Opinion
No. 58306-9-I.
March 3, 2008.
Appeal from a judgment of the Superior Court for Snohomish County, No. 91-2-01736-9, Gerald L. Knight, J., entered April 20, 2006.
Affirmed by unpublished per curiam opinion.
A person committed as a sexually violent predator (SVP) is not
entitled to an evidentiary hearing at an annual review unless there is probable cause to believe that
the person's condition has so changed that: (i) He or she no longer meets the definition of a sexually violent predator; or (ii) conditional release to a proposed less restrictive alternative would be in the best interest of the person and conditions can be imposed that would adequately protect the community.
RCW 71.09.090(2)(a). Because the State presented an unrebutted, prima facie case that Louis Brock has not "so changed," we affirm the court's order denying him a full evidentiary hearing and continuing his commitment as a sexually violent predator.
FACTS
Louis Brock, who is now in his mid-fifties, has a history of violent sexual assaults going back to his teens. Three of his victims were in their late 70's.
In 1991, following a jury trial, Brock was committed as a se xually violent predator. This appeal arises from his 2006 annual review. Psychologist Paul Spizman filed a report for the annual review that recommended Brock's continued commitment. The court held a show cause hearing to determine whether a full evidentiary hearing was warranted. Brock submitted no evidence and offered no alternative release or treatment plans. The court concluded that the State had carried its burden and that there was no basis to hold an evidentiary hearing on whether Brock's condition had "so changed." Brock appeals.
DECISION
A person committed as an SVP has a right to an annual review and show cause hearing on his or her status. At the show cause hearing, the trial court must determine
whether probable cause exists to warrant a hearing on whether the person's condition has so changed that: (i) He or she no longer meets the definition of a sexually violent predator; or (ii) conditional release to a proposed less restrictive alternative would be in the best interest of the person and conditions can be imposed that would adequately protect the community.
RCW 71.09.090(2)(a) (emphasis added). The State bears the initial burden of presenting a prima facie case that the committed person has not "so changed." RCW 71.09.090(2)(b), (c). To carry that burden, the State must present evidence that "(1) the prisoner still has a mental abnormality or personality disorder, i.e., the prisoner has not `so changed,' and (2) this mental abnormality or personality disorder will likely cause the prisoner to engage in predatory acts of sexual violence if conditionally released to a less restrictive alternative or unconditionally discharged." In re Det. of Petersen, 145 Wn.2d 789, 798, 42 P.3d 952 (2002). If the State fails to carry its burden, or the committed person establishes probable cause to believe that the person's condition has "so changed," then the person is entitled to a full evidentiary hearing. RCW 71.09.090(2)(c). A trial court's decision about whether evidence meets these standards is reviewed de novo. In re Petersen, 145 Wn.2d at 799.
Brock contends the superior court erred in concluding that the State presented a prima facie case at the show cause hearing and that he is not entitled to a full evidentiary hearing. We disagree.
Brock also agues that 2005 amendments narrowing the criteria for a full evidentiary hearing are unconstitutional and therefore cannot be applied to him. See RCW 71.09.090(4). Because we conclude that Brock was not entitled to an evidentiary hearing, even in the absence of those amendments we need not reach his constitutional claim.
The State's case rested on a detailed report prepared by Dr. Spizman for Brock's annual review. In preparing the report, Dr. Spizman interviewed staff and reviewed their notes, Brock's treatment plan, psychological evaluations, progress notes, behavioral management reports, and any incident reports. He also interviewed Brock and requested that he help clarify his current sexual interests through polygraph and plethysmograph testing. Brock declined to participate in further testing.
The report states that Brock experienced a violent and sexually dysfunctional childhood. As he moved into adulthood, he committed a series of violent sexual assaults against elderly women that resulted in his commitment as an SVP. The commitment evaluation listed diagnoses of "Paraphilia, Not Otherwise Specified (NOS)," "Antisocial Personality Disorder," and "Alcohol Dependence."
A 1996 evaluation noted Brock's minimal arousal during plethysmograph testing but also listed several disturbing admissions he made during a polygraph. He admitted "that something he does not quite understand takes hold of him and that his arousal can be affected by his level of rage and his tendency to be violent because he has been shaped and scripted into this kind of behavior at a very young age with abuse, neglect and the actual witnessing of his father beating and raping a 12-year-old female child." He also admitted witnessing and perpetrating extreme violence against animals. Subsequent evaluations performed for annual reviews in 1997, 1999, and 2000 all concluded that Brock still met the criteria for commitment.
In assessing Brock's current status, Dr. Spizman noted some improvement in his behavior, including his apparent abstinence from alcohol and positive reports from staff. But he also noted that a May 2005 addendum to Brock's behavior plan was necessary "to assist Mr. Brock in learning to manage his anger and aggressive attitude." With this caveat, Dr. Spizman concluded that Brock appears to be "largely able to manage problematic aspects of his [antisocial] personality at this time."
Dr. Spizman's opinion regarding the current status of Brock's paraphilia and sexual deviancy was less favorable. He noted that Brock largely denied the sexual aspect of his assaults and had discontinued sex offender treatment. Brock "was unable to demonstrate insight into his documented paraphilic behaviors." When asked about masturbation, Brock gave inconsistent responses of three times in two years, and two or three times a week. He claimed to have no sexual interest in elderly women, but stated that "`they are easy victims' (such as for robbery)." He also refused Dr. Spizman's request to interview Brock's significant other, in part because Dr. Spizman had previously written negative things about him.
Dr. Spizman acknowledged that "Brock presents a difficult diagnostic picture" and that "it is difficult to evaluate whether he displays ongoing arousal to non-consenting sex." Nevertheless, Dr. Spizman concluded that "given the frequently chronic nature of a paraphilia, the above information, and [the fact] that he has not demonstrated significant change in treatment, the paraphilia is still assumed to be present. Were he to participate in physiological testing, it could help clarify whether or not this is an appropriate diagnosis."
Regarding the risk of reoffense, Dr. Spizman noted that Brock is in the highest risk category and that, within 15 years, 52 percent of persons in that category will be convicted of a new sexual offense, while 59 percent will be convicted of a new violent offense. Dr. Spizman acknowledged that these statistics can overestimate the risk for offenders over 50. Since Brock was 54 at the time of his annual review, his risk of reoffense would have to be determined by looking at his "dynamic risk factors."
Dr. Spizman noted that Brock appeared to be managing several dynamic risk factors, including social rejection/loneliness, deviant sexual interests, hostility toward women, substance abuse, and impulsivity, albeit in the less challenging prison environment. But Brock also demonstrated noncooperation with supervision by refusing to participate in sexual deviancy testing. In the absence of such cooperation, there was no reason to believe that his deviant sexual interests had changed. He also continued to demonstrate some difficulty managing his hostilities, a risk factor of
particular concern since his offenses "appear to be motivated more by hostility and anger than entitlement." Finally, Brock demonstrated a dysfunctional thinking style due to his inability to acknowledge the sexual nature of his offenses. This prevents him "from gaining a full understanding of his risk factors, and [the] ability to manage them." Dr. Spizman stated that until Brock learns to manage his risk factors, "he will likely end up in the same cycle of assaultive behavior as before if unconditionally released." He concluded that "Brock has not demonstrated to this author that he has an understanding of his risk factors and ability to manage them," and that the combination of "Brock's mental abnormalities and personality disorder impairs his ability to control his behavior and places him at an elevated risk for sexually violent offenses."
Dr. Spizman's ultimate conclusion was that "Brock appears to continue to meet the definition of a sexually violent predator in that he suffers from a mental abnormality and/or personality disorder that renders him likely to engage in predatory acts of sexual violence if not confined to a secure facility." He further concluded that given Brock's lack of treatment and the less restrictive placement options potentially available to him, "conditional release is not in his best interest, nor could conditions be imposed that would adequately protect the community."
We conclude that Dr. Spizman's report presents a prima facie case that Brock's condition has not "so changed," that his condition will likely cause him to engage in predatory acts of sexual violence if conditionally or unconditionally released, and that an evidentiary hearing is not warranted. See In re Det. of Jacobson, 120 Wn. App. 770, 86 P.3d 1292 (2004).
Brock argues, however, that the report did not make out a prima facie case because Dr. Spizman merely assumed that the requisite mental abnormality still existed. We disagree. Dr. Spizman's report established that Brock had a longstanding, untreated mental abnormality, i.e., paraphilia NOS, that is typically chronic in nature. Dr. Spizman concluded to a reasonable degree of medical certainty that Brock still suffers from that mental abnormality. The State thus made out a prima facie case. See In re Det. of Jacobson, 120 Wn. App. at 781-84 (noting that while Dr. Spizman stated his conclusions were difficult to make without more contact with Jacobson, State nevertheless made out prima facie case because Dr. Spizman supported his conclusions with, among other things, Jacobson's lack of participation in treatment for disorders that tend to be chronic and lifelong).
To the extent Brock contends that caveats or hesitations in Dr. Spizman's report render it insufficient, we refer him to our contrary conclusion in In re Jacobson, 120 Wn. App. 770 (trial court's conclusion that "caveats and hesitations" in report rendered it insufficient as prima facie proof amounted to improper weighing of the evidence or credibility of expert).
Brock also argues that the evidence showed he had his antisocial personality traits under control. But this is only partially true. The evidence showed that, while Brock "appears . . . largely able to manage problematic aspects of his [antisocial] personality," he still has difficulty managing his hostility. In any event, nothing in the record indicates that the improvement in Brock's antisocial personality disorder reduced his risk of reoffending. To the contrary, Dr. Spizman concluded that Brock was still an SVP and was still likely to reoffend despite his gains in managing his antisocial behavior.
Finally, Brock claims there was insufficient proof that his mental abnormality is likely to result in predatory acts of sexual violence if he is conditionally or unconditionally released. The actuarial evidence indicated a 52 to 59 percent risk of being convicted of a new offense within 15 years, depending on whether the offense was sexual or violent. Since this risk reduces after the age of 50, Dr. Spizman looked to Brock's dynamic risk factors for a clearer picture of his risk level. As noted above, he concluded that Brock still did not demonstrate an adequate understanding of and ability to manage his risk factors and was therefore likely to reoffend. This evidence was sufficient.
Affirmed
FOR THE COURT: