[No. 34399-1-II. Division Two. July 3, 2007.]
In the Matter of the Detention of DAVID T. FAIR, Appellant.
[1] Mental Health — Involuntary Commitment — Due Process — Liberty Interest. The involuntary commitment of an individual for any reason constitutes a significant deprivation of liberty triggering the due process protections of the Fifth and Fourteenth Amendments and Const. art. I, § 3.
[2] Mental Health — Involuntary Commitment — Sexually Violent Predators — Proof — Due Process — Mental Illness and Danger. The involuntary commitment of an individual as a sexually violent predator satisfies the requirements of constitutional due process of law if the commitment is based on proof that the individual has a mental illness that renders the individual dangerous beyond his or her control.
[3] Statutes — Construction — Rational Interpretation — Avoiding Absurdity. An interpretation of a statute that would lead to an absurd result is to be avoided.
[4] Mental Health — Involuntary Commitment — Sexually Violent Predators — Protection of Society — State Interest. The State has a compelling interest in protecting the community from dangerous sex offenders.
[5] Mental Health — Involuntary Commitment — Sexually Violent Predators — Recent Overt Act — Necessity — Incarceration — Revocation of SSOSA — Confinement for Another Charge. Neither constitutional due process of law nor the sexually violent predators commitment statute (chapter 71.09 RCW) requires proof of a recent overt act before a sex offender may be involuntarily committed as a sexually violent predator if the offender, having been incarcerated for a sexually violent offense after a period of release into the community under a special sex offender sentencing alternative, has remained continuously incarcerated on another conviction after the sentence imposed for the sexually violent offense has been served.
Nature of Action: Petition to commit a sex offender as a sexually violent predator. The petition was filed a few days before the offender was scheduled to be released from prison after serving a term of confinement for a conviction of robbery. The offender had originally been convicted of second degree child molestation and was granted a special sex offender sentencing alternative that allowed the offender to remain in the community. The sentencing alternative was later revoked, and the offender was incarcerated for the child molestation conviction. The offender was incarcerated for the robbery conviction at the same time. By the time the commitment petition was filed, the offender had fully served the sentence for the child molestation conviction but remained in custody for the robbery conviction.
Superior Court: The Superior Court for Kitsap County, No. 04-2-01554-7, Leonard W. Costello, J., on January 5, 2006, entered an order of commitment after finding the offender to be a sexually violent predator.
Court of Appeals: Holding that the State was not required to plead and prove a recent overt act of sexual violence before the offender could be committed as a sexually violent predator, the court affirms the order of commitment.
James L. Reese III-, for appellant.
Robert M. McKenna-, Attorney General, and Sarah B. Sappington-, Assistant, for respondent.
¶1 VAN DEREN, A.C.J. — David T. Fair appeals his commitment as a sexually violent predator (SVP) under chapter 71.09 RCW, arguing that the due process clauses of the state and federal constitutions required the State to allege and prove a recent overt act (ROA) and that the evidence was insufficient to support a finding that he is an SVP. Because Fair has been incarcerated continuously for both a sex offense and a non-sex offense, and the evidence is sufficient to support the conclusion that he should be committed to the special commitment center as an SVP, we affirm.
FACTS
¶2 In 1988, Fair pleaded guilty to one count of second degree child molestation. The trial court imposed a special sex offender sentence under former RCW 9.94A.120(7) (1988), the special sex offender sentencing alternative (SSOSA). ¶3 On November 1, 1989, the State moved to revoke the SSOSA based on Fair's failure to remain in sex offender treatment and report to the Department of Corrections. ¶4 Fair was extradited to Washington, where the trial court sentenced him to 87 months for the 1989 Kitsap County robbery, consecutive to the New Mexico sentence. The trial court also revoked his SSOSA and required that he serve 20 months in prison on the child molestation conviction concurrent with the 87-month robbery sentence. ¶5 Fair was scheduled to be released from prison on June 28, 2004. On June 23, 2004, the State filed a petition to commit him as an SVP. Fair waived his right to a jury trial and the case proceeded to a bench trial. ¶6 Lisa Dandesku, Fair's primary treatment provider at the Department of Corrections Sexual Offender Treatment Program, testified that Fair completed the 12-month treatment program in March 2004. During his treatment, Fair admitted to having had sexual contact with 19 different individuals, including 17 child victims. Dandesku testified that Fair "couldn't really see how his sexual offending had negatively impacted anybody." Report of Proceedings (RP) at 44. Fair also minimized his violent, non-sexual offenses. ¶7 During treatment, Fair frequently reported sexual arousal and masturbation to thoughts of minor girls. Dandesku testified that Fair "did not want to stop masturbating to minors," and did not think there was anything wrong with having sex with children. RP at 48. At the conclusion of treatment, the clinical team assessed Fair as a high risk to reoffend. ¶8 Dr. Dennis Doren, a psychologist, also testified for the State. Doren testified that Fair admitted offending against 16 individuals, generally in the 8- to 12-year-old range. Although Fair admitted having sexual fantasies about children, he enjoyed the fantasies and was reluctant to give them up. Doren testified that with convicted sex offenders, sexual interest in children highly correlated with sexual reoffending. He diagnosed Fair with pedophilia, paraphilia (with a descriptor of urophilia), ¶9 Doren concluded that Fair's pedophilia was a mental abnormality that predisposed him to commit criminal sexual acts to a degree that made him a menace to the health and safety of others. Doren opined that Fair's antisocial personality disorder caused him to have "serious difficulty controlling his sexually violent behavior," and that Fair was likely to engage in predatory acts of sexual violence if not confined to a secure facility. RP at 291. ¶10 To predict the likelihood that Fair would reoffend, Doren relied on several actuarial risk assessment instruments. Because the tests produced mixed results, Doren could not reach a conclusion about Fair's likelihood of reoffending based solely on the actuarial instruments. Accordingly, Doren considered other risk factors, specifically, whether Fair had a high degree of psychopathy coupled with sexual deviance. ¶11 To assess Fair's psychopathy, Doren relied on the Psychopathy Check List Revised, a psychological test used "to assess the degree to which people have a certain type of personality structure." RP at 318. Under this testing method, the highest score measuring whether someone is a "prototypic psychopath" is 40. RP at 320. Fair scored 30, which ranked him as having a high degree of psychopathy. Doren testified that even without sexual deviancy, a high degree of psychopathy correlated with a higher risk of sexual recidivism. ¶12 Doren also concluded that Fair met the criteria for sexual deviance based on his pedophilia diagnosis. Fair was not tested with a penile plethysmograph (PPG), ¶13 In his defense, Fair testified that he fabricated fantasies and offenses in order to get into a treatment program instead of serving his time in the general prison population. Theodore Donaldson, a specialist in forensic clinical psychology, testified on Fair's behalf. Donaldson believed that Fair had a 36 percent probability of recidivism over a 15 year period based on his score of four on the "Static-99" recidivism test, one of the actuarial instruments that Doren also administered. According to Donaldson, Doren's recidivism calculation was too high because he should not have included the unverified incidents that Fair reported. ¶14 The trial court found that Doren's testimony was more persuasive and credible than Donaldson's. It concluded beyond a reasonable doubt that Fair suffered from a mental abnormality and was likely to engage in sexually violent acts if not confined. Accordingly, the trial court granted the State's petition and ordered Fair committed as an SVP on January 5, 2006. Fair appeals. ANALYSIS RECENT OVERT ACT ¶15 Fair argues that the trial court erred in denying his motion to dismiss based on the State's failure to allege a ROA "Recent overt act" means 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. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. ¶18 In Henrickson, the two defendants were briefly released into the community pending sentencing and appeal. 140 Wn.2d at 689, 691. They argued that due process required the State to prove an ROA because they had spent time in the community after committing the current offenses. Henrickson, 140 Wn.2d at 693. The Henrickson court rejected this argument: We hold no proof of a recent overt act is constitutionally or statutorily required when, on the day the petition is filed, an individual is incarcerated for a sexually violent offense, [former] RCW 72.09.020(6) [2000], or an act that by itself would have qualified as a recent overt act, [former] RCW 71.09.020(5) [2000]. Henrickson, 140 Wn.2d at 689. ¶19 More recently, Division One of this court affirmed the SVP commitment of an offender who was serving a 20-year suspended sentence following his conviction for first degree statutory rape in 1980. In re Det. of Kelley, 133 Wn. App. 289, 135 P.3d 554 (2006). The trial court revoked Kelley's suspended sentence and returned him to prison to serve the remainder of his sentence "after he assaulted his girl friend, was found possessing a bayonet, and left the county without permission." Kelley, 133 Wn. App. at 291. Rejecting Kelley's argument that the State had to prove an ROA, the court stated: "Periods of temporary release after arrest and prior to extensive confinement do not modify the statute's unambiguous directive that the State need not prove a recent overt act when the subject of a sexually violent predator petition is incarcerated on the day the petition is filed." It would also be an impossible standard for the State to meet because total confinement prevents such acts from occurring, and [the defendant] has been confined since 1983. To require the State to prove an overt act in [the defendant's] case would write the word "recent" out of the statute. Kelley, 133 Wn. App. at 294 (footnotes omitted) (quoting Henrickson, 140 Wn.2d at 693). ¶20 In all relevant respects, Fair's case is indistinguishable from Henrickson and Kelley. When the State filed its petition, Fair was incarcerated after revocation of the community treatment portion of his SSOSA. He had remained in continuous custody on the robbery conviction following expiration of the 20-month sentence for second degree child molestation, which is a sexually violent offense under RCW 71.09.020(15). As in Henrickson, Fair was "previously released into the community but [was] incarcerated on the day a sexually violent predator petition [was] filed," following his conviction for a sexually violent offense or an act that by itself would have qualified as a recent overt act. Henrickson, 140 Wn.2d at 688-89. ¶21 While Fair correctly points out that, unlike Henrickson, Fair's sentence for the sexual offense had expired before the State filed its SVP petition, this difference is not relevant. Fair was in continuous confinement from the time he returned to prison on the second degree child molestation conviction until his scheduled release date on the first degree robbery conviction. He was not released into the community between the incarceration for the sexually violent offense and the robbery sentence and, thus, he had no opportunity to commit an ROA in the community. Requiring proof of an ROA under these circumstances would be absurd. See Henrickson, 140 Wn.2d at 695. ¶22 Fair's argument would effectively preclude the State from filing an SVP petition when an offender serves concurrent sentences and the non-sexual offense sentence exceeds the sentence for the sexually violent offense. For instance, if the State filed its petition at the expiration of Fair's child molestation sentence, the filing would have preceded Fair's actual release date by a considerable amount of time and Fair may have complained that the filing violated RCW 71.09.030. 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; . . . 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. ¶23 We conclude that the expiration of one sentence, without an intervening release to the community, does not prevent the State from filing an SVP petition while a defendant is still incarcerated, so long as one of the offenses leading to the incarceration meets the definitions of RCW 71.09.020(15) ¶24 A majority of the panel having determined that the remainder of this opinion lacks precedential value and will not be printed in the Washington Appellate Reports but will be filed for public record in accord with RCW 2.06.040, it is so ordered. BRIDGEWATER and QUINN-BRINTNALL, JJ., concur.