Opinion
No. 35363-6-II.
May 28, 2008.
Appeal from a judgment of the Superior Court for Pierce County, No. 03-2-10280-1, Beverly G. Grant, J., entered August 9, 2006.
Affirmed by unpublished opinion per Quinn-Brintnall, J., concurred in by Van Deren, A.C.J., and Armstrong, J.
A jury found that Frank Daniel Johnny was a sexually violent predator (SVP) and the trial court ordered that he be committed to a secure facility indefinitely. Johnny appeals, claiming that, because the State did not prove beyond a reasonable doubt that he had committed a recent overt act and the trial court failed to instruct the jury on its duty to present a unanimous verdict, his right to due process was violated. We affirm.
FACTS
On June 7, 2001, Johnny exposed his penis to a 13-year-old girl (M.G.) while masturbating against her bedroom window. M.G. yelled at Johnny to leave. Later that night, Johnny returned to M.G.'s bedroom, cut through the window screen, reached in, and touched herleg. M.G. slapped Johnny's hand and alerted her parents. Johnny pleaded guilty to indecent exposure and residential burglary, and the trial court sentenced him to 38 months confinement.
On August 11, 2003, while Johnny was still in prison serving his 38-month sentence, the State filed a petition under former RCW 71.09.020 (2003) seeking to involuntarily commit Johnny as a SVP. In its petition, the State detailed Johnny's lengthy criminal history, including several sexual offenses. Relying on In re Detention of Marshall, 156 Wn.2d 150, 125 P.3d 111 (2005), the State requested that the trial court find the 2001 indecent exposure and burglary convictions were recent overt acts that satisfied former RCW 71.09.020(10). Johnny's trial counsel conceded and the trial court granted the State's motion, finding that Johnny's 2001 conviction satisfied the statutory recent overt act requirement.
A jury trial followed to determine whether Johnny was a SVP. Both parties stipulated to the jury instructions. The jury found that Johnny met the statutory definition of a SVP. Based on the jury's verdict, the trial court issued an order indefinitely committing Johnny to the care and custody of the Department of Social and Health Services. Johnny timely appeals the commitment order.
ANALYSIS
This appeal requires that we address two issues: first, whether, despite being incarcerated, the State was required to prove that Johnny had committed a recent overt act; and, second, whether the trial court properly instructed the jury.
Recent Overt Act
Johnny contends that the trial court's determination that his 2001 convictions for indecent exposure and burglary qualified as recent overt acts violated his due process rights because it relieved the State of its obligation to prove beyond a reasonable doubt that Johnny was presently dangerous. We disagree.
To civilly commit a person as a SVP, chapter 71.09 RCW, the State must prove beyond a reasonable doubt that the person is a SVP. A SVP is a 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." Former RCW 71.09.020(16). Under RCW 71.09.030(1), the State may file a petition to involuntarily commit a person as a SVP if the person was previously convicted of a "sexually violent offense [and] is about to be released from total confinement."
Due process requires that, before indefinitely committing a person to a secure facility, a jury must find beyond a reasonable doubt that the person is both mentally ill and presently dangerous. Marshall, 156 Wn.2d at 157. When a person is not incarcerated at the time the State files the commitment petition, due process requires that the State also "prove present dangerousness with evidence of a recent overt act." In re Det. of Lewis, 163 Wn.2d 188, 194, 177 P.3d 708, 711 (2008) (citing In re Pers. Restraint of Young, 122 Wn.2d 1, 41, 857 P.2d 989 (1993), superseded by statute by In re Det. of Elmore, 162 Wn.2d 27, 168 P.3d 1285 (2007)). 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." Former RCW 71.09.020(10).
But the due process requirement to prove dangerousness may be satisfied by the person's prior conviction when the petition is filed while the offender is incarcerated for a prior act that would itself qualify as a recent overt act. In re Det. of Henrickson, 140 Wn.2d 686, 695,2 P.3d 473 (2000). Whether the act resulting in a conviction underlying the alleged SVP's confinement is a recent overt act as defined in former RCW 71.09.020(10) is a question of law for the trial court, not a question of fact to be decided by the jury. Marshall, 156 Wn.2d at 158; State v. McNutt, 124 Wn. App. 344, 350, 101 P.3d 422 (2004), review denied, 156 Wn.2d 1017 (2006).
When the act resulting in confinement has not caused harm of a sexually violent nature, an adjudication of the recent overt act question requires both a factual and legal inquiry. McNutt, 124 Wn. App. at 350. In such cases, the factual inquiry determines the circumstances of the alleged sexually violent predator's history and mental condition, while the legal inquiry determines whether an objective person knowing those factual circumstances would have a reasonable apprehension of harm of a sexually violent nature resulting from the act in question. Marshall, 156 Wn.2d at 158 (citing McNutt, 124 Wn. App. at 350). There is no requirement that the act or threat be physically dangerous. See In re Det. of Hovinga, 132 Wn. App. 16, 130 P.3d 830 (act of masturbating while covertly following girls around a store), review denied, 158 Wn.2d 1024 (2006); In re Det. of Broten, 130 Wn. App. 326, 122 P.3d 942 (2005) (act of being in a park at a children's playground without a chaperone), review denied, 158 Wn.2d 1010 (2006); In re Det. of Albrecht, 129 Wn. App. 243, 252, 118 P.3d 909 (2005) (act of luring a young boy with 50 cents), review denied, 157 Wn.2d 1003 (2006).
Here, the trial court held a hearing to determine whether Johnny's 2001 conviction for the acts he committed against M.G. was a recent overt act. At the hearing, Johnny's trial counsel conceded that the convictions for which Johnny was incarcerated were recent overt acts and, thus, satisfied former RCW 71.09.020(10). There is no dispute that, when the State filed the petition, Johnny was serving his 2001 sentence for indecent exposure and residential burglary. The trial court found that these convictions satisfied the statutory recent overt act requirement. McNutt, 124 Wn. App. at 350-51.
Johnny's trial counsel told the trial court:
I don't have an argument contrary to [prosecuting] counsel's. I have reviewed the cases. I'm very much aware of them. I cannot think of a reason or credible argument that the behavior alleged did not constitute a recent overt act and thus you're not receiving any responsive brief or anything with regard to that issue.
Report of Proceedings (July 28, 2006) at 4.
In addition, the record shows that Johnny had a history of committing nonconsensual violent sexual acts (choking his victims while attempting to rape them) and supports the trial court's recent overt act finding.
Because of the nature of the crimes for which Johnny had been in prison, the State was not required to plead or prove another recent overt act to a jury beyond a reasonable doubt to satisfy due process. Marshall, 156 Wn.2d at 156-57. Based on the foregoing, an objective person knowing the factual circumstances of Johnny's criminal history and mental condition would have a reasonable apprehension that Johnny's acts (exposing himself, masturbating, cutting the window screen, and touching a 13-year-old girl's leg while she slept) would cause reasonable fear of sexually violent harm consistent with his history of initiating nonconsensual sexual contact. Marshall, 156 Wn.2d at 158; see also McNutt, 124 Wn. App. at 351-52 (act of defendant offering a minor beer and inviting her to engage in sex acts with him was sufficient evidence that defendant committed a recent overt act). Accordingly, we hold that the trial court's ruling that Johnny's 2001 convictions qualified as recent overt acts was proper.
Unanimous Jury Instruction
For the first time on appeal, Johnny assigns error to the trial court's failure to give an instruction requiring that the jury be unanimous on the basis for his confinement: whether he had a mental abnormality or a personality disorder. We note that Johnny did not propose such a unanimity instruction and did not object to the trial court's jury instructions so as to give the trial court an opportunity to address and, if appropriate, cure any such instructional deficiency. See CrR 6.15 (a), (c).
We do not review on appeal an alleged error not raised at trial unless it is a "manifest error affecting a constitutional right." RAP 2.5(a)(3); State v. Scott, 110 Wn.2d 682, 686-87, 757 P.2d 492 (1988). An appellant must show actual prejudice to establish that the error is "manifest." State v. Lynn, 67 Wn. App. 339, 346, 835 P.2d 251 (1992). Generally, however, the right to a unanimous verdict is part of the fundamental constitutional right to a jury trial, and we have reviewed challenges to the absence of such an instruction even when made for the first time on appeal. State v. Handyside, 42 Wn. App. 412, 415, 711 P.2d 379 (1985) (citing State v. Russell, 101 Wn.2d 349, 678 P.2d 332 (1984)).
We note that, in Russell, our Supreme Court allowed the issue to be raised for the first time on appeal in part because alternative means were charged unlawfully. 101 Wn.2d at 354. Here, Johnny neither claims nor argues that an alternative is unlawfully alleged.
But generally, when a defendant has failed to request the alleged missing instruction or proposed the instruction he now claims to be defective, the doctrine of invited error precludes our review. State v. Henderson, 114 Wn.2d 867, 868, 792 P.2d 514 (1990). The invited error doctrine applies even where an alleged error is of constitutional magnitude. Henderson, 114 Wn.2d at 871 (quoting State v. Alger, 31 Wn. App. 244, 249, 640 P.2d 44, review denied, 97 Wn.2d 1018 (1982)). A narrow exception applies, allowing review, when a defendant argues that the instructional error was the result of counsel's ineffective assistance. State v. Studd, 137 Wn.2d 533, 550, 973 P.2d 1049 (1999); State v. Gentry, 125 Wn.2d 570, 646-47, 888 P.2d 1105, cert. denied, 516 U.S. 843 (1995). Here, Johnny did not request or propose a unanimity instruction and does not allege that his trial counsel was ineffective for failing to do so. Thus, Johnny has not preserved a challenge to the trial court's instructions for our review.
We acknowledge, however, that our Supreme Court appears to have recently addressed the question of whether "mental abnormality" and "personality disorder" under former RCW 71.09.020(16) are alternative means requiring jury unanimity. In re Det. of Halgren, 156 Wn.2d 795, 809-11, 132 P.3d 714 (2006).
In Halgren, the court applied the alternative means test used in State v. Arndt, 87 Wn.2d 374, 553 P.2d 1328 (1976), to a jury verdict in a SVP proceeding. 156 Wn.2d at 810. The Arndt alternative means test generally requires that a jury unanimously agree and render a verdict on one of several statutory alternative means of committing an offense. But the Arndt test does not require reversal if the evidence of each alternative is sufficient to allow the trier of fact to have found each means beyond a reasonable doubt. Halgren, 156 Wn.2d at 811 (quoting State v. Kitchen, 110 Wn.2d 403, 410-11, 756 P.2d 105 (1988)).
When alternative means to committing a single crime, a jury need not be unanimous as to the means if substantial evidence supports each means charged. Arndt, 87 Wn.2d at 376-77.
Cf. State v. Petrich, 101 Wn.2d 566, 683 P.2d 173 (1984) (Where a series of uncharged criminal acts presented to a jury that must decide whether defendant is guilty of an individual count charged, the State may elect the act upon which it will rely for conviction. If the State chooses not to make an election, the trial court must instruct the jury that they must all agree that the same underlying criminal act had been proven beyond a reasonable doubt.), overruled in part by State v. Kitchen, 110 Wn.2d 403, 756 P.2d 105 (1988).
Although we question whether "mental abnormality" and "personality disorder" are distinct alternative means of establishing the mental illness element in SVP cases, Halgren appears to control. In Halgren, our Supreme Court held that, under Arndt, the terms "mental abnormality" and "personality disorder" are two factual alternative means for establishing the mental illness element in SVP cases. 156 Wn.2d at 810 (citing Arndt, 87 Wn.2d at 382).
Whether mental illness is a "mental abnormality" or "personality disorder" appears to us to be outside the realm of facts appropriately addressed by lay citizens such as members of the jury and would "also compromise the value of the clinical judgments of expert witnesses in this difficult area." In re Det. of Halgren, 124 Wn. App. 206, 216, 98 P.3d 1206 (2004), affirmed, 156 Wn.2d 795, 132 P.3d 714 (2006). Moreover, our Supreme Court had previously expressed the view that it is the mental illness of the alleged SVP, whether it is a mental abnormality or personality disorder, that is a necessary predicate to the SVP determination. In re Det. of Thorell, 149 Wn.2d 724, 742, 72 P.3d 708 (2003), cert. denied, 541 U.S. 990 (2004).
