IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Detention of No. 79377-2-I DAVID JAMES LEWIS, DIVISION ONE Appellant. UNPUBLISHED OPINION
APPELWICK, J. — Lewis, an adjudicated sexually violent predator, appeals
from a verdict denying his conditional release. He argues the trial court erred in
(1) granting the State judgment as a matter of law, (2) denying Lewis judgment as
a matter of law, (3) excluding his housing declaration as hearsay, (4) changing the
venue from Columbia County to Snohomish County, and (5) denying his motion to
exclude the term “sexually violent predator” from use at trial. We reverse the CR
50 ruling, but affirm the jury verdict denying release.
FACTS
David Lewis was sent to prison in 1992 after he pleaded guilty to two counts
of child molestation. In May 2005, Lewis was adjudicated as a “sexually violent
predator” (SVP) and involuntarily committed to the special commitment center. He
has remained in an institution from that time forward.
Involuntarily committed SVPs may petition for release from commitment. RCW
71.09.090. Lewis petitioned for conditional release to a less restrictive alternative
(LRA). RCW 71.09.090(2). An LRA is a “court-ordered treatment in a setting less
restrictive than total confinement which satisfies the conditions set forth in RCW
Citations and pin cites are based on the Westlaw online version of the cited material. No. 79377-2-I/2
71.09.092.” RCW 71.09.020(6). Those conditions include a specific treatment plan
and a housing provider. RCW 71.09.092(1)-(5).
In January 2018, a show cause hearing was scheduled in Columbia County
to consider Lewis’s LRA plan. In March 2018 the court issued an order on show
cause hearing1 ordering a trial on the issue of Lewis’s conditional LRA and a
discovery order setting a conditional release trial2 date.
In July 2018, the State sought a change of venue to Snohomish County.
Lewis objected. The court granted the motion and transferred venue to Snohomish
County. Lewis filed a notice for discretionary review in the Court of Appeals.
Lewis’s motion for discretionary review was denied, finding the issue moot.
The case went to trial in Snohomish County Superior Court in October 2018.
Evidence regarding Lewis’s proposed housing was admitted without objection. A
mistrial was declared due to juror misconduct.
Before the second trial, the parties agreed to retain prior rulings on motions in
limine. This included a denial of Lewis's motion to exclude the term “sexually violent
predator” on the basis that it is a statutorily created legal term.
In December 2018, the second trial began. The State moved to exclude
portions of the LRA proposed by Lewis. It objected to the admission of housing
provider Theodora Wright’s declaration and any related testimony on hearsay
grounds. Lewis’s attorney argued for admissibility of the declaration on several
1 The order on show cause states that it is based on the evidence presented at the January 10, 2018 hearing, but the court docket indicates that the hearing was stricken and the order was entered by stipulation. 2 The statutory scheme refers to this stage as both a “conditional release
trial,” RCW 71.09.090(2)(b)(ii)(B), and as a “hearing,” RCW 71.09.090(2)(a)(ii).
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grounds. The trial court ruled that the declaration and other testimony were
inadmissible hearsay. It redacted the portions of the social worker’s release plan
declaration that were related to housing and excluded the housing provider’s
declaration. Because neither party called the housing provider as a witness, the
trial court found that there was no direct evidence regarding the housing provider’s
available apartment or agreement to comply with statutory requirements.
At the conclusion of the evidentiary phase, both parties sought judgment as
a matter of law. The State argued it was entitled to judgment as a matter of law
under RCW 71.09.094(1), since Lewis had failed to establish his plan met statutory
housing requirements. Lewis argued he was entitled to judgment as a matter of law
under CR 50, as the State’s failure to introduce the housing component of his plan
made it impossible for the State to meet its evidentiary burden.
After the jury had returned a verdict in the State’s favor, the trial court
granted the State’s motion and denied Lewis’s motion. The trial court opined that
although the issue might be moot, guidance from this court would be useful as “the
law remains unclear.”
Lewis timely appeals.
DISCUSSION
I. Motions for Judgment as a Matter of Law
CR 50(a)(1) authorizes a court to grant judgment as a matter of law where
there is no legally sufficient evidentiary basis for a jury to find in favor of the
nonmoving party. “Granting a motion for judgment as a matter of law is appropriate
when, viewing the evidence most favorable to the nonmoving party, the court can
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say, as a matter of law, there is no substantial evidence or reasonable inference
to sustain a verdict for the nonmoving party.” Sing v. John L. Scott, Inc., 134 Wn.
