Opinion
No. 52157-8-I
Filed: March 7, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 02-2-08011-1. Judgment or order under review. Date filed: 04/03/2003. Judge signing: Hon. Robert H Alsdorf.
Counsel for Appellant/Cross-Respondent, Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
David Bruce Koch, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Counsel for Respondent/Cross-Appellant, Jeffrey C Dernbach, King County Courthouse, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
Barbara A. Flemming, Attorney at Law, W 554 King Co Crthouse, 516 3rd Ave, Seattle, WA 98104-2385.
James Cronn was involuntarily committed under the Sexually Violent Predator (SVP) Act, Chapter 71.09 RCW, after the trial court found that Cronn suffered from multiple mental abnormalities and personality disorders, including pedophilia, a compulsive paraphilia, that Cronn had a past history of sexual deviancy in conjunction with his mental abnormalities, that such disorders made him likely to engage in predatory sexual violence if not confined to a secure facility, and that Cronn presented a high risk of re-offense if released. Cronn argues that the trial court's supplemental finding, entered a few days after its initial order, and stating that Cronn had `difficulty' controlling his behavior, rather than `serious difficulty' controlling his behavior, violates the standards established by Kansas v. Crane, 534 U.S. 407, 122 S. Ct. 867, 151 L. Ed. 2d 856 (2002) and In re Detention of Thorell, 149 Wn.2d 724, 72 P.3d 708 (2003), and requires reversal of his SVP commitment. We disagree. No separate finding regarding volitional control is required. Instead, to satisfy constitutional requirements the record must contain proof sufficient to persuade a trier of fact beyond a reasonable doubt that there is a link between the danger posed by the offender and his or her diagnosis. The record in this case contains overwhelming proof that due to his multiple mental abnormalities and personality disorders, Cronn has serious difficulty controlling his behavior. The trial court made all the necessary findings in the first instance. The superfluous finding that Cronn has `difficulty controlling his behavior' did not negate the earlier finding that due to his mental abnormalities, Cronn is at a high risk of re-offending if not confined to a secure facility.
FACTS
James Cronn was born in 1946. He is mildly mentally retarded. He began living at group homes around the age of 9. From an early age, Cronn demonstrated several behavioral problems, including aggression, noncompliance, and sexual misconduct. Cronn was placed at Rainier School when he was 15 years old. Early psychiatric evaluations indicated that Cronn had problems controlling his anger, and sadistic tendencies. He nearly drowned another resident at Rainier School after tormenting him for several hours. Cronn also showed signs of abnormal sexual behavior while at Rainier School.
In 1979, Cronn was arrested for the forcible sexual assault of a 12-year-old boy. The boy stated that Cronn had taken him from a bus stop, carried him to Cronn's home, and fondled his genitals. The charges were dismissed when Cronn was found to be incompetent. Within 7 months, Cronn sexually assaulted an 8-year old boy. Cronn confessed to this attack, and was charged with and convicted of indecent liberties, in 1981.
Cronn was sent initially to the Sexual Psychopathy Program at Western State Hospital where he was treated by Michael Comte, a psychotherapist and licensed sex offender treatment provider. During his sessions, Cronn admitted that he had sexually deviant fantasies of physically and sexually harming young boys and coercing them into sexual activities, and that he masturbated to these fantasies. Cronn was eventually terminated from the program at Western State because of his hostile, aggressive, and intimidating demeanor, rather than because of his intellectual limitations. His evaluations revealed that he was unable to display appropriate self-control. Cronn was sent to the Department of Corrections. He remained in prison until 1988. During his time at DOC, Cronn committed 50 serious infractions, most of which were for aggression, threats, or fighting. After Cronn's release in 1988, he was again evaluated by Mr. Comte. Cronn stated that he often masturbated to thoughts of young boys between the ages of 6 and 12. Cronn also admitted to sexually assaulting three boys while in Rainier School, and admitted that he had molested three boys, two aged 12, and a 6 year old.
Cronn was admitted to `In the Beginning' in 1988, an assisted living home for developmentally and physically disabled adults, where he lived for several years. This facility was later renamed Pioneer Place. According to Fern Caldwell, the home's manager, Cronn was generally well behaved and would walk out of the room when her small grandchildren were present. Jennifer Redpath, who began working in the home in 1991, testified that Cronn generally got along with the other residents. However, in 1996 Cronn assaulted a female employee at the home and was convicted for assault in the third degree with sexual motivation.
Cronn was placed at Aacres Landing Facility; a restricted, supervised home that provides intensive support for developmentally disabled clients who pose a risk to the community. As part of his community supervision conditions, Cronn was ordered to take regular polygraphs. Mr. Comte was again Cronn's therapist, and described him as highly resistive to treatment, rude, abrasive, and uncommunicative with others in his group treatment program. Staff reported concern about Cronn's mood swings, his aggression, his disarming of the alarm, and his sneaking out of his residence at night. In 1999, while Cronn was still under the conditions of community supervision, he admitted to his polygrapher that he had been watching `younger males and females' from his window at Aacres Landing, that he had been peeping at a neighbor through her windows in the hope of seeing her undressed, and that he had been masturbating to thoughts of these children and the neighbor. Cronn admitted that he had `sexual thoughts' of minor males and females between the ages of 4 and 7, as well as sexual thoughts about his neighbor. Cronn stated that his masturbatory thoughts were triggered by seeing children walk down the street. Based on this and Cronn's past history, Mr. Comte expressed concern that Cronn was going to commit a sexual assault.
The State filed a petition to have Cronn committed as a sexually violent predator. Prior to trial, Cronn was sent to the Special Commitment Center at McNeil Island, where he had temper outbursts and was aggressive and threatening toward staff and residents. By the time of trial in March of 2003, Cronn had developed a number of physical and mental ailments. He had been found incompetent, and a Guardian ad Litem (GAL) had been appointed. At Cronn's bench trial, Dr. Charles Lund, a psychologist and certified sex offender treatment provider, testified that Cronn suffered from pedophilia, a mental abnormality, with a particular attraction to males. Dr. Lund testified that Cronn also suffered from a psychotic disorder, alcohol abuse, mild mental retardation, and an anti-social personality disorder. Dr. Lund further stated that Cronn was at a very high risk to re-offend if not confined to a secure facility.
Dr. Lund testified that Cronn had a long history of noncompliance problems from his early childhood to the present, and that there is a direct link between a lack of compliance with general rules of behavior and the risk of sexual recidivism. Dr. Lund stated that Cronn's mild retardation did not predispose him to sexual violence. However, Dr. Lund opined that Cronn had extreme difficulty controlling his behavior, including his sexually deviant behavior, and that this was indicated by Cronn's tendency to respond to immediate circumstances in his environment rather than considering long-term impacts of his actions. Dr. Lund concluded that Cronn was more likely than not to commit predatory acts of sexual violence. Dr. Lund stated that Cronn's mental abnormality predisposed him to commit acts of sexual violence, and that Cronn's risk of re-offense was significantly greater than 50 percent for both a 7-year and 10-year follow-up period. Dr. Frederick Wise, a clinical psychologist, reviewed Cronn's criminal and psychiatric history and evaluations, and testified that Cronn was properly diagnosed with pedophilia. Dr. Wise also testified that predicting sexually violent behavior is difficult, but it is easier with pedophilia because it is a compulsive paraphilia to do a specific behavior. Dr. Wise testified that patients with a combination of pedophilia and developmental disabilities `do not significantly change' and require close supervision. He further stated that although generally accepted actuarial tests do not provide accurate measures for developmentally disabled persons, Cronn clearly presented a high risk of re-offense if released without supervision, and that Cronn met the criteria for commitment as a SVP. Dr. Wise also testified that he did not believe Cronn would ever progress enough in treatment to justify a less-restrictive treatment option. Anne Kenefick, Cronn's GAL, testified that Cronn had never acted out toward her. She also stated she had seen Cronn in close proximity to children, and that Cronn `didn't even seem to notice.' Dr. Frank Lee, a clinical psychologist and sex offender treatment provider from Colorado, interviewed Cronn and reviewed his case history. He testified that in light of Cronn's severe mental and psychiatric problems, including delusions, Cronn's focus was no longer sexual but was simply on day-to-day functioning. The trial court issued findings of fact and conclusions of law on April 3, 2003. The court summarized the testimonies of the various expert witnesses regarding Cronn's general history and history of sexual deviancy, pedophilia, antisocial personality disorder and psychosis, developmental disabilities and borderline retardation. The court found that Cronn's pedophilia is an underlying compulsive paraphilia and that Cronn's mental abnormality predisposes him to commit sexually violent acts. The court also found, based on Cronn's past history of sexual deviancy in conjunction with his mental abnormalities, that Cronn was at a significantly high risk of re-offense if released, and that Cronn had failed to benefit from treatment.
A number of mental health providers testified that Cronn was committable under RCW 71.05 because he was gravely disabled, exhibited psychosis and several physical ailments, and there was a serious risk of harm to himself or others if he were not confined. The court concluded that commitment under Ch. 71.05 would not provide the kind of treatment required for sexually violent predators.
The trial court concluded that Cronn had been convicted of a crime of sexual violence, had committed a recent overt act that created a reasonable apprehension of harm of a sexually violent nature, and also that Cronn suffered from `multiple mental abnormalities and personality disorders which make him likely to engage in predatory acts of sexual violence if not confined to a secure facility as defined in RCW 71.09.020(13).' Conclusion of Law 3, Clerk's Papers at 274. The court further noted that Cronn's long-term risk of sexually violent re-offense was separate from his possible commitment under RCW 71.05, and that Cronn had until the time of trial `declined to participate in any meaningful way in sexual deviancy treatment.' Conclusion of Law 10, Clerk's Papers at 275. The trial court concluded that the State had proven beyond a reasonable doubt that the defendant `fits all elements of the definition of a sexually violent predator under RCW 71.09.020(16).' Conclusion of Law 11, Clerk's Papers at 275. The written findings and conclusions were signed on April 3, 2003.
On April 14, 2003, the parties submitted a supplemental finding of fact regarding the issue of volitional control. The court signed the supplemental finding, nunc pro tunc, stating that Cronn had `difficulty controlling his behavior as a result of his multiple mental abnormalities and personality disorders.' Supplemental Finding of Fact, Clerk's Papers at 279.
Cronn appeals, claiming by finding that he merely had `difficulty controlling his behavior,' rather than `serious difficulty controlling his behavior' as required by the standards established by Kansas v. Crane, 534 U.S. 407, 122 S. Ct. 867, 151 L. Ed. 2d 856 (2002), and In re Detention of Thorell, 149 Wn.2d 724, 72 P.3d 708 (2003), the trial court applied the wrong standard, and thus the SVP commitment must be reversed.
DISCUSSION
We review questions of law de novo. Detention of Petersen v. State, 145 Wn.2d 789, 808, 42 P.3d 952 (2002) (Determination of the proper standard of review of sexually violent predator proceedings rests upon whether the question presented for review is one of fact, or a mixed question of law and fact).
In order to involuntarily commit a person under Washington's Sexually Violent Predator Act, the State must provide evidence to prove beyond a reasonable doubt that the person is a sexually violent predator. RCW 71.09.060(1). A SVP is `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.' RCW 71.09.020(16).
The United State Supreme Court in Crane, 534 U.S. 407, held that SVP involuntary commitment statutes satisfy due process so long as (1) the confinement takes place pursuant proper procedures and evidentiary standards; (2) there exists a finding of `dangerousness to one's self or to others'; and (3) the proof of dangerousness is `coupled . . . with the proof of some additional factor as a `mental illness' or `mental abnormality." Crane, 534 U.S. at 409-10 (citing Kansas v. Hendricks, 521 U.S. 346, 357-58, 117 S. Ct. 2072, 138 L. Ed. 2d 501 (1997)). Crane emphasized that involuntary commitment of an individual as a sexually violent predator requires a link between the mental disorder and the lack of ability to control behavior, such that there must be `proof of serious difficulty in controlling behavior.' Crane, 534 U.S. at 412-13. This proof is considered on the facts of each case. Id.
In In re Detention of Thorell, 149 Wn.2d 724, the Washington Supreme Court concluded that the Crane requirement of `proof of serious difficulty in controlling behavior' requires no separate finding to that effect. Rather, this proof can be included in the finding of mental abnormality as long as there exists some proof that the diagnosed mental abnormality has an impact on, or link with, the offender's ability to control his or her behavior. Thorell, 149 Wn.2d at 735-36. `It is the finding of this link, rather than an independent determination, that establishes the serious lack of control and thus meets the constitutional requirements for SVP commitment under Hendricks and Crane.' Thorell, 149 Wn.2d at 736.
Where the individual is not incarcerated for a sexually violent offense at the time the SVP petition is filed, due process requires the State to prove the current dangerousness of the individual by proving beyond a reasonable doubt that the individual committed a `recent overt act' as defined by the Sexually Violent Predator Act. RCW 71.09.020 (10) (previously RCW 71.09.020(5)); In re Young, 122 Wn.2d 1, 26, 857 P.2d 989 (1993), review denied, 152 Wn.2d 1007, 99 P.3d 896 (2004) (superseded by statute); U.S. Const. amends. V, XIV; Washington Const. art. 1, sec. 3.
Here, the trial court specifically found that Cronn had been convicted of a crime of sexual violence, that he had committed a recent overt act which created a reasonable apprehension of harm of a sexually violent nature, and that Cronn suffered from multiple mental abnormalities and personality disorders that made it likely for him to engage in predatory acts of violence if not confined to a secure facility. Cronn admits that the trial court's initial findings of fact and conclusions of law, standing alone, would be sufficient to commit him as a SVP under Chapter 71.09 RCW. However, he argues that the trial court's supplemental finding that Cronn only had `difficulty' controlling his behavior, rather than `serious difficulty' controlling his behavior, shows that the trial court applied the wrong standard to his commitment proceeding, in violation of Crane and Thorell, and that the commitment must be reversed. We disagree. This is not, as Cronn asserts, a due process violation. Cronn cites State v. Brown, 147 Wn.2d 330, 58 P.3d 889 (2002), which stands for the proposition that the omission of an element of a crime in jury instructions is a due process violation. However, as emphasized by Thorell, the requirement in a SVP commitment action that the offender have `serious difficulty' in controlling behavior does not require a separate finding to that effect. Thus, it is not an element that must be separately proven. What is critical, as Thorell and Crane emphasize, is some evidence that the diagnosed mental abnormality has an impact on, or link with, the offender's inability to control his or her behavior. `It is the finding of this link, rather than an independent determination, that establishes the lack of control and thus meets the constitutional requirements for SVP commitment under Hendricks and Crane.' Thorell, 149 Wn.2d at 736. The trial court found that link to exist, and the evidence overwhelmingly supports that finding. The later, superfluous finding did not negate the earlier finding or the validity of the proceeding. Moreover, the supplemental finding is consistent with the earlier findings. To say that a person has difficulty controlling behavior does not imply that the difficulty is not serious. And when read in conjunction with all the other findings, the supplemental finding, although superfluous, can only mean that the difficulty is serious, due to its link with pedophelia and Cronn's other mental disorders.
Accordingly, we affirm.
AGID and BAKER, JJ., concur.