IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Detention of ) No. 80315-8-I ) DAMION BLEVINS ) DIVISION ONE ) Appellant. ) UNPUBLISHED OPINION ) ) )
HAZELRIGG, J. — Damion Blevins was found to be a sexually violent predator
(SVP) following a jury trial. Blevins had earlier entered a guilty plea to assault in
the second degree without a sexual motivation aggravator, so the State sought to
prove sexual motivation at the SVP trial. Prior to the SVP trial, Blevins moved to
bifurcate the determination of sexual motivation from the remainder of the
proceeding, but the motion was denied. Blevins argues on appeal that his due
process and equal protection rights were violated and that the court abused its
discretion concerning multiple evidentiary rulings. Blevins’ challenges are
unsuccessful in light of well-settled case law. As such, we affirm.
FACTS
Damion Blevins pleaded guilty in 2017 to assault in the second degree for
an attack on A.D. The original charges of robbery and rape were amended down
pursuant to the plea agreement and the State did not seek a sexual motivation
aggravator. However, the plea statement contained the following facts which No. 80315-8-I/2
Blevins expressly admitted after colloquy: that he intentionally assaulted A.D. “with
intent to commit the felony of rape 2nd degree.” In 2018, as Blevins was nearing
completion of his prison sentence, the State filed a petition to civilly commit him as
a “sexually violent predator” (SVP) under chapter 71.09 RCW. The SVP petition
provided notice of the State’s intent to prove that the assault in the second degree
was sexually motivated, which would render it a sexually violent offense as
required by the SVP statute.
Blevins’ civil commitment trial occurred in May and June of 2019. The
parties engaged in extensive pretrial litigation on several motions, including
whether the issue of sexual motivation should be bifurcated from the other portions
of the trial. The trial court denied Blevins’ motion to bifurcate. The State did not
call A.D. at trial and instead sought to prove the sexual assault through various
hearsay exceptions and documentary and physical evidence. Additionally, each
party presented expert testimony as to Blevins’ behavior and potential diagnoses
relevant to the SVP proceeding.
The jury returned a unanimous verdict finding Blevins met the statutory
criteria to be deemed a sexually violent predator. The verdict included a finding
that the assault in the second degree to which he had previously admitted guilt
was committed with sexual motivation. The trial court entered an order civilly
committing Blevins to the custody of the Department of Social and Health Services
“for control, care and treatment” in accordance with the SVP statute. Blevins now
appeals.
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ANALYSIS
I. Due Process and Cross-Examination of the Named Victim
A defendant in a criminal proceeding has a right to confront the witnesses
at trial. U.S. CONST. amend VI; Crawford v. Washington, 541 U.S. 36, 124 S. Ct.
1354, 158 L. Ed. 2d 177 (2004). “It is well settled that civil commitment is a
significant deprivation of liberty, and thus individuals facing SVP commitment are
entitled to due process of law.” In re Det. of Morgan, 180 Wn.2d 312, 320, 330
P.3d 774 (2014). “[A]lthough SVP commitment proceedings include many of the
same protections as a criminal trial, SVP commitment proceedings are not criminal
proceedings.” In re Det. of Stout, 159 Wn.2d 357, 369, 150 P.3d 86 (2007)
(emphasis in original). The SVP statute expressly provides for the respondent’s
right to cross-examine witnesses who testify against them at the probable cause
hearing on the initial petition. RCW 71.09.040(3)(c). However, “[i]t is well-settled
that the Sixth Amendment right to confrontation is available only to criminal
defendants.” Stout, 159 Wn.2d at 369. Like Stout, Blevins frames his
confrontation challenge as a violation of due process and equal protection. Id.
Blevins argues he was deprived of the right to meaningfully cross-examine
A.D. since he resolved his criminal case by entry of a guilty plea and neither party
called her as a witness in the SVP commitment trial. In particular, A.D.’s
allegations were utilized to prove that the assault in the second degree was
sexually motivated, despite the fact that no such aggravator was pleaded or proved
in the criminal proceeding. It is well-settled law that the State may establish the
sexual motivation of a conviction at the time of the SVP trial. RCW 71.09.020(17);
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In re Det. of Mines, 165 Wn. App. 112,120–21, 266 P.3d 242 (2011) (interpreting
the plain language of RCW 17.09.020(17) as allowing the State to establish sexual
motivation during SVP proceeding).