2d 24, 29, 948 P.2d 816 (1997). We review a motion for judgment as a matter of
law de novo. Lodis v. Corbis Holdings, Inc., 192 Wn. App. 30, 62, 366 P.3d 1246
(2015).
A. The State’s Motion
After portions of the proposed LRA plan Lewis submitted were stricken
pretrial as hearsay, neither party called the housing provider as a witness. At the
conclusion of the second trial, the State moved for judgment as a matter of law
under RCW 71.09.094(1). The State argued Lewis had failed to establish that his
plan satisfied the housing requirements in RCW 71.09.092(3). The trial court held,
given the lack of sufficient evidentiary support, no reasonable jury could find the
statutory condition had been met. As a result, the court found that “a strict reading
of the statute requires judgment as a matter of law in the state’s favor.”
The order was granted after the jury returned a verdict denying conditional
release. The trial court acknowledged the order might be moot, but noted in the
order that guidance on this issue would be useful to practitioners. The State
briefed the issue, arguing the order was correct. Prior to oral argument, the State
withdrew its argument. The State’s concession is well taken.
RCW 71.09.094(1) provides that upon the conclusion of the evidence in a
show cause hearing, “if the court finds that there is no legally sufficient evidentiary
basis for a reasonable jury to find that the conditions set forth in RCW 71.09.092
have been met, the court shall grant a motion by the State for a judgment as a
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matter of law.” No provision is made for similar motions during the conditional
release trial. This motion was improper.
We accordingly reverse the trial court’s grant of the State’s motion for
judgment as a matter of law.
B. Lewis’s Motion
Lewis argues he was entitled to judgment as a matter of law under CR 50
because the State failed to introduce the housing component of his plan. He
contends that once his plan was deemed sufficient at a show cause hearing, the
State was obligated to admit the entire plan. He argues, failing to do so made it
impossible for the State to prove beyond a reasonable doubt his proposed LRA
was statutorily insufficient.
The language of RCW 71.09.094(1) and RCW 71.09.092 does not
expressly provide that the State must introduce the plan. Further, the jury is not
specifically asked whether the plan satisfies 71.09.092. Rather, it is instructed
under RCW 71.09.094(2) which provides,
Whenever the issue of conditional release to a less restrictive alternative is submitted to the jury, the court shall instruct the jury to return a verdict in substantially the following form: Has the state proved beyond a reasonable doubt that either: (a) The proposed less restrictive alternative is not in the best interests of respondent; or (b) does not include conditions that would adequately protect the community? Answer: Yes or No.
To the extent the plan factors into the answer to these questions, the expert
witnesses are free to offer opinions relative to that purpose. See ER 702, 703; In
re Det. of P.K., 189 Wn. App. 317, 324-35, 358 P.3d 411 (2015) (holding the trial
court properly admitted expert witness testimony relying upon inadmissible records
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as the basis of her opinion that his LRA should be revoked). Here, the majority of
the LRA was entered into evidence. And, the State produced witnesses, such as
Dr. Amy Phenix, who opined on whether the plan met the statutory requirements.
So, it was possible for a jury to find the State met its burden without looking at the
declaration.
And, the State did not argue before the jury at closing that Lewis’s housing
plan was insufficient. Instead, the State relied on evidence “indicative of [Lewis’s]
absolute lack of the ability to be transparent,” rendering him more likely to fail to
adhere to treatment in the community. Viewed in the light most favorable to the
State, there was sufficient evidence to sustain a verdict that the plan was not in
Lewis’s interest or was insufficient to protect the public.
We affirm the trial court’s denial of Lewis’s motion for judgment as a matter
of law.
II. Exclusion of Portion of LRA on Hearsay Grounds
The declaration of Lewis’s housing provider as well as related testimony
referencing housing were excluded as inadmissible hearsay. The declaration from
his housing provider was an out-of-court statement, but Lewis argues that the court
erred in holding the declaration was offered to prove the truth of the matter
asserted.
Out-of-court statements offered in court to prove the truth of the matter
asserted are hearsay, which is generally not admissible unless an exception
applies. ER 801(c), 802. The admission of evidence under a hearsay exception
is reviewed for abuse of discretion. State v. Heutink, 12 Wn. App. 2d 336, 356,
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458 P.3d 796, review denied, 195 Wn.2d 1027, 466 P.3d 775 (2020). However,
whether or not a statement was hearsay is reviewed de novo. State v. Gonzalez-
Gonzalez, 193 Wn. App. 683, 688-89, 370 P.3d 989 (2016).
Under RCW 71.09.092, “[b]efore the court may enter an order directing
conditional release to a less restrictive alternative, it must find . . . housing exists
in Washington that is sufficiently secure to protect the community, and the person
or agency providing housing to the conditionally released person has agreed in
writing to accept the person, to provide the level of security required by the court,
and immediately to report to the court, the prosecutor, the supervising community
corrections officer, and the superintendent of the special commitment center if the
person leaves the housing to which he or she has been assigned without
authorization.” The factual content of the housing declaration, not its existence, is
relevant. If the housing provider’s declaration was not offered to demonstrate the
truth of the housing provider’s assertions, then the trial court could not have made
the necessary findings and the declaration served little purpose. The trial court
correctly determined the out-of-court statement was being offered to prove the
truth of the matter asserted.
A. No Applicable Hearsay Exception
Lewis argues the proposed plan is admissible as the subject of litigation,
similar to a will or a contract, because jurors at a conditional release trial are
directed to consider the proposed LRA under RCW 71.09.094(2). He relies on
Stuart v. UNUM Life Insurance Co. of America, 217 F.3d 1145, 1154 (9th Cir.
2000), which concerned an insurance policy. But, the insurance policy was
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admitted under Federal Rules of Evidence 801(c) because it was excluded from
the definition of hearsay as a statement affecting the legal rights of the parties, not
as the subject of litigation. Id. Unlike the insurance policy in Stuart, the housing
declaration in Lewis’s LRA plan is not being offered to show that it has been signed
by both parties. It is relevant only insofar as it demonstrates the truth of its
assertions regarding whether his proposed housing satisfies statutory
requirements. The declaration is hearsay, and does not fall under any hearsay
exception.
Next, Lewis argues the housing provider’s declaration is not hearsay
because statutory language requiring the plan to include the agreement in writing
makes its existence an operative fact. RCW 71.09.092(3). Similarly, Lewis relies
on United States v. Iverson, 818 F.3d 1015, 1020-21 (10th Cir. 2016), where
statements in a Federal Deposit Insurance Corporation (FDIC) certificate and on
the FDIC website were at issue, admissible not as operative facts but as public
record. Further, it is not the mere existence of a housing declaration, but what it
details that is relevant to a conditional release trial.
Unlike an insurance policy or administrative website, the excluded LRA
documents do not fall under an express exception to the rule against hearsay.
B. LRA as Basis of Witness’s Opinion
Lewis asserts the housing provider’s declaration and related documents
should have been admitted for the limited purpose of explaining the basis for Dr.
Christopher Fisher’s opinion. He argues expert witnesses’ reliance on the
documents rendered them admissible under ER 703.
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Experts may rely on inadmissible facts if of the type reasonably relied on by
experts in their field. Allen v. Asbestos Corp., 138 Wn. App. 564, 579, 157 P.3d
406 (2007). Both cases cited by Lewis address the ability of experts to testify about
out-of-court statements, not the admittance of the underlying documents. In re
Det. of Leck, 180 Wn. App. 492, 513, 334 P.3d 1109) (2014) (expert could refer to
hearsay); P.K., 189 Wn. App. at 324-35 (expert could testify about contents of
medical records as the basis of her opinion, not as substantive evidence).
However, neither case holds this use provides a basis to admit the underlying
documents under ER 703.
C. Due Process Violation
Lewis contends that under both the Fourteenth Amendment and the
statutory scheme under RCW 71.09.094, the State bears the burden of proof in
conditional release trials. Therefore, holding that the State can meet its burden by
excluding the LRA plan as hearsay, impermissibly shifted the burden of production
to Lewis to provide live testimony, in violation of his due process rights.
Here, Lewis relies on In re Detention of Turay, 139 Wn.2d 379, 423-24, 986
P.2d 790 (1999) (citing Foucha v. Louisiana, 504 U.S. 71, 86, 112 S. Ct. 1780, 118
L. Ed. 2d 437 (1992)). In Turay, our Supreme Court affirmed the trial court’s
holding that the state bears the burden of proof at show cause hearings. Id. at
424. The court cited Foucha, concluding due process requires the State to bear
the burden in civil commitment proceedings, which “buttress[es] the ruling of the
trial court.” Id. at 423-24. Thus, Lewis contends that the State must admit the
plan. But, neither Foucha nor Turay held that the State had to introduce the LRA
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plan as part of due process. Nor did either case hold that a trial court must create
an exception to the hearsay rule to admit such materials.
While the burden of proof at an LRA trial is upon the State, our Supreme
Court has held that the statutory scheme assigning petitioners the burden of
producing a currently available housing plan does not unconstitutionally shift the
burden away from the State. In re Det. of Skinner, 122 Wn. App. 620, 627-29, 94
P.3d 981 (2004). RCW 71.09.090(2)(b) expressly provides that a show cause
hearing “may be conducted solely on the basis of affidavits or declarations.” The
housing declarations Lewis offered were properly admitted and considered at the
show cause hearing. However, there is no similar exception provided for evidence
submitted at conditional release trials.
We affirm the trial court’s finding that the documents excluded at trial were
inadmissible hearsay.
III. Change of Venue to Snohomish County
Third, Lewis asserts that the Columbia County Superior Court erred when
it ordered a change of venue to Snohomish County.
This court reviews a trial court’s ruling motion to transfer venue for abuse of
discretion. Hickey v. City of Bellingham, 90 Wn. App. 711, 719, 953 P.2d 822. The
court abuses its discretion where the exercise of discretion is “manifestly
unreasonable, or exercised on untenable grounds, or for untenable reasons.”
State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
RCW 4.12.030 authorizes the trial court to transfer venue on specific
grounds, including where (1) the designated county is improper, (2) there is reason
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to believe an impartial trial cannot be held therein, or (3) the convenience of
witnesses or ends of justice would be forwarded by such change. Lewis
challenges these three statutory grounds for transfer.
Lewis argues Columbia County was the proper venue. It does not appear
from the record that the trial court purported to grant transfer on grounds that
Columbia County was not the proper venue under RCW 4.12.030(1). As such, this
point is not dispositive.
Lewis also contends the court erred in transferring on RCW 4.12.030(2)
grounds that there was reason to believe an impartial jury could not be empaneled.
In granting the change of venue, the court relied in part on the affidavit of
Prosecuting Attorney Rea Culwell. Culwell stated that in July cases, “many jurors
are or will be working [the] wheat and pea harvest as their sole source of income
and are readily excused by the judge.” Lewis argues because the court struck the
July trial date, there was no longer an issue empaneling jurors during the harvest
season. But, the record supports difficulty empaneling an impartial jury outside of
harvest season as well. For instance, many county residents knew about Lewis’s
underlying crimes. The trial court found that spending the resources “vetting a
jury” would “prove unfruitful.” The trial court did not abuse its discretion in granting
a change of venue based on such a finding.
Finally, Lewis also addresses RCW 4.12.030(3). He contends the “ends of
justice” did not support a change in venue. Further, he argues that the court was
not justified in transferring on RCW 4.12.030(3) grounds of “convenience of
witnesses” absent declarations of the witnesses or equivalent support.
11 No. 79377-2-I/12
Appellants must provide “argument in support of the issues presented for
review, together with citations to legal authority and reference to relevant parts of
the record.” RAP 10.3(a)(6). Lewis has provided no legal authority for such a
specific evidentiary requirement. Here, the record indicates all witnesses would
be travelling from western counties. It was within the discretion of the court to
consider the traveling distances of various witnesses when considering a motion
to transfer venue. Id. The record is sufficient for a court to have reasonably
concluded moving the venue would further the convenience of witnesses.
We affirm the Columbia County Court’s order transferring venue to
Snohomish County.
IV. Inclusion of the Term “Sexually Violent Predator”
Finally, Lewis asserts the trial court erred in denying his motion in limine to
exclude use of the term “sexually violent predator.”
Parties disagree over the correct standard of review for this decision. Citing
an unpublished case, Lewis argues this issue should be reviewed de novo
“because it involves an issue of law.”
The State cites State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995),
which held that appellate courts review trial court rulings on motions in limine for
abuse of discretion. The State also asserts that to the extent Lewis is challenging
the jury instruction language that too is a matter of discretion. A trial court abuses
its discretion if its decision is manifestly unreasonable or is based on untenable
grounds, or for untenable reasons. In re Pers. Restraint of Duncan, 167 Wn.2d
398, 402, 219 P.3d 666 (2009).
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It was reasonable for the court to conclude that the use of the term was
appropriate because it was a statutorily created legal term. Reviewing de novo,
the term is defined by RCW 71.09.020(18). This court has found the use of the
word “victim” not to be a comment on the evidence. State v. Alger, 31 Wn. App
244, 249, 640 P.2d 44 (1982). Using the term “sexually violent predator” is
arguably no different. Further, the court mitigated its potential prejudicial effect by
informing the jury that the term is not a diagnostic term but a legal one.
We affirm the trial court’s denial of Lewis’s motion in limine to exclude the
term “sexually violent predator.”
We reverse the CR 50 ruling, but affirm the jury verdict denying release.
WE CONCUR: