Opinion
No. 56360-2-I.
December 11, 2006.
Appeal from a judgment of the Superior Court for King County, No. 04-2-10006-2, Mary Yu, J., entered June 1, 2005.
Counsel for Petitioner(s) Nielsen Broman Koch PLLC Attorney at Law, Seattle, WA.
Dana M Lind Nielsen Broman Koch PLLC, Seattle, WA.
Jennifer K. Ryan Gilman City of Seattle Law Dept, Seattle, WA.
Counsel for Respondent(s) Prosecuting Atty King County, King Co Pros/App Unit Supervisor, Seattle, WA.
Rod H. Scarr, Attorney at Law, King Co Pros Aty, Seattle, WA.
David J. W. Hackett, King Co Pros Office, Seattle, WA.
Affirmed by unpublished per curiam opinion.
Kim Daly was civilly committed under Washington's Sexually Violent Predator Act (SVPA). Daly appeals, contending that the State failed to present evidence sufficient for the jury to commit him as a sexually violent predator, that he was denied his right to a unanimous jury verdict, and the trial court impermissibly commented on the evidence. Finding no reversible error, we affirm.
FACTS
In 1980, Daly was convicted by plea of indecent liberties after he sexually molested a three-year-old boy. He received a ten year suspended sentence on the condition that he complete Western State Hospital's sexual psychopath program. After five years, Daly was released to the Linden Lea Lodge where he was supervised until 1990. In 1999, Daly was convicted by plea of two counts of indecent liberties without forcible compulsion for having sexually abused an elderly and senile male resident at the group home for a number of years. Daly was sentenced to 41 months in prison and a term of community custody. In July 2001, he was released on community custody. Over the next few years, Daly was punished for repeatedly violating the conditions of community custody. In 2004, as Daly neared the end of his term of community custody, the State filed a petition for Daly's involuntary civil commitment as a sexually violent predator under RCW 71.09.
At the commitment trial, the jury heard evidence of Daly's past criminal and deviant sexual history, including the circumstances surrounding his 1980 and 1999 convictions for indecent liberties. A psychologist testified that in her opinion Daly suffered from the mental abnormality of pedophilia. Other expert testimony established that Daly was a high risk to reoffend. The jury found Daly was a sexually violent predator. The trial court ordered Daly to be committed to the Department of Social and Health Services in a secure facility for control, care, and treatment pursuant to RCW 71.09.060. This appeal followed.
DECISION
Daly seeks reversal of the order of commitment based on the following instructions given to the jury:
Instruction No. 5
To establish that the respondent, Kim Daly, is a sexually violent predator, the State must prove each of the following elements beyond a reasonable doubt:
(1) That Kim Daly has been convicted of a crime of sexual violence, namely: Indecent Liberties; and
(2) That Kim Daly suffers from a mental abnormality and/or a personality disorder which causes serious difficulty in controlling his sexually violent behavior; and
(3) That this mental abnormality and/or personality disorder makes Kim Daly likely to engage in predatory acts of sexual violence if not confined to a secure facility; and
(4) That Kim Daly has committed a recent overt act.
If you find from the evidence that each of these elements has been proven beyond a reasonable doubt, then it will be your duty to return a verdict that Kim Daly is a sexually violent predator.
On the other hand, if, after weighing all of the evidence, you have a reasonable doubt as to any one or more of these elements, then it will be your duty to return a verdict that Kim Daly is not a sexually violent predator.
Instruction No. 6
A person commits the crime of indecent liberties when he knowingly causes another person who is not his spouse to have sexual contact with him or another by forcible compulsion.
Instruction No. 13
For the purpose of this proceeding, "sexual violence" means commission of one of the following defined crimes:
-Rape in the First or Second Degree
-Rape of a Child in the First or Second Degree
-Child Molestation in the First or Second Degree
-Indecent Liberties
Under the SVPA, the State is authorized to civilly commit an individual to a secure treatment facility when he or she is found by a jury to be a sexually violent predator (SVP). RCW 71.09.010. An SVP is defined as "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). In order to involuntarily commit a person under the SVPA, the State must provide evidence to prove beyond a reasonable doubt that the person is a SVP. RCW 71.09.060(1). Daly first contends that the jury lacked sufficient evidence to commit him as a SVP. Specifically, he argues that the State failed to prove beyond a reasonable doubt that he was convicted of or charged with a sexually violent offense, a necessary element for SVP commitment. The quantum of the evidence in SVP commitment trials is to be examined under a criminal standard. In re Detention of Thorell, 149 Wn.2d 724, 744, 72 P.3d 708 (2003). "Under this approach, the evidence is sufficient if, when viewed in the light most favorable to the State, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Thorell, 149 Wn.2d at 744. Although Daly does not dispute that his 1980 indecent liberties conviction for molesting a three-year-old boy qualifies as a sexually violent offense under the SVPA, he contends that his civil commitment must be reversed because of the way in which the jury was instructed on the relevant law. In making this argument, Daly notes that indecent liberties is a sexually violent offense only if committed with forcible compulsion or upon a child under the age of 14. See RCW 71.09.020(15)(a). Although the sexually violent offense element is satisfied in the "to commit" instruction if Daly has any conviction for indecent liberties, the crime of indecent liberties is further defined in Instruction 6 as having sexual contact with another "by forcible compulsion." Because the State failed to object to this overly narrow definition of indecent liberties, Daly argues it became the law of the case and the State assumed the added burden of proving that he had a prior conviction for indecent liberties "with forcible compulsion" in order to commit him as a SVP. Because the State failed to do so, Daly argues, "the evidence was insufficient to find [he] had committed the requisite sexually violent offense." We disagree. Article 4, section 16 states that, "[j]udges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law." A judge's statement constitutes a comment on the evidence if "the court's attitude toward the merits of the case or the court's evaluation relative to the disputed issue is inferable from the statement." State v. Lane, 125 Wn.2d 825, 838, 889 P.2d 929 (1995). The court generally cannot assert that matters of fact have been established as a matter of law. State v. Becker, 132 Wn.2d 54, 64, 935 P.2d 1321 (1997). A jury instruction that states the law correctly and concisely and is pertinent to the issues of the case does not constitute a comment on the evidence. State v. Johnson, 29 Wn. App. 807, 811, 631 P.2d 413 (1981). Our resolution of this issue turns on the meaning of the "namely: Indecent liberties" phrase contained in the first element of the "to commit" instruction. Daly argues this language amounted to an impermissible judicial comment on the evidence in violation of article 4, section 16 of the Washington Constitution. Daly relies on Becker, 132 Wn.2d 54 and State v. Akers, 136 Wn.2d 641, 965 P.2d 1078 (1998), to support his argument that the "namely" reference to indecent liberties constituted an improper judicial comment on the evidence. In Becker, our Supreme Court held that a special verdict form asking whether defendants were within 1,000 feet of school grounds which included the phrase "`to-wit: Youth Employment Education Program [YEP] School'" impermissibly relieved the State of its burden to prove that the program was a school, a fact that was highly contested by the parties. Becker, 132 Wn.2d at 64. In Akers, the Supreme Court did not reach the question of whether a special verdict form that left out the word "school" in the "to-wit" reference amounted to an improper judicial comment, but nonetheless criticized the Court of Appeals holding that it was not a judicial comment under Becker. Akers, 136 Wn.2d at 644. Daly's argument is premised on the words "to-wit" and "namely" being indistinguishable. Black's Law Dictionary defines "to wit" as "namely." Black's Law Dictionary 1658 (4th ed. 1968) We agree they are the same. However, Becker and Akers are distinguishable on their facts. In this case there was no dispute that Daly has an indecent liberties conviction that qualifies as a crime of sexual violence for purposes of SVP commitment. During jury selection counsel for Daly stated:
But it's not going to be disputed that Mr. Daly's been convicted of a crime of sexual violence in the past and it's not going to be disputed that Mr. Daly has offended against several young children in the past.
Defense counsel also made the following remarks in opening statement:
In 1980 he was convicted of indecent liberties involving a child. Now, that is the sexually violent offense. No dispute that M. Daly's been convicted of sexual violence.
Defense counsel went on to explain in detail the significant differences between the 1980 and 1998 convictions for indecent liberties:
He was convicted in 1998 of indecent liberties without force. It's a little — kind of the same name but it's an act that doesn't involve a child. The crime to which he was — to which he — for which he was convicted is not a sexually violent offense. And you'll hear from Dr. Judd, when you're assessing risk under the statute, it's a very narrow class of offenses that — for better or for worse, that the law is concerned about. And this conviction is not one of them, so that is not a predicate offense, the conviction for sexually violent offense, as the 1980 one is.
In closing, counsel for Daly remarked as follows:
The issue here is not whether or not you are outraged. The issue is not whether or not you are completely frustrated with Mr. Daly and his crimes in the past. The issue is not that something terrible could happen. That's not what you're here to decide. You're here to decide four things. And you're asked to apply those four things and apply the standard of beyond a reasonable doubt. So, the first: Has the respondent been convicted of a crime of sexual violence? I'm not going to spend a whole lot of time on that one. The second is whether he suffers from a mental abnormality or a personality disorder which causes serious difficulty controlling his sexually violent behavior. Dr. Judd indicated that Mr. Daly suffers from pedophilia and paraphilia. If you trust that opinion, then you trust Dr. Judd, then perhaps you should find that second element is met.
The questions that you have to decide today are three and four, whether the respondent's, Mr. Daly's, abnormality and/or personality disorder makes him likely to engage in predatory acts of sexual violence if not confined to a security facility?
When viewed within the context of this case and the numerous admissions made by Daly throughout his commitment proceedings, the trial court was well within its authority to instruct the jury that indecent liberties is a crime of sexual violence as a matter of law. See United States v. Bentson, 947 F.2d 1353, 1356 (9th Cir. 1991) (holding that a concession made during closing argument is a binding judicial admission); In re Lynch, 114 Wn.2d 598, 603, 789 P.2d 752 (1990) ("In the course of his argument and in response to questions from the court, he made certain statements which are binding against him as judicial admissions."); Hallum v. Mullins, 16 Wn. App. 511, 515, 557 P.2d 864 (1976) ("In this state, trial courts are unquestionably empowered to dispose of civil actions on the opening statement of counsel for a party."); State v. Gallagher, 15 Wn. App. 267, 270, 549 P.2d 499 (1976) (When some fact is clearly stated or admission is expressly made during an opening statement, "leaving only an isolated and determinative issue of law, the court may resolve that issue."). Because, as Daly acknowledges on appeal, the reference to indecent liberties in the "to commit' instruction directed the jury to find that he has been convicted of a sexually violent offense, the wording of jury instructions Nos. 6 and 13 is irrelevant. We find no error.
The preferred practice would have been for the parties to enter into a formal stipulation on any necessary element. See State v. Wolf, 134 Wn. App. 196, 199, 139 P.3d 414 (2006).
Even assuming we found the reference to indecent liberties immediately following the word "namely" in the "to commit" instruction was improper, any error was harmless. An impermissible judicial comment in a jury instruction "is presumed to be prejudicial, and the burden is on the State to show that the defendant was not prejudiced, unless the record affirmatively shows that no prejudice could have resulted." State v. Levy, 156 Wn.2d 709, 725, 132 P.3d 1076 (2006). Here, given the evidence presented and the admissions made by Daly during the commitment proceedings, no rational juror could have concluded anything other than Daly has an indecent liberties conviction that qualifies as a crime of sexual violence under the SVPA. Therefore, the record supports a finding that Daly has been convicted of a crime of sexual violence.
For similar reasons, we reject Daly's remaining contention that he was denied his right to a unanimous jury verdict. In view of our holding, we need not reach the State's assertion that Daly's claims are barred under the doctrine of judicial estoppel.
Affirmed.
FOR THE COURT:
Ronald Cox, Susan Agid, Concurring.