In Re The Detention Of Edward G. Payne, Jr.

• Court: Court of Appeals of Washington
• Decided: May 9, 2023
• Docket: 56894-2
• Status: Unpublished

Opinion

Filed Washington State Court of Appeals Division Two

May 9, 2023

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II In the Matter of the Detention of: No. 56894-2-II

EDWARD GUY PAYNE, JR., UNPUBLISHED OPINION

Petitioner.

MAXA, P.J. – Edward Payne appeals the trial court’s civil commitment order committing

him as a sexually violent predator (SVP) under chapter 71.09 RCW. One of the elements that

the State was required to prove to obtain the commitment order was that Payne had committed a

“recent overt act.” Payne argues that the evidence was insufficient to prove this element beyond

a reasonable doubt.

We conclude that the State produced sufficient evidence that Payne had committed a

recent overt act. Therefore, we affirm the civil commitment order. No. 56894-2-II

FACTS1

Prior Offenses

In 1986, Payne pled guilty to indecent liberties against a child under the age of 14. The

victim of this offense was his 11-year-old cousin, and the offense occurred when Payne was at

his cousin’s house helping the family with yardwork.

In 1987, Payne pled guilty to two more counts of indecent liberties. These charges were

based on sexual contact with a six-year-old girl and a two-year-old boy, both of whom Payne had

babysat. These offenses occurred while Payne was on community supervision for the 1986

offense.

In 1996, Payne pled guilty to communication with a minor for immoral purposes. This

offense involved his adult girlfriend’s nine-year-old sister, and he was living in their home at the

time of the offense.

In 2008, Payne pled guilty to second degree child molestation. The victim was a friend’s

12-year-old daughter.

Community Custody Violations

Payne was released into community custody in May 2019 after serving his time in

confinement for the 2008 conviction. Upon his release, Payne was required to wear a GPS ankle

monitor and was advised of numerous community custody conditions. These conditions

included (1) having no access to the internet, web cams, or any device that could be used to take

photographs; (2) avoiding places where children congregate, including shopping malls; and (3)

1 Because we are addressing the sufficiency of the evidence, these facts are construed in the light most favorable to the State. State v. Homan, 181 Wn.2d 102, 105, 330 P.3d 182 (2014).

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requiring Payne to advise his community corrections officer (CCO) of any romantic relationships

to verify that no victim-age children were involved.

On September 17, 2019, Payne’s GPS ankle monitor alerted his CCO that Payne had

entered the Tacoma Mall though the food court entrance in violation of his community custody

conditions. A children’s play area and the restrooms are located in the food court area of the

mall.

Security video showed Payne enter the mall’s food court area, walk directly to the

restroom, remain in the restroom for seven to eight minutes, and then walk directly through the

food court tables and out the mall door. The security video did not show Payne approach the

children’s play area. Other public restrooms are located in other businesses outside of the mall

in the same area.

In light of this violation, four CCOs contacted Payne outside of his transitional housing