Opinion
No. 52731-2-I.
May 21, 2007.
Appeal from a judgment of the Superior Court for King County, No. 01-2-34325-2, Steven C. Gonzalez, J., entered July 29, 2003.
Affirmed by unpublished opinion per Schindler, J., concurred in by Appelwick, C.J., and Agid, J.
Gary Young contends his commitment as a sexually violent predator violates due process because the State did not prove beyond a reasonable doubt at trial that he committed a "recent overt act." Young also contends the State must prove a recent overt act beyond a reasonable doubt because he was released on parole a number of times while serving a 30-year sentence for rape and assault. In In re Detention of Marshall, 156 Wn.2d 150, 163, 125 P.3d 111 (2005), our supreme court held that due process does not require the State to prove a recent overt act beyond a reasonable doubt at trial if the individual is incarcerated for a sexually violent offense or an act that qualifies as a recent overt act when the State files a sexually violent predator petition. Because the State filed the petition while Young was serving his 1989 sentence for kidnapping and attempted kidnapping in the first degree, and the record supports the determination that the 1989 convictions were either sexually violent offenses or qualified as a recent overt acts, we affirm.
FACTS
In 1972, the State charged Gary Young with five separate counts of rape and one count of assault. The State alleged Young forced each of the five women to their car at knifepoint and forcibly raped them. For the assault count, the State alleged Young abducted a woman by knifepoint and threatened to kill her, but she escaped.
The State also charged Young with robbery and taking a motor vehicle without permission.
Young pleaded guilty to three counts of rape in the first degree and one count of assault in the second degree. The court imposed a 30-year indeterminate sentence. The court sentenced Young to a maximum term of 30 years on the three counts of rape and a concurrent ten year sentence on the assault.
After two and a half years of inpatient treatment in the sexual deviancy program at Western State Hospital, the Indeterminate Sentence Review Board (ISRB), on December 10, 1975, paroled Young to work release. The day he was released, Young entered a restricted area of the hospital and attempted to get in bed with the wife of a resident. Based on this incident, Young's parole was revoked on February 2, 1976.
Approximately five years later, on August 11, 1981, the ISRB paroled Young to work release and Young absconded. Young was arrested in 1982, charged with escape, and pleaded guilty. Thereafter the ISRB revoked his parole. On October 29, 1986, the ISRB paroled Young for a third time. Young absconded again. He was arrested in Florida in January 1988 and his parole was revoked.
On September 9, 1988, the ISRB paroled Young for the fourth time. While on parole, Young offered to help two women stranded by the side of the road with a disabled car. Young suggested the women get into his van to stay warm. When the two women refused, Young grabbed one of the women, pulled out a knife, held it to her crotch, and said "he would put his knife in her vagina and slice her clear up to her stomach if they did not get in the van." The two women were able to distract Young and escape. When Young was arrested, he said he had been drinking and did not remember what happened.
Young was charged with kidnapping and attempted kidnapping in the first degree. A jury convicted Young as charged. In May 1990, the court imposed a 154-month sentence for kidnapping in the first degree and a concurrent 121-month sentence for attempted kidnapping in the first degree. The court ordered that Young serve the 154-month sentence consecutively to his 1972 sentence for rape and assault.
Following the May 1990 sentencing, the ISRB revoked Young's parole.
Mr. Young has three counts of rape 1st degree and one count of assault in the 2nd degree, committed in 1972. He has been a danger to women since that time. He has been paroled to the streets three different times, each time with some hope that he will get control of a severe substance abuse problem, and be able to deal with life, and act in a pro-social manner. This last time, his revocation occurred because he was found guilty of assaulting one or more women in Spokane with a weapon. This is the same behavior that he exhibited in 1972, and that which the system has been striving to deal with. It is clear, beyond a shadow of a doubt, that Mr. Young has no intentions of dealing with either his substance abuse problem or his ingrained and unremittent violence against women. He is still assaulting women, and he is still using weapons. It is almost inconceivable that, from 1972 until now, Mr. Young appears to have remained greatly unchanged. At the revocation hearing, Mr. Young's attorney indicated that his problems were psychiatric, and that he belongs in a setting other than prison. It may be that Mr. Young's problems are psychiatric in nature, and it will be up to the Department of Corrections to investigate that and see if, indeed, that is true, and if help can be given him. At this point, public safety demands that Mr. Young be removed for an extensive period of time.
When the ISRB revoked Young's parole in July 1990, the expiration on his maximum term for the 1972 sentence was December 2003. In 1992, the ISRB administratively paroled Young on his 1972 sentence to allow him to begin serving the 154-month sentence for kidnapping and attempted kidnapping.
On December 4, 2001, the State filed a petition to civilly commit Young as a sexually violent predator under chapter 71.09 RCW. The petition alleged that Young was in prison serving his sentence for two counts of kidnapping and attempted kidnapping in the first degree, that Young suffers from a mental abnormality or personality disorder and that any one of the three rape convictions in 1972 was a sexually violent offense.
Young filed a motion to dismiss the petition on the grounds that the State failed to plead or prove a recent overt act justifying commitment. The court denied Young's motion to dismiss and ruled that "the 1990 convictions for kidnapping and attempted kidnapping in the first degree, for which the respondent was incarcerated at the time the petition was filed, are sexually violent offenses for [sic] recent overt acts." The court also ruled that the State established there was probable cause to believe Young was a sexually violent predator under RCW 71.09 and entered an order detaining him for evaluation and trial.
Prior to trial, Young moved for summary judgment arguing that due process requires the State to plead and prove a recent overt act to a jury beyond a reasonable doubt. The court denied the motion and ruled that Young's 1989 kidnapping and attempting kidnapping convictions "for which the respondent was incarcerated at the time the petition was filed, are sexually violent offenses and a recent overt act."
Extensive expert testimony was presented at trial. Dr. Richard Parkard testified on behalf of the State about his diagnosis of Young, Young's criminal history, Young's prior psychiatric evaluations, and the likelihood that Young would engage in future predatory acts of sexual violence. In Dr. Packard's opinion, Young suffers from "paraphilia, not otherwise specified (nonconsent)." According to the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), a person diagnosed with paraphilia has recurrent and intense sexually arousing fantasies, sexual urges, or behaviors involving nonconsenting persons. Dr. Parkard testified that Young's paraphilia centered around repeatedly approaching, coercing, and forcing women to engage in nonconsensual sex.
Dr. Lynn Saari diagnosed Young with paraphilia not otherwise specified, nonconsent and an antisocial personality disorder. DSM-IV defines an antisocial personality disorder as a pattern of behavior where the person repeatedly violates the norms of society and disregards other people's rights. Based on her diagnosis, as well as the results of different actuarial tests to determine the likelihood of Young, Dr. Saari concluded that Young was likely to engage in predatory acts of sexual violence if not confined to a secure facility.
The Chairman of the ISRB, John Austin, testified about Young's parole and revocation history, and the sentencing scheme before and after the 1984 Sentencing Reform Act. The State also introduced the testimony of the two victims in the 1989 kidnapping trial and Young's videotaped deposition testimony.
Austin testified that the ISRB had jurisdiction over Young until January 24, 2004. Austin also testified that the ISRB paroled Young in 1992 and internally transferred him so his prison time could count toward the 1989 SRA convictions. Austin testified, "[w]hat we did is make an internal transfer so he could begin serving his SRA sentence. He had the pre 1984 crimes he was under our jurisdiction for. When he came back, he came back for SRA crimes. In 1992 the Board transferred his time to start serving on the SRA offense."
In closing argument, Young's attorney conceded the State proved beyond a reasonable doubt that Young was convicted of a crime of sexual violence and that he suffers from a mental abnormality and a personality disorder. But Young's attorney argued that the State did not prove beyond a reasonable doubt that Young was likely to engage in acts of sexual violence if not confined to a secure facility. The jury found the State proved beyond a reasonable doubt that Young is a sexually violent predator. Young appeals.
ANALYSIS
Young contends the trial court's determination that his 1989 convictions for kidnapping and attempted kidnapping are sexually violent offenses or qualified as recent overt acts violates due process because the State must prove beyond a reasonable doubt to a jury that he committed a recent overt act. Whether due process requires the State to prove a recent overt act is a question of law that we review de novo. In re Detention of Albrecht, 147 Wn.2d 1, 51 P.3d 73 (2002).
The State asserts that this court should not address Young's due process argument because Young failed to object to the jury instructions and failed to assign error to the trial court's recent overt act finding. But under RAP 2.5(a), an appellant may raise an issue for the first time on appeal if the alleged error affects a constitutional right. RAP 2.5(a)(3); see also State v. McCullough, 56 Wn. App. 655, 657, 784 P.2d 566 (1990).
To civilly commit an individual under Washington's Sexually Violent Predator Act, chapter 71.09 RCW, the State must prove beyond a reasonable doubt that the individual is a sexually violent predator. A sexually violent predator is a 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." RCW 71.09.020(16). Under RCW 71.09.030(1), the State may file a petition to involuntarily commit an individual as a sexually violent predator if the individual was previously convicted of a "sexually violent offense and is about to be released from total confinement." To meet the requirements of due process, the petition must be based on a current mental illness and present dangerousness. Albrecht, 147 Wn.2d at 7-8.
If the individual is not in custody when the petition is filed, the State must also prove a "recent overt act" to establish current dangerousness and satisfy due process. In re Personal Restraint of Young, 122 Wn.2d 1, 41-42, 857 P.2d 989 (1993); RCW 71.09.060(1). A recent overt act is "any act or threat that has either caused harm of a sexually violent nature or creates a reasonable apprehension of such harm 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). "[T]he recent overt act requirement directly and specifically speaks to a person's dangerousness and thus satisfies the dangerousness element required by due process." Albrecht, 147 Wn.2d at 11.
But if the individual is incarcerated for a sexually violent offense or an offense that qualifies as a recent over act when the petition is filed, due process does not require the State to prove a recent overt act. In re Detention of Hendrickson, 140 Wn.2d 686, 697, 2 P.3d 473 (2000); RCW 71.09.060.
In Hendrickson, the court held that if a person is "incarcerated for a sexually violent offense . . . or for an act that would itself qualify as a recent overt act . . . due process does not require the State to prove further overt act occurred between arrest and release from incarceration." Hendrickson, 140 Wn.2d at 695. And in In re Detention of Marshall, 156 Wn.2d 150, 158, 125 P.3d 111 (2005), the court reiterated its holding from Hendrickson and approved of this court's decision in State v. McNutt, 124 Wn. App. 344, 101 P.3d 422 (2004), rev. denied, 156 Wn.2d 1017 (2006), that the question of whether an individual is incarcerated for a sexually violent offense or an offense that qualifies as a recent overt act is a question for the court, not for the jury.
Young argues that the State must prove beyond a reasonable doubt at trial that the 1989 kidnapping and attempted kidnapping convictions meet the legal standard of a recent overt act. Young claims that the trial court's determination that these convictions were sexually violent offenses or recent overt acts violated due process by eliminating the need to prove current dangerousness beyond a reasonable doubt at trial. By approving of this court's holding in McNutt, Marshall rejects Young's argument.
In McNutt, this court held that the determination of whether an offender's actions qualify as a recent overt act is a mixed question of law and fact for the court, not the jury. McNutt, 124 Wn. App. at 350. "The factual inquiry determines the factual circumstances of McNutt's history and mental condition, and the legal inquiry determines whether an objective person knowing those factual circumstances would have a reasonable apprehension of harm of a sexually violent nature resulting from the act in question." McNutt, 124 Wn. App. at 350.
In Marshall, the Court agreed with McNutt that if an individual is incarcerated when the sexually violent predator petition is filed, the question of "whether the confinement is for a sexually violent act or an act that itself qualifies as a recent overt act is . . . for the court, not a jury." Marshall, 156 Wn.2d at 158. The Court also held that in making this factual determination, the trial court should use the two step recent overt act analysis set forth in McNutt. Marshall, 156 Wn.2d at 158.
Here, there is no dispute that when the State filed the petition, Young was serving his 1989 sentence for kidnapping and attempted kidnapping in the first degree. The record supports the trial court's determination that the kidnapping and attempted kidnapping convictions were either sexually violent offenses or offenses that qualified as recent overt acts. The record shows Young threatened harm of a sexually violent nature when he tried to force the two women into his van. In particular, Young forcibly grabbed one of the women at knifepoint and threatened to slice her from her vagina "clear up to her stomach if they did not get in the van."
In the alternative, Young argues that the State had to prove a recent overt act beyond a reasonable doubt at trial because he was released on parole several times while serving his 30-year sentence for rape and assault. In Albrecht, the court held that the State must allege and prove a recent overt act when the individual has served his sentence, was living in the community and was in custody for violating the terms of his community placement. Albrecht, 147 Wn.2d at 11.
But here, unlike in Albrecht, when the petition was filed in December 2004, Young was incarcerated and serving his sentence on the 1989 kidnapping convictions and remained under the supervision of the ISRB on the 1972 convictions until January 2004. Although the ISRB released Young on parole into the community a number of times, each time his parole was revoked. Parole is "that portion of a person's sentence for a crime committed before July 1, 1984, served on conditional release in the community subject to board controls and revocation. . . ." RCW 9.95.0001(5). And in In re Detention of Kelley, 133 Wn. App. 289, 294, 135 P.3d 554 (2006), this court held that parole does not alter the unambiguous directive in Hendrickson that the State need not prove a recent overt act.
In Kelley, we also noted that requiring the State to prove a recent overt act would be an impossible standard in this circumstance because total confinement prevents such acts from occurring. Kelley, 133 Wn. App. at 294.
On this record, we conclude the State was not required to plead or prove a recent overt act to a jury beyond a reasonable doubt.
CONCLUSION
Marshall squarely rejects Young's argument that the State must prove a recent overt act beyond a reasonable doubt to a jury when the defendant is in total confinement. The trial court did not err in ruling that Young's convictions for kidnapping in the first degree and attempted kidnapping in the first degree were either sexually violent offenses or recent overt acts. And, although Young was temporarily released on parole several times, when the sexually violent predator petition was filed he was in total confinement on his 1989 conviction for kidnapping and attempted kidnapping in the first degree. We affirm.