Opinion
No. 53143-3-I
Filed: June 6, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 00-2-28949-9. Judgment or order under review. Date filed: 09/04/2003. Judge signing: Hon. Sharon Armstrong.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, 1511 Third Avenue, Suite 701, Seattle, WA 98101.
Cheryl D Aza, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Counsel for Respondent(s), Brooke Elizabeth Burbank, King Co Pros Aty Ofc W554, 516 3rd Ave, Seattle, WA 98104-2385.
Prior to his release from prison, the state sought to have Daniel Audett committed as a sexually violent predator (SVP) under chapter 71.09 RCW. In addition to the psychological evaluation allowed for in chapter 71.09 RCW, the state requested that Audett submit to a CR 35 mental examination. The trial court granted the request. A jury found that Audett was an SVP. Audett claims that the CR 35 examination was in error because it is inconsistent with chapter 71.09 RCW. He also contends that the evidence at his commitment trial was insufficient to show he is an SVP. We agree that the CR 35 examination was improper, and hold that the defense expert's testimony must thus be excluded. As a result, the evidence offered at trial was insufficient to show Audett is an SVP.
FACTS
In September 1993, Daniel Audett was convicted of two counts of first degree attempted kidnapping with sexual motivation. The counts stemmed from an incident in August 1992 when Audett met two young sisters outside a fast food restaurant. While talking to the girls, Audett sat on a bench with his legs spread, knowing he was wearing only loose-fitting swim shorts, and exposed his penis to the girls. Audett said he would give the girls money to buy food at the restaurant if they would walk down to the beach with him. The girls agreed and went inside to buy the food.
Restaurant employees became suspicious because the girls had not had any money when they came in the restaurant earlier. After the girls told the employees who had given them the money, one employee called the police. This was not Audett's first brush with the law. In 1981 Audett pleaded guilty to lewd conduct in Snohomish County for exposing his penis to a woman. Audett was convicted in 1987 of second degree sexual abuse of a minor in Alaska. The charge arose from an incident with a 10-year-old girl invited to baby-sit for Audett's son. While serving time for that offense, Audett was charged with first degree sexual abuse of a minor in connection with conduct towards his brother's 11-year-old step-daughter. Audett pleaded no-contest to that charge. After his release from prison in 1991, Audett moved to King County.
Audett was sentenced to 120 months in prison for the 1993 conviction. Four days before his scheduled release in November 2000, the state filed a petition alleging that Audett was a sexually violent predator (SVP) under chapter 71.09 RCW. In preparing for trial, the state filed a motion to compel Audett to participate in a CR 35 evaluation. The evaluation was to be performed by Dr. Leslie Rawlings, a psychologist and sex offender treatment provider. Dr. Rawlings had previously reviewed Audett's records and preliminarily concluded that Audett was a sexual predator. Over Audett's objections, the trial court granted the CR 35 motion, and Dr. Rawlings interviewed Audett.
The record contains both Dr. Rawlings' report and the report of Dr. Thomas Seymour, another psychologist who reviewed Audett's records. Neither Audett nor the state has claimed that these reports independently provide a basis for finding that Audett was an SVP, or even that these reports were submitted as evidence to the jury. However, even if the reports were admitted into evidence, in the absence of Dr. Rawlings' testimony they do not prove that Audett had a mental abnormality that caused him to have serious difficulty controlling his behavior.
At trial, Dr. Rawlings testified that, in his professional opinion, Audett was more likely than not to sexually re-offend if released, and that Audett had serious difficulty controlling his behavior. Audett's expert, Dr. Howard Barbaree, testified that Audett's risk of re-offense was less than 50 percent and that Audett did not suffer from volitional impairment with respect to his sex offenses. The jury found that Audett was an SVP. Audett appeals.
The jury was unable to come to a unanimous decision as to whether a less restrictive alternative to confinement was appropriate. The case was stayed pending the decision in In the Matter of the Detention of Thorell, 149 Wn.2d 724, 72 P.3d 708 (2003). After the Thorell decision came out, the trial court denied Audett's motion for a new trial. Since Audett has not appealed this aspect of the case, we do not address it here.
ANALYSIS
I. CR 35 Examination
Audett contends that the trial court erred in ordering him to submit to a CR 35 mental examination. He notes current state Supreme Court precedent that holds that 'the mental examination by the State's experts of a person not yet determined to be a sexually violent predator is limited to the evaluation required under RCW 71.09.040(4).' In the Matter of the Detention of Williams, 147 Wn.2d 476, 491, 55 P.3d 597 (2002). Thus, Audett contends, reversal is required. The state has not responded to Audett's claims regarding the propriety of the mental examination. We agree that the CR 35 examination was improper.
A proceeding under chapter 71.09 RCW is civil in nature. In the Matter of the Pers. Restraint of Young, 122 Wn.2d 1, 23, 857 P.2d 989 (1993). Under CR 35, when a party's mental condition is in controversy, the trial court may order the party to submit to a mental examination by a physician or a psychologist, but only on a showing of good cause. The civil rules govern all civil proceedings, except where inconsistent with rules applicable to special proceedings. CR 81. Proceedings under chapter 71.09 RCW are considered special proceedings. In the Matter of the Detention of Mathers, 100 Wn. App. 336, 340, 998 P.2d 336 (2000).
Williams is the controlling case in this area. In that case, the Court noted that chapter 71.09 RCW provides for an evaluation when the probable cause determination is made, and an annual RCW 71.09.070 evaluation after the individual has been committed. Williams, 147 Wn.2d at 490. Other than these provisions, the statute is silent about mental examinations during discovery. Williams, 147 Wn.2d at 490. The Court cited the principle that to express one thing in a statute implies the exclusion of the other, and held that, '[i]n the absence of such statutory language for pretrial discovery, it can be inferred that the Legislature did not intend for the State to conduct such evaluations before commitment.' Williams, 147 Wn.2d at 491. Thus, Williams established that CR 35 examinations are improper in chapter 71.09 RCW proceedings.
But the Williams Court did not answer the precise question before the court here, i.e., the retroactivity of its decision. The trial court signed the order requiring Audett to submit to a CR 35 mental examination on June 21, 2001, before the Supreme Court decided Williams. The Court of Appeals decision in that case, In the Matter of the Detention of Williams, 106 Wn. App. 85, 22 P.3d 283 (2001) was still in effect. The Court of Appeals held that a CR 35 examination was not inconsistent with chapter 71.09 RCW. Williams, 106 Wn. App. at 94-95. However, in reversing that decision, the Supreme Court did not specifically address whether a CR 35 examination ordered before its decision was permissible.
The issue of retroactivity was explicitly addressed by Division Two in In the Matter of the Detention of Meints, 123 Wn. App. 99, 96 P.3d 1004 (2004). In Meints, the court held that when the Supreme Court interprets a statute or court rule for the first time, we presume that the interpretation is effective from the date of the statute or rule's enactment. Meints, 123 Wn. App. at 105. The court relied on Overton v. Economic Assistance Auth., 96 Wn.2d 552, 558, 637 P.2d 652 (1981) ('[W]here [the Supreme C]ourt has not previously interpreted the statute to mean something different and where the original enactment was ambiguous such to generate dispute as to what the legislature intended, the subsequent amendment shall be effective from the date of the original act, even in the absence of a provision for retroactivity.'), and City of Seattle v. Guay, 150 Wn.2d 288, 300, 76 P.3d 231 (2003) (rules of statutory construction apply with equal force to interpretations of court rules). Meints, 123 Wn. App. at 105. Accordingly, the court held that the Williams interpretation controlled and the trial court erred in ordering the examination. Meints, 123 Wn. App. at 105.
We note, however, that there are two other cases that reached a different result: In the Matter of the Detention of Smith, 117 Wn. App. 611, 72 P.3d 186 (2003), and In the Matter of the Detention of Halgren, 124 Wn. App. 206, 98 P.3d 1206 (2004), both from Division One. In both cases, the CR 35 examination was ordered after the Court of Appeals decided Williams but before the Supreme Court reversed. Smith, 117 Wn. App. at 616-17; Halgren, 98 P.3d at 1212-13. Both the Smith and Halgren courts held that because the controlling law at the time allowed for the CR 35 examination, the examination was not in error. Smith, 117 Wn. App. at 617; Halgren, 98 P.3d at 1212-13.
We note Smith and Halgren because the facts in those cases are similar to the facts at hand. Audett's CR 35 examination was also ordered while the Court of Appeals decision in Williams was good law. In contrast, the CR 35 examination in Meints had been ordered before either Williams decision came out. Meints, 123 Wn. App. at 104-05. This timing was part of the Meints court's rationale for its decision, as there were two older cases finding CR 35 to be inconsistent with chapter 71.09 RCW before the first Williams decision. In the Matter of the Detention of Broer, 93 Wn. App. 852, 957 P.2d 281 (1998), and In the Matter of the Detention of Aguilar, 77 Wn. App. 596, 892 P.2d 1091 (1995). Meints, 123 Wn. App at 104-05. Thus, the Meints court reasoned, the controlling law at the time the order was issued indicated that the CR 35 order was in error. Meints, 123 Wn. App at 104-05.
However, the Meints court specifically stated that the more significant aspect of its holding was the retroactivity of the Supreme Court's interpretation of chapter 71.09 RCW in Williams. Meints, 123 Wn. App. at 105. Thus, the retroactivity reasoning in Meints controls this case, despite the factual differences. We adopt the Meints reasoning and hold that the Supreme Court's interpretation of chapter 71.09 RCW in Williams dates back to its enactment and thus controls. Accordingly, the CR 35 examination by Dr. Rawlings was in error.
II. Sufficiency of the Evidence
Audett asserts that he was erroneously committed as an SVP. He claims that the evidence produced at his commitment proceedings was insufficient to show that he was dangerous and that he had serious difficulty controlling his behavior. The state contends that Dr. Rawlings' testimony was sufficient to find that Audett was an SVP. In response, Audett argues that his CR 35 examination was improper, and thus, Dr. Rawlings' testimony based on the CR 35 examination must be excluded.
As we find that the CR 35 examination was improper, the evidence derived from that examination, including Dr. Rawlings' testimony, must be excluded. Dr. Rawlings reviewed Audett's records prior to the CR 35 examination, and had already concluded that Audett met the criteria for an SVP. The CR 35 examination did not change Dr. Rawlings' opinion. However, it is impossible to distinguish which of Dr. Rawlings' statements are based solely on his review of the records, which are based solely on the interview, and which are based on both. Thus, we must exclude all of Dr. Rawlings' testimony.
As Dr. Rawlings' testimony is excluded, the analysis then turns to whether there was sufficient remaining evidence to conclude that Audett was an SVP. However, the state has not responded to Audett's claims that the CR 35 examination was improper, nor has it undertaken any harmless error analysis. It is well-established that the court need not consider an argument unsupported by any citation to authority. Hardy v. Claircom Communications Group, Inc., 86 Wn. App. 488, 495 n. 4, 937 P.2d 1128 (1997). Here, however, the harmless error argument has not even been made, much less supported by authority. Accordingly, the court is not obligated to search the record for additional evidence that supports Audett's classification as an SVP. Nonetheless, we undertake an analysis to determine whether there is sufficient evidence to conclude that Audett is an SVP once Dr. Rawlings' testimony is excluded.
An SVP is an individual '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). The Washington Supreme Court has stated that a finding that a person is an SVP requires the coupling of 'proof of dangerousness with proof of an additional element, such as 'mental illness,' because the additional element limits confinement to those who suffer from an impairment 'rendering them dangerous beyond their control." In the Matter of the Detention of Thorell, 149 Wn.2d 724, 731-32, 72 P.3d 708 (2003), cert. denied, 541 U.S. 990, 124 S. Ct. 2015, 158 L. Ed. 2d 496 (2004) (citing Kansas v. Hendricks, 521 U.S. 346, 358, 117 S. Ct. 2072, 138 L. Ed. 2d 501 (1997)). Proof of the additional element requires that 'there must be sufficient evidence in the finding of mental illness to allow a rational trier of fact to conclude the person facing commitment has serious difficulty controlling behavior.' Thorell, 149 Wn.2d at 744-45. The proof of these elements is sufficient if, when viewed in the light most favorable to the state, a rational trier of fact could have found them beyond a reasonable doubt. Thorell, 149 Wn.2d at 744-45.
Thorell had not yet been decided at the time of Audett's commitment hearing. However, a United States Supreme Court case existing at the time of the hearing stated that 'there must be proof of serious difficulty in controlling behavior.' Kansas v. Crane, 534 U.S. 407, 413, 122 S. Ct. 867, 151 L. Ed. 2d 856 (2002). Thus, the jury was required to find that Audett had serious difficulty controlling his behavior.
To prove dangerousness, the state must show that the individual is 'likely to engage in predatory acts of sexual violence if not confined in a secure facility.' RCW 71.09.020(16). An individual is likely to engage in predatory acts of sexual violence if he more probably than not will engage in such acts. RCW 71.09.020(7). Thus, only a 51 percent likelihood that the person will engage in predatory acts of sexual violence is required. Once Dr. Rawlings' testimony is excluded, the remaining evidence is insufficient to show that Audett was dangerous. Dr. Barbaree and Dr. Rawlings both conducted actuarial assessments seeking to predict Audett's risk of re-offense. Dr. Barbaree used the Rapid Risk Assessment of Sex Offender Recidivism, the Static-99, the Sex Offender Risk Appraisal Guide, and the Violence Risk Appraisal Guide. On three of these four tests, Audett's risk of re-offending within 10 years was less than 50 percent. Dr. Barbaree further testified that, taking all of the tests and other risk factors into account, Audett's risk of re-offending was less than 50 percent. Other than Dr. Rawlings, no psychological expert testified for the state at trial. Viewing the evidence in the light most favorable to the state, the evidence is insufficient to support the finding that Audett was more likely than not to re-offend.
Because we find that the evidence is insufficient to support the finding that Audett was dangerous, we need not reach the question of whether there was sufficient evidence to support the finding that Audett had serious difficulty controlling his behavior.
Reversed and remanded for new commitment proceedings under chapter 71.09 RCW.
COX and BAKER, JJ., Concur.