In any event, the trial court's failure to give the jury a unanimity instruction here does not require reversal of the jury's SVP finding. Our review of the record reveals substantial evidence proving beyond a reasonable doubt that Johnny suffered from both a mental abnormality and a personality disorder. Former RCW 71.09.020(16); Halgren, 156 Wn.2d at 812.
Although the commitment proceedings are civil in nature, given the significant liberty interest at stake, we examine the sufficiency of the evidence under the beyond a reasonable doubt standard. Former RCW 71.09.060(1) (2001); Thorell, 149 Wn.2d at 744 (explicitly requiring a unanimous verdict).
In this case, the testimony of Johnny's expert conflicted with the State's expert regarding whether Johnny met the statutory criteria for a "sexually violent predator." Resolving such conflicts in testimony requires a determination of the credibility of the witnesses; witness credibility lies within the jury's province. Credibility determinations are for the trier of fact and are not subject to our review. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004). The State's expert, Dr. Richard Packard, a licensed psychologist and certified sex offender treatment provider, provided extensive testimony regarding his assessment of Johnny. Dr. Packard evaluated Johnny in 2003 to determine whether he met the criteria for "sexually violent predator" under ch. 71.09 RCW. Dr. Packard diagnosed Johnny with at least three mental disorders: (1) paraphilia not otherwise specified (NOS), nonconsent; (2) paraphilia specified as exhibitionism; and (3) substance dependence in a controlled environment. Moreover, Dr. Packard testified that Johnny had an antisocial personality disorder and assessed Johnny's risk of recidivism as high. In addition to Dr. Packard's testimony, the State presented evidence to the jury of Johnny's prior sexually violent criminal history.
Paraphilia NOS, nonconsent, is a mental disorder that has, as its primary characteristic, fantasies, urges, or behaviors that are oriented toward nonconsenting persons.
Exhibitionism focuses on fantasies, urges, or behaviors involving the exposure of one's genitals to an unsuspecting stranger.
Johnny's expert, Dr. Richard Wollert, also a licensed clinical psychologist and certified sex offender treatment provider, disagreed with two of the four diagnoses made by Dr. Packard as well as with Dr. Packard's diagnostic method and his assessment of Johnny's recidivism risk. But even using his own diagnostic methods, Dr. Wollert also diagnosed Johnny with both mental abnormality and personality disorder: substance dependence (mental abnormality); depressive disorder NOS (mental abnormality); and antisocial personality disorder (personality disorder). According to Dr. Wollert, none of these affected Johnny's volitional or emotional control or predisposed him to commit the predatory sexual acts to which he had pleaded guilty to committing in 2001.
At his commitment trial, however, Johnny told the jury that he had trouble controlling his arousal and that he had fantasies of raping and beating women and children.
Generally, a diagnosis of a mental abnormality or personality disorder alone is not sufficient evidence to support a jury's finding that an alleged SVP has a serious lack of control Page 10 requiring confinement. In re Det. of Thorell, 149 Wn.2d 724, 761-62, 72 P.3d 708 (2003), cert. denied, 541 U.S. 990 (2004). But here, Dr. Packard's diagnosis, evidence of Johnny's prior sexually violent behavior, and Johnny's own testimony regarding his lack of control and violent fantasies is ample evidence on which any reasonable jury could find beyond a reasonable doubt that Johnny suffered from both mental abnormalities and personality disorders and that he presented a serious risk of future sexual violence unless confined in a secure facility. In other words, the record contains proof beyond a reasonable doubt of the requirements necessary to constitutionally find that Johnny was a sexually violent predator under either alternative and amply supports the trial court's indefinite confinement order. Thorell, 149 Wn.2d at 762.
Accordingly, we affirm the trial court's order committing Johnny to a secure facility indefinitely.
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. VAN DEREN, A.C.J., We concur.