.H.] in July 2000 constitute a recent overt act, as that term is used in RCW 71.09.020(7) and (10); that is, they create a reasonable apprehension of harm of a sexually violent nature in the mind of an objective person who knows of the Respondent's history and mental condition.
IV CP at 662. Again, the court's detailed factual findings with regard to this incident adequately support the legal conclusion and militate against the notion that the trial court did not properly consider the law. We find no error.
III. Ayers's Mental Condition
To commit a person as an SVP, the State must prove that the person "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." RCW 71.09.020(16) (emphasis added). The trial court found that Ayers suffered from antisocial personality disorder. The parties' expert witnesses agreed that a necessary criterion of this disorder is an onset of some conduct disorder symptoms before age 15. Ayers claims that the State failed to prove this criterion.
A conduct disorder
involves a repetitive and persistent pattern of behavior in which the basic rights of others or major age-appropriate societal norms or rules are violated. The specific behaviors characteristic of Conduct Disorder fall into one of four categories: aggression to people and animals, destruction of property, deceitfulness or theft, or serious violation of rules."
American Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders 646 (4th ed. 1994) ("DSM IV").
The State's expert addressed the issue directly. Dr. Doren testified about two incidents which, he stated, together or independently would suffice. At age 11, Ayers was in juvenile detention for fighting with a girl; at age 14, he was charged with assault with intent to commit bodily harm and was released after counseling. Ayers's expert, Dr. Wollert, stated that there is no record of an onset of conduct disorder before age 15. And, citing Dr. Wollert's analysis of conduct disorder criteria, Ayers argues that two isolated incidents do not constitute "a pattern of repeated, persistent, and serious behavior problems over at least 12 months." Appellant's Reply Br. at 17-18. But antisocial personality disorder requires only "some symptoms" of conduct disorder before age 15. DSM IV at 646. Or, as Dr. Wollert phrased it, the "onset" has to begin before age 15. VII RP at 1036. Ayers has not explained why the two incidents Dr. Doren noted cannot constitute the onset of symptoms.
To the extent that Ayers challenges whether the incidents ever occurred, the trial court found Dr. Doren's testimony more reliable on this point. And we will not disturb the trial court's credibility determinations. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004); see also State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994) (findings to which error has not been assigned are verities on appeal.). Thus, Dr. Doren's testimony constitutes substantial evidence that Ayers suffered from antisocial personality disorder.
Moreover, the trial court found that Ayers also suffered from the mental abnormality paraphilia NOS, involving sexual attraction to adolescents (Hebephilia). The State needed to show that Ayers suffered from either a mental abnormality or a personality disorder, but not both. RCW 71.09.020(16). Ayers points to the trial court's repeated references to his "mental abnormality and/or personality disorder" as proof that the court viewed the two conditions as intertwining to make him likely to engage in predatory acts, such that neither condition would suffice on its own. Appellant's Br. at 41. But the use of "and/or" is more logically a reflection of the trial court's finding that the two conditions, "independently and in combination with each other, cause him serious difficulty controlling his sexually violent behavior." IV CP at 655 (emphasis added). In fact, the court was explicit that the two diagnoses "both independently and in combination, make(s) him likely to engage in predatory acts of sexual violence." IV CP at 661. Thus, the finding of paraphilia NOS satisfies the statutory requirement, regardless of whether substantial evidence supports the finding of antisocial personality disorder. And there is substantial evidence supporting the trial court's conclusion that Ayers is an SVP.
Affirmed.
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.
BRIDGEWATER, P.J. and HUNT, J., concur.