Blevins relies on Stout for the proposition that he was entitled to a prior
opportunity to cross-examine A.D. if her live testimony would not be introduced at
the SVP trial. However, Stout is unhelpful for Blevins. Like Blevins, Stout claimed
that his due process right to confront and cross-examine a witness against him
had been violated when a prior victim’s deposition was admitted during the SVP
trial. Stout, 159 Wn.2d at 362, 368. Stout had admitted guilt to a burglary charge
without a sexual motivation aggravator. Id. at 362. The State later alleged the
burglary was sexually motivated and constituted a sexually violent offense for
purposes of its SVP petition. Id. The State offered as evidence Stout’s guilty plea
in which he admitted assaulting the victim. Id. The State also offered the victim’s
testimony about the incident through two deposition transcripts and a video
recording of one of the depositions. Id. The victim refused to return to Washington
for the SVP trial and could not be subpoenaed. Id. at 362, 376. The Supreme
Court “entertain[ed] Stout’s confrontation claim only as it relates to his claimed
rights to due process and equal protection.” Id. at 369.
The Stout court went on to engage in the test set out in Mathews v. Eldridge
to determine whether the minimum requirement of due process had been provided.
Id. at 370 (citing Mathews, 424 U.S. 319, 334, 96 S. Ct. 893, 47 L. Ed. 2d 18
(1976)).
In determining what procedural due process requires in a given context, we employ the Mathews test, which balances: (1) the private
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interest affected, (2) the risk of erroneous deprivation of that interest through existing procedures and the probable value, if any, of additional procedural safeguards, and (3) the governmental interest, including costs and administrative burdens of additional procedures.
Id. The first factor was found to weigh in Stout’s favor since a respondent to an
SVP petition has a significant interest in their physical liberty. Id. The second
factor, “the risk of erroneous deprivation of that interest through existing
procedures and the probable value, if any, of additional procedural safeguards”
was determined to weigh in the State’s favor as it has in most other cases. Id.
This is due to the comprehensive set of rights that exist for SVP detainees to
protect against the risk of an erroneous deprivation of liberty. Id.; see also In re
Det. of Coe, 175 Wn.2d 482, 510–11, 286 P.3d 29 (2012); Morgan, 180 Wn.2d at
321–22.
In particular, the Stout court noted “there would be little value in adding a
confrontation right to the procedural safeguards available to an SVP detainee.”
159 Wn.2d at 371. The court reinforced that the victim’s deposition was under
oath and that Stout could have reviewed the depositions for inconsistencies and
impeached her at any subsequent deposition. Id. The final factor, governmental
interest, including costs and administrative burdens of additional procedures, was
found, and consistently continues to be found, to weigh in the State’s favor. Id.;
see also Coe, 175 Wn.2d at 511–12; Morgan, 180 Wn.2d at 322. The Stout court
recognized that:
If an SVP commitment takes place several years after the predicate convictions and if a determination of sexual motivation was not made at the time of sentencing, it is unduly burdensome to require the State to build its case around a right to confrontation that adds only marginal protection for an SVP against liberty deprivation.
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159 Wn.2d at 372. Because confrontation would only add marginal protection in
an SVP trial, our supreme court has expressly declined to include that right in the
list of those already held by the respondent in this context.
Here, Blevins argues that while he,
adopted a factual statement in his plea form that stated that he committed the assault with intent to commit rape in the second degree,[] he in no way admitted to the sexual assault allegation that was present at trial[,] which formed the basis of the experts’ opinions.
However, in Abolafya v. State, this division squarely rejected the assertion that a
violation of the plea agreement occurs when a defendant pleads to a lesser crime
without a sexual motivator and the plea is later utilized to prove the crime was
sexually motivated in a civil SVP proceeding.1 114 Wn. App. 137, 147, 56 P.3d
608 (2002).
Further, Coe addressed the question of whether an expert could rely on
thirty-six unadjudicated offenses that included rape and indecent exposure
incidents in forming their opinion that Coe met the statutory definition of a sexually
violent predator. 175 Wn.2d at 509–13. Our state’s supreme court held an expert’s
reliance on reports of five assaults in which the victims were unavailable to testify
did not violate due process. Id. The court reiterated, “that a defendant in an SVP
proceeding has no right to confront witnesses, either in trial or in deposition.” Id.
at 509 (citing Stout, 159 Wn.2d at 368–74). The Coe court went through the
Mathews factors in a matter nearly identical to the court in Stout. Id. at 510–12.
1 While this is not precisely Blevins’ argument, it is clear that the use of his plea agreement to prove sexual motivation at the SVP trial was not improper.
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But in Coe, the Supreme Court went even further as to the second factor.
It determined that, despite an absence of facts like those in Stout where the jury
was able to assess the victim’s testimony through depositions, Coe had been
provided significant safeguards such that there was little concern that jurors could
not evaluate the accusers upon which the expert had relied in forming their opinion.
Id. at 510. The court reinforced that Coe received the same statutory safeguards
as those in Stout, such as right to counsel, a jury trial, and a unanimous verdict
with the State carrying the burden of proof beyond a reasonable doubt. Id. at 511.
Here, Blevins’ claim is unsuccessful as nothing in the facts of this case
suggest that the Mathews factors do not weigh out as they have in previous SVP
due process challenges in our state. See Stout, 159 Wn.2d at 370–74; Coe, 175
Wn.2d at 509-12; Morgan, 180 Wn.2d at 320–23. The first factor, the private
interest affected, clearly weighs in Blevins’ favor, as it would in all SVP proceedings
since something in which he has a strong interest, his physical liberty, is at stake.
The most contentious is the second factor; the risk of erroneous deprivation
of that interest through existing procedures and the probable value, if any, of
additional procedural safeguards. Blevins argues that this factor weighs in his
favor and the situation is distinct from the respondents in Coe and Stout since
depositions were taken in Stout and, in Coe, the unadjudicated allegations were
only utilized in the formation of the expert’s opinion. While this may be factually
correct, as to the analysis relied upon in each case, the statutory safeguards for
Blevins were identical, particularly as to the analysis and holding in Coe. Blevins
was represented by counsel, had a jury trial which required a unanimous verdict,
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and the State carried the burden of proving the allegations in its petition beyond a
reasonable doubt. Importantly, at oral argument before this court, Blevins admitted
to not having attempted to depose A.D. As in Coe, the second factor weighs in the
State’s favor because of the statutory safeguards present in Blevins’s SVP trial.
The third factor, the governmental interest, including costs and
administrative burdens of additional procedures, should be weighed the same as
in the prior cases. The State has a significant interest in preventing individuals
from committing further sex offenses. See Stout, 159 Wn.2d at 371; Coe, 175
Wn.2d at 511–12. The State has an interest in streamlining procedures to avoid
the financial burden of live testimony and such a burden would be difficult to justify
given the marginal protection confrontation would provide to the respondent’s
liberty interest. Therefore, the factor weighs in the State’s favor, as does the
overall balancing of the Mathews factors.
Ultimately, Blevins fails to establish why we should depart from the well-
settled law as to what due process is owed to a respondent in an SVP proceeding.
Both this court and the Supreme Court have repeatedly indicated that the
procedural safeguards provided by statute are sufficient. We find no violation of
Blevins’ due process rights.
II. Equal Protection Challenge to SVP Trial
Blevins argues that allowing the State to prove sexual motivation in the civil,
rather than the criminal, proceeding violates his right to equal protection. “The
Washington Constitution article I, section 12, and the Fourteenth Amendment to
the United States Constitution ensure that persons similarly situated as to the
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legitimate purposes of a law receive equal treatment.” State v. McClinton, 10 Wn.
App. 2d 236, 242, 448 P.3d 101 (2019). We construe both our state and the federal
equal protection clause identically. Id. In the context of reviewing involuntary
commitment statutes we utilize a rational basis standard. Abolafya, 114 Wn. App.
at 146. “Rational basis applies when a statutory classification does not involve a
suspect or semisuspect class.” McClinton, 10 Wn. App. 2d at 243. It is the party
making the challenge that has the burden to establish that the classification is
purely arbitrary. Id. “Under rational basis review, the challenged law must reflect
a legitimate state objective, and the law must not be wholly irrelevant to achieving
that objective.” Id.
This court’s analysis in Abolafya is directly on point in addressing this
challenge by Blevins and clearly indicates that no such violation occurs when the
State seeks to establish sexual motivation in the SVP proceeding. Blevins’ claim
is nearly identical to Abolafya’s, which was:
that by allowing sexual motivation to be proved at the civil commitment proceeding two classes of people are created with no legitimate purpose for treating them differently. The first class consists of respondents who received the full procedural protections of a criminal trial on the predicate offense and special allegation of sexual motivation. The second class consists of respondents who are forced to defend against a special allegation of sexual motivation at a civil trial during which they have no right to remain silent and during which there will be presentation of evidence that would have been inadmissible at the criminal trial.
114 Wn. App. at 145. Blevins makes essentially the same facial challenge to RCW
71.09.020 as Abolafya, which was rejected by this division. In Abolafya, we
explained that this sort of challenge does not even establish two similarly situated
classes of individuals.
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Abolafya argues that he is similarly situated to people who have already faced criminal sanctions for a special allegation of sexual motivation and who are now facing civil commitment as a result of that criminal conviction. This is incorrect. Abolafya is now facing only civil commitment, not criminal sanctions. Criminal defendants face increased prison sentences or periods of probation for findings of sexual motivation. Constitutionally they are afforded greater protections than civil respondents. Abolafya is not similarly situated to criminal defendants facing an allegation of sexual motivation.
Id. at 146. This opinion has not been called into doubt by subsequent case law in
its nearly twenty years of existence. We are disinclined to accept Blevins’ invitation
to depart from the analysis in Abolafya. As such, Blevins has failed to establish
the first step of an equal protection challenge: demonstrating differing treatment
between similarly situated classes.
III. Evidentiary Rulings
Finally, Blevins challenges three specific evidentiary rulings by the trial
court. We review a trial court’s decision to admit or exclude evidence for an abuse
of discretion. In re Det. of West, 171 Wn.2d 383, 396, 256 P.3d 302 (2011). A trial
court abuses its discretion when its decision is based on untenable grounds or is
manifestly unreasonable. Id. at 397.
A. Evidence of Poverty and Lack of Resources
Though Blevins attempts to frame this as a due process violation, the
assignment of error is more properly understood as a challenge to an evidentiary
ruling which does not rise to the level of substantive due process. Blevins asserts
the court erred in ruling that his lack of community support could be discussed;
particularly its conclusion that it was relevant to the jury’s determination of his risk
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to reoffend if not confined to a secure facility. See RCW 71.09.060(1). The trial
court weighed the proffered evidence and concluded admission was proper. In
addition, the record suggests that it was Blevins who extensively discussed his
poverty and tumultuous background at trial.
During the pretrial hearing on motions in limine, Blevins argued that any
information about his release plan was not relevant to the commitment proceeding.
However, the trial court pointed out that it went to the jury’s assessment of whether
he was likely to reoffend if not confined in a secure facility, which is a necessary
element to be determined by the jury. RCW 71.09.060(1). The court did agree
with Blevins that the proper test was one of general admissibility; to weigh the
probative value against the potential prejudice that might come from the evidence.
See ER 402, 403. The trial court relied on In re Detention of West in making its
determination that the evidence was generally proper and then specifically
considered whether information related to Blevins’ release plan had a probative
value which outweighed any prejudicial effect. 171 Wn.2d 383.
