In re the Detention of Broten

115 Wash. App. 252

• Court: Court of Appeals of Washington
• Decided: January 31, 2003
• Docket: No. 26704-7-II
• Status: Published

Opinions

Armstrong, J. —

Richard Broten appeals his commitment after a jury found that he was a sexually violent predator. Broten served a prison sentence for child rape and was then released on community custody. But he violated the community custody conditions¹ and was again incarcerated. While he was in custody for the violations, the State filed a sexual predator petition, including an allegation that Broten had committed a recent overt act. But shortly before trial, the State amended the petition to omit the recent overt act allegation. Broten argues that the trial judge erred in allowing the State to commit him without proving a recent overt act. Broten raises a number of other issues, including whether the court erred in admitting an expert’s opinion based in part on actuarial studies, whether the commitment statutes violate due process, whether the court erred in instructing the jury, and whether his counsel was effective.² We hold that the court erred in allowing the State to commit Broten without proof of a recent overt act. Accordingly, we reverse and remand for a new trial.

FACTS

Richard Broten was convicted of indecent liberties in 1986 and first degree rape of a child in 1989. During mandatory polygraph interviews, he admitted to sexually offending against 35-60 victims. He began sexually offending as a child; his victims included children of both sexes, teenage, adult, and elderly women, relatives, friends, and strangers.

While on parole for the indecent liberties charge, Broten raped his infant daughter. He served a 75-month sentence in prison for this offense and then was released to community custody. During his community custody time, he “cruis[ed]” malls and parks, picked up a prostitute, possessed pornography, masturbated to fantasies of small children (including his daughter), and pursued a relationship with a mother of a small child, among other things. Report of Proceedings at 104. With each incident, Broten violated the terms of community custody; he was returned to incarceration a number of times. Ultimately, the judge revoked his community custody status, and he was serving the remainder of his original sentence when the State filed this sexually violent predator petition.

The State’s expert, Dr. Dreiblatt, testified that in his opinion Broten was a sexually violent predator. Dr. Dreiblatt had reviewed police reports, psychology reports, the Department of Corrections file, and reports from various treatment programs. He had also talked with Broten’s therapists and interviewed Broten. He used four actuarial instruments to help determine the likelihood that Broten would reoffend. Broten had also retained an expert, but the expert apparently agreed with Dr. Dreiblatt’s findings and Broten did not offer his testimony. Broten’s counsel did cross-examine Dr. Dreiblatt about his actuarial tools.

The jury found that Broten suffered from a mental or personality disorder that made it difficult for him to control his behavior and made him likely to engage in future predatory sexual violence if not confined. The trial court accordingly ordered him committed, and he appeals.

ANALYSIS

Recent Overt Act

To involuntarily commit a person under the sexually violent predator act (SVPA), the State must prove beyond a reasonable doubt that the person is a sexually violent predator. RCW 71.09.060(1). 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.” RCW 71.09.020(16). If the person is not “totally confined” at the time the State files the petition, the State must, in addition to the other elements, prove that the person has committed a recent overt act. RCW 71.09.060(1), .020(10). But when,

on the day a sexually violent predator petition is filed, an individual is incarcerated for a sexually violent offense, RCW 71.09.020(6), or for an act that would itself qualify as a recent overt act, RCW 71.09.020(5), due process does not require the State to prove a further overt act occurred between arrest and release from incarceration.

In re Det. of Henrickson, 140 Wn.2d 686, 695, 2 P.3d 473 (2000). A recent overt act is an act that causes harm or creates a reasonable apprehension of harm of a sexually violent nature. RCW 71.09.020(10).

Broten contends that since he was incarcerated for violating the conditions of community placement, not for the original offense, the State was required to prove a recent overt act.

