Opinion
No. 30729-4-II
Filed: June 7, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No: 98-2-11149-1. Judgment or order under review. Date filed: 07/23/2003. Judge signing: Hon. James R Orlando.
Counsel for Appellant(s), David W McCuistion (Appearing Pro Se), P.O. Box 88600, Steilacoom, WA 98388-0647.
Counsel for Respondent(s), Sarah Sappington, Office of The Atty General, 900 4th Ave Ste 2000, Seattle, WA 98164-1076.
David W. McCuistion appeals a judgment that committed him as a sexually violent predator (SVP). He argues that Pierce County lacked authority to file an SVP petition while he was incarcerated for a Clark County crime that was not a sexually violent offense under RCW 71.09; that as applied to him, RCW 71.09 violates ex post facto, due process, and equal protection; that the evidence is insufficient to support findings of mental abnormality and serious inability to control his sexually violent behavior; that the State lacked authority to hire an expert witness; and that the trial court erred by denying his request for a fourth expert witness. We affirm.
On July 23, 1980, the State, acting through the Pierce County Prosecutor, alleged that McCuistion had sexually touched two girls, aged 5 and 8, and masturbated over one of the girls' beds. He was charged with attempted indecent liberties, pleaded guilty and received a five year deferred sentence.
In 1983, the State alleged that McCuistion approached a woman in a Safeway parking lot. He had a plaster cast on his arm, and his penis was outside his pants. He hit the woman in the back of her head with the cast until bystanders intervened. He was charged with second degree assault with intent to commit rape and pleaded guilty to third degree assault. His deferred sentence was revoked, and he was sent to prison on both the old and the new cause numbers.
Following his release from prison, the State alleged that McCuistion had made obscene telephone calls to, and threatened to rape and kill, another woman. He was charged and convicted of telephone harassment and sentenced in June 1987 to serve a year in jail.
On February 4, 1988, McCuistion assaulted another woman. While drinking, he had seen the lights on in her house, gone to the door, and asked to use the bathroom. While inside, he had pushed her to the ground and choked her until interrupted by her 10-year-old son. In March 1988, he pleaded guilty to second degree assault and received six months in jail.
In 1989, McCuistion attempted to kidnap a 15-year-old girl. He pleaded guilty and was sent to prison until October 1992.
On April 25, 1993, McCuistion picked up a female hitchhiker in Clark County. They consumed alcohol, first at a bar and later at a park. At the park, McCuistion pushed her down, choked her from behind, hit her head against the ground, and raped her. He pleaded guilty to third degree rape and was given an exceptional sentence of 90 months.
On October 15, 1998, while McCuistion was still incarcerated on the 1993 Clark County case, the Pierce County Prosecutor petitioned to commit him as a sexually violent predator. Two weeks later, the court found probable cause and ordered that he be held at the Special Commitment Center on McNeil Island.
In November 1998, McCuistion moved for an expert at public expense, and the court appointed Dr. Hart. In December 1998, McCuistion moved for an additional expert at public expense, and the court appointed Dr. Novick. In December 1999, after the Attorney General (AG) had replaced the Pierce County Prosecutor, McCuistion indicated that he would not call either Dr. Hart or Dr. Novick, and he asked the court to appoint a third expert, Dr. Berlin. The court so ordered, but McCuistion dismissed Dr. Berlin before trial. On July 21, 2003, while pro se, McCuistion asked the court to appoint yet a fourth expert at public expense. This time, the court denied his request.
On September 8, 2003, a bench trial commenced. McCuistion claimed that the State lacked authority to have its expert, Dr. Packard, evaluate his records and testify at trial. McCuistion also claimed that RCW 71.09 was unconstitutional as applied to him, and that the Pierce County Prosecutor lacked authority to petition for his commitment. The trial court denied these claims and, after hearing from McCuistion and Dr. Packard, ordered that McCuistion be committed as a sexually violent predator. The court later entered Findings of Fact and Conclusions of Law, and this appeal followed.
McCuistion filed a `Motion to Vacate and Dismiss the Petition under RCW 71.09.' In his supporting memorandum, McCuistion raised arguments similar to those he makes on appeal. McCuistion does not assign error to the court's denial of his motion to vacate.
I.
McCuistion argues on appeal that the Pierce County Prosecutor lacked authority to petition for his commitment. He claims that the only county with power to file a petition is the one `which has sent the offender to be confined within the Department of Corrections for the crimes for which the offender is presently convicted and incarcerated' or, in other words, that `this last sentencing county would be the only county with jurisdiction.'
Br. of Appellant at 11.
To support this argument, McCuistion relies on RCW 71.09.025(1)(a)(i) and RCW 71.09.030(1). RCW 71.09.025(1)(a)(i) states: When it appears that a person may meet the criteria of a sexually violent predator as defined in RCW 71.09.020(1), the agency with jurisdiction shall refer the person in writing to the prosecuting attorney of the county where that person was charged, three months prior to: (i) The anticipated release from total confinement of a person who has been convicted of a sexually violent offense.
(Emphasis added.)
RCW 71.09.030 states:
When it appears that: (1) A person who at any time previously has been convicted of a sexually violent offense is about to be released from total confinement on, before, or after July 1, 1990; . . . or (5) a person who at any time previously has been convicted of a sexually violent offense and has since been released from total confinement and has committed a recent overt act; and it appears that the person may be a sexually violent predator, the prosecuting attorney of the county where the person was convicted or charged or the attorney general if requested by the prosecuting attorney may file a petition alleging that the person is a `sexually violent predator' and stating sufficient facts to support such allegation.
(Emphasis added.)
Nothing in this language refers only to the prosecutor that most recently charged and convicted an alleged SVP. Indeed, both RCW 71.09.030(1) and (5) seem expressly to refer to the prosecuting attorney of any county in which the alleged SVP was `at any time previously' convicted of a sexually violent offense. McCuistion having been previously convicted of such an offense in Pierce County, the prosecutor of that county had authority to petition for his commitment as an SVP.
II.
McCuistion argues that he was not committable when the State filed its petition. He seems to reason (1) that he could not be committed under RCW 71.09.030(1), because he was not then incarcerated for a sexually violent offense; and (2) that he could not be committed under RCW 71.09.030(5) because he was then incarcerated.
The first proposition is not correct. RCW 71.09.030(1) expressly authorizes the commitment of a person who at any time previously has been convicted of a sexually violent offense, and who is about to be released from total confinement. It does not, according to its plain terms, require that the previous conviction be the reason for the current confinement.
The second proposition is likewise incorrect. According to RCW 71.09.030(5), the State may commit an individual `who at any time previously has been convicted of a sexually violent offense and has since been released from total confinement,' if, `on the day [the] petition is filed, [the] individual is incarcerated for . . . an act that by itself would have qualified as a recent overt act.' McCuistion was previously convicted for attempted indecent liberties, which, according to RCW 71.09.020(15), is a sexually violent offense. According to RCW 71.09.020(10), 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.' When the State filed the petition at issue here, McCuistion was incarcerated for third degree rape, an act that qualifies as a recent `overt act.' Accordingly, McCuistion was committable under RCW 71.09.030.
In re Det. of Henrickson, 140 Wn.2d 686, 689, 2 P.3d 473 (2000); In re Det. of Davis, 109 Wn. App. 734, 739, 37 P.3d 325 (2002), review denied, 150 Wn.2d 1002 (2003).
See In re Det. of Marshall, 122 Wn. App. 132, 139, 90 P.3d 1081 (2004) (third-degree rape involving non-consensual sex with a developmentally-disabled 21-year-old constituted a `recent overt act' within meaning of RCW 71.09.030), review granted, 153 Wn.2d 1001 (2005).
Although we do not overlook McCuistion's reliance on In re Diestelhorst, 307 Ill. App. 3d 123, 716 N.E.2d 823, 240 Ill. Dec. 299 (1999), we think that his reliance is misplaced. The terms of the statute in issue there were materially different from the terms of the statute in issue here.
III.
McCuistion argues that RCW 71.09 violates the ex post facto clause in both the United States Constitution and the Washington Constitution. Neither clause applies, however, because RCW 71.09 is a civil statute.
Seling v. Young, 531 U.S. 250, 263, 121 S. Ct. 727, 148 L. Ed. 2d 734 (2001); In re Young, 122 Wn.2d 1, 23-24, 857 P.2d 989 (1993); see also Kansas v. Hendricks, 521 U.S. 346, 361, 117 S. Ct. 2072, 138 L. Ed. 2d 501 (1997) (Kansas Sexually Violent Predator Act, similar to RCW 71.09, did not violate federal ex post facto clause).
IV.
McCuistion contends that the evidence at trial was insufficient to support a finding that he suffered from a mental abnormality that made him likely to commit future predatory acts of sexual violence. On this issue, we take the evidence and reasonable inferences in the light most favorable to the State.
In re Det. of Thorell, 149 Wn.2d 724, 744, 72 P.3d 708 (2003), cert. denied, 541 U.S. 990 (2004).
To commit a person under RCW 71.09, the State must prove beyond a reasonable doubt that he is a sexually violent predator and, if he was not `totally confined' when the petition was filed, that he has committed a recent overt act. An exception exists to the overt-act requirement, however, if, when the State filed its SVP petition, the person was `incarcerated for a sexually violent offense, or for an act that would itself qualify as a recent overt act;' in neither of those events does `due process require the State to prove a further overt act occurred between arrest and release from incarceration.' A sexually violent predator 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.' `A recent overt act is an act that causes harm or creates a reasonable apprehension of harm of a sexually violent nature.'
In re Det. of Broten, 115 Wn. App. 252, 255, 62 P.3d 514, review denied, 150 Wn.2d 1010 (2003) (citing RCW 71.09.060(1)).
Broten, 115 Wn. App. at 255 (citing RCW 71.09.060(1) and RCW 71.09.020(10)).
Broten, 115 Wn. App. at 255 (quoting Henrickson, 140 Wn.2d at 695) (citations omitted).
Broten, 115 Wn. App. at 255 (quoting RCW 71.09.020(16)).
Broten, 115 Wn. App. at 255 (citing RCW 71.09.020(10)).
The record here shows a sexually violent offense, for it shows a 1980 conviction of attempted indecent liberties against two children aged 5 and 8. The record also shows a 1993 overt act, for it shows that on April 25, 1993, McCuistion forcibly raped a hitchhiker. The record need not show that the overt act was `recent' vis-à-vis the State's October 1998 SVP petition, for McCuistion was constantly incarcerated from April 1993 to October 1998. The remaining issues are (A) whether the evidence is sufficient to show that McCuistion suffered from a mental abnormality or personality disorder that made him likely to commit predatory acts of sexual violence, and (B) whether the evidence is sufficient to show that McCuistion had serious difficulty controlling his sexually violent behavior.
See Marshall, 122 Wn. App. at 139 (third-degree rape involving non-consensual sex with a developmentally-disabled 21-year-old constituted a `recent overt act' within meaning of RCW 71.09.030).
See Kansas v. Crane, 534 U.S. 407, 414, 122 S. Ct. 867, 151 L. Ed. 2d 856 (2002); Thorell, 149 Wn.2d 724.
McCuistion argues that the evidence is insufficient to support a finding that he suffers from a mental abnormality. RCW 71.09.020(8) defines a `mental abnormality' as `a congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to the commission of criminal sexual acts in a degree constituting such person a menace to the health and safety of others.'
Dr. Packard testified that although he was not a medical doctor, he was a licensed clinical psychologist and certified sex offender treatment provider who had for nearly 20 years been evaluating, diagnosing, and treating sex offenders. He opined that McCuistion suffered from a mental abnormality known as `Paraphilia, Not Otherwise Specified,' which is `a mental disorder that has as its primary features the existence of recurring, intense sexually arousing fantasies, urges or behaviors' that can be `towards children, or non-consenting persons.' He further opined that McCuistion had an antisocial personality disorder and was `more likely than not to engage in future acts of predatory sexual violence if not confined.' He based these opinions on McCuistion's treatment history, McCuistion's own statements, the facts underlying McCuistion's convictions, and other relevant factors. Taken in the light most favorable to the State, this evidence is sufficient to support the contested finding.
Accordingly, we reject McCuistion's contention that Dr. Packard was not qualified as an expert witness. E.g., Bell v. State, 147 Wn.2d 166, 172, 52 P.3d 503 (2002); In re Det. of Aqui, 84 Wn. App. 88, 94, 929 P.2d 436 (1996), review denied, 133 Wn.2d 1015 (1997).
Clerk's Papers at 770.
Report of Proceedings (RP) at 70.
RP at 104.
McCuistion further argues that the evidence is insufficient to show that he had serious difficulty controlling his sexually violent behavior. In In re Detention of Thorell, the Supreme Court addressed whether the evidence was sufficient for the jury to find beyond a reasonable doubt that a person named Ross presented a serious risk of future sexual violence. According to the experts, Ross had various personality disorders, alcohol dependency, and paraphilia that affected his ability to control his urges. His history of sexual violence and concomitant personality disorder supported an inference that he was seriously unable to control his behavior. Thus, the evidence was sufficient to support his commitment as an SVP.
149 Wn.2d 724, 72 P.3d 708 (2003), cert. denied, 541 U.S. 990 (2004).
149 Wn.2d at 742 (Ross was one of five convicted sex offenders in this consolidated case).
Thorell, 149 Wn.2d at 760-61.
Thorell, 149 Wn.2d at 761.
Thorell, 149 Wn.2d at 762.
The evidence here is similar. Dr. Packard opined that McCuistion had a serious lack of control such that he was likely to engage in predatory acts of sexual violence if not confined to a secure facility. Dr. Packard based his opinion on McCuistion's paraphilia and antisocial personality disorder; on McCuistion's convictions for rape and sexual assault; on tests used to predict recidivism; on McCuistion's history of alcohol abuse; and on McCuistion's failure to adhere to a sex offender treatment program. Like the experts in Thorell, Dr. Packard also highlighted the cause-and-effect relationship between McCuistion's mental disorders and his history of sexually based offenses. Viewed in the light most favorable to the State, this evidence was sufficient to support a finding that McCuistion had serious difficulty controlling his sexually violent behavior.
See Thorell, 149 Wn.2d at 761-62 (`[A] diagnosis of a mental abnormality or personality disorder is not, in itself, sufficient evidence for a jury to find a serious lack of control. Such a diagnosis, however, when coupled with evidence of prior sexually violent behavior and testimony from mental health experts, which links these to a serious lack of control, is sufficient for a jury to find that the person presents a serious risk of future sexual violence and therefore meets the requirements of an SVP.').
V.
McCuistion argues that the State violated his due process and equal protection rights by `treating [him] as though he were incarcerated within the Department of Corrections and about to be released from total confinement from the conviction of a sexually violent offense.' In essence, he reiterates his position that RCW 71.09.030 applies only to persons currently confined for committing a sexually violent offense; that he is not such a person; and thus that he is not committable. Having rejected this position already, we need not discuss it further.
Br. of Appellant at 32.
VI.
McCuistion argues that the State lacks authority to retain its own expert except when an SVP petitions for release from commitment. He also contends that the State improperly usurped the role of the `referring agency' under RCW 71.09.025 by hiring its own expert to support its petition. He seems to reason that an agency with jurisdiction, in this case the Department of Corrections, must first refer a potential sexual violent predator to the prosecutor, who must then rely on the agency's evaluation of the offender without assistance from an expert; or, put another way, that the prosecutor is limited to using whatever information and testimony that the referring agency chooses to provide. Being contrary to both the Civil Rules and the Evidence Rules, this argument is wholly without merit.
See, e.g., ER 702-05.
VII.
McCuistion argues that he was denied his right to present a defense when the court refused his request for a fourth expert witness at public expense. RCW 71.09.050(2) provides: Whenever any person is subjected to an examination under this chapter, he or she may retain experts or professional persons to perform an examination on their behalf. . . . In the case of a person who is indigent, the court shall, upon the person's request, assist the person in obtaining an expert or professional person to perform an examination or participate in the trial on the person's behalf.
In this case, the trial court appointed three experts on McCuistion's behalf. McCuistion then decided, for whatever reason, not to use any of them. When he requested a fourth, trial was imminent and he did not explain why any of the other three had not been adequate. We review the trial court's ruling only for abuse of discretion, and there was no abuse here.
See, e.g., State v. Niblack, 74 Wn.2d 200, 203, 443 P.2d 809 (1968); State v. Newcomer, 48 Wn. App. 83, 94, 737 P.2d 1285, review denied, 109 Wn.2d 1014 (1987); State v. Anderson, 33 Wn. App. 517, 519, 655 P.2d 1196 (1982).
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.
ARMSTRONG, J. and HUNT, J., Concur.