The State correctly points out that the only testimony elicited about Blevins’
poverty was by his own counsel when questioning the State’s expert, Dr. Harry
Goldberg, about whether his assessment would have changed if Blevins’ family
was wealthy. One example of a question posed by Blevins’ counsel was:
Q: For somebody who has been raised like, you know, Damion Blevins, from a single mother, in a poverty, joins gangs, I mean, it would be a miracle for that person not to be diagnosed with ASPD2; correct?
2 Antisocial personality disorder.
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This question followed Blevins’ earlier focus in cross-examination on his upbringing
by a “single mother,” in “poverty,” and “involved [with] gangs.” The State did briefly
explore how Blevins’ inability to maintain employment impacted Goldberg’s risk
assessment, however questioning was not particularly focused on Blevins’
upbringing or lack of resources. Blevins emphasized those issues and framed
questions in terms of his resources and background, which appears to have been
part of his trial strategy. The trial court did not abuse its discretion in allowing
evidence of Blevins’ lack of community support.
B. Evidence of Potential Future Proceedings
Blevins next argues that the trial court erroneously deprived him of the
opportunity to demonstrate that he could be subject to involuntary commitment in
the future based on commission of a recent overt act. The posture by which
Blevins presents this issue is directly addressed by In re Detention of Post. 170
Wn.2d 302, 316–17, 241 P.3d 1234 (2010). The Post court determined evidence
that a respondent could be subject to further SVP proceedings if they committed a
recent overt act might be properly admitted if the evidence was indicative that the
respondent understood that they were so subject and that understanding had
“some tendency to diminish the likelihood of his committing another predatory act
of sexual violence.” Id. Here, the trial court determined such evidence was not
relevant because Blevins did not admit to having any issues or urges that needed
to be addressed and further denied that any of the sexual assault allegations had
merit. The trial court interpreted this information to mean that potential future filings
would not act as a deterrent for Blevins.
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On appeal, Blevins frames the issue by asserting that the court should not
have relied upon his statements because he was not an accurate self-reporter.
This argument is not well taken, nor does it appear that it was presented to the trial
court. The trial court properly weighed the evidence. It determined that since
Blevins did not appear to be concerned with such consequences, and went so far
as saying that his risk of “future violent hands-on sexual offenses against a woman”
is zero, evidence of the potential for future filings by the State based on a recent
overt act was properly excluded. This ruling by the trial court does not constitute
an abuse of discretion.
C. Presumption of Non-commitment
Blevins’ final challenge assigns error to the trial court’s refusal to allow him
to argue in closing that he was presumed not to be a sexually violent predator.
Blevins attempts to distinguish his circumstances from current case law, arguing
the prior cases have addressed a respondent’s request for a jury instruction on a
presumption of non-commitment, as opposed to merely allowing such argument in
closing. It is difficult to reconcile this distinction with the case law in our state.
Division Three of this court put it quite bluntly in In re Detention of Twining: “The
short answer is that this is not a criminal case, and criminal constitutional
protections are not applicable beyond those supplied in the statute and those
granted in [In re Detention of Young, 112 Wn.2d 1, 857 P.2d 989 (1993)].” 77 Wn.
App. 882, 895, 894 P.2d 1331 (1995), overruled on other grounds, In re Det. Of
Pouncy, 168 Wn.2d 382, 229 P.3d 678 (2010) (citing Young, 112 Wn.2d at 47–
51). Though these cases have been overturned or superseded on other grounds,
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In re Detention of Law reinforced that Young and Twining are still good law as far
as the proposition that neither the presumption of innocence, nor a presumption of
non-commitment, apply to an SVP proceeding. 146 Wn. App. 28, 48–49, 204 P.3d
230 (2008).
Again, Blevins initially frames this challenge as a due process violation in
briefing, but later characterizes the denial of his request as an abuse of discretion
by the trial court. Though Blevins focuses on the ability to argue presumption of
non-commitment to the jury in closing and attempts to distinguish the precedent as
focused on jury instructions, this is a ruling on a motion in limine which is reviewed
under an abuse of discretion standard. In light of the controlling case law, the trial
court did not abuse its discretion.
Affirmed.
WE CONCUR:
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