Division One of this court recently considered this issue. In re Det. of Davis, 109 Wn. App. 734, 37 P.3d 325 (2002). Davis was arrested and incarcerated for violating his community placement terms. Davis, 109 Wn. App. at 737. While he was in prison for this violation, the State filed a petition under the SVPA. Davis, 109 Wn. App. at 737. The court found that under a literal reading of the SVPA, the State would not have to prove that Davis committed a recent overt act. Davis, 109 Wn. App. at 743. But to equate incarceration for a community placement violation with incarceration for a sexually violent offense was fundamentally unfair, the court said, and raised due process concerns. Davis, 109 Wn. App. at 744.

To comport with due process, the State’s statutory obligation to plead and prove a recent overt act beyond a reasonable doubt should not turn on whether the individual is found, by only a preponderance of the evidence, to have violated community placement terms which may be vague or relatively insignificant.

Davis, 109 Wn. App. at 745.

Our Supreme Court has further clarified the role of due process in SVPA cases. In re Det. of Albrecht, 147 Wn.2d 1, 51 P.3d 73 (2002). After serving a sentence for child molestation, Albrecht was released to community placement. Albrecht, 147 Wn.2d at 4. He violated conditions of his community placement and was sanctioned with jail time. Albrecht, 147 Wn.2d at 5. While he was in jail for the community placement violation, the State filed a petition to commit Albrecht under the SVPA; the court allowed the State to do so without the need to prove a recent overt act. Albrecht, 147 Wn.2d at 5-6. The court agreed that due process does not require the State to prove a recent overt act when the alleged sexually violent predator has not been released into the community since his last conviction. Albrecht, 147 Wn.2d at 10. But “[ajffcer the offender has been released into the community, proof of a recent overt act is no longer an impossible burden for the State to meet.” Albrecht, 147 Wn.2d at 10. “[O]nce the offender is released into the community, as Albrecht was, due process requires a showing of current dangerousness.” Albrecht, 147 Wn.2d at 10. The State is relieved of its burden of proving a recent overt act only if the offender has not been released from total confinement since he was convicted. Albrecht, 147 Wn.2d at 10.

Here, Broten had served his jail sentence and was released to community custody. But after too many violations, his community custody status was revoked and he was returned to prison to serve the remainder of his original sentence. He was incarcerated when the State filed its petition, but he had spent time in the community and had the opportunity to overtly act. Thus, “proof of a recent overt act [was] no longer an impossible burden for the State to meet.” Albrecht, 147 Wn.2d at 10. Accordingly, to meet due process standards, the State must prove that Broten committed a recent overt act.

But the State argues that Broten was at least incarcerated for acts that “constituted recent overt acts.” Resp. Br. at 27. The State is not required to prove a recent overt act if Broten was incarcerated for acts that qualify as recent overt acts. Henrickson, 140 Wn.2d at 695. “Recent overt act” at the time of Broten’s incarceration was defined as “any act that has either caused harm of a sexually violent nature or creates a reasonable apprehension of such harm.” Former RCW 71.09.020(5) (2000). We reject the argument for the same reasons the Davis court did. Broten was sanctioned for violating the conditions of his community placement. We have no record of that proceeding. And the jury in the sexually violent predator hearing made no finding that Broten had committed a recent overt act. We are left, then, with no finding by either a judge or jury that Broten committed a recent overt act.³

Thus, we reverse and remand for a new trial. At the new trial, the State must prove a recent overt act before Broten is committed. Because we remand for a new trial, we address only those issues that are likely to occur again.

A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.

Quinn-Brintnall, J., concurs.

1 Both Broten and the State use “community custody” and “community placement” interchangeably when discussing Broten’s status at the time the State filed the petition. But both agree that when the petition was filed, Broten was serving the remainder of his sentence. Thus, the distinction is irrelevant in resolving this case. We use the term “community custody” because Broten says he was returned to prison when his community custody status was terminated.

2 At oral argument, Broten raised the issue of less restrictive alternatives. We decline to consider this issue because Broten did not assign error to it. RAP 10.3(g).

3 Due process concerns would arise if the State sought to have the violations hearing judge find that the defendant’s conduct amounted to a recent overt act. Broten is entitled to a jury determination of his status as a sexually violent predator and the burden of proof is beyond a reasonable doubt. RCW 71.09.050(3), .060(1). The issue is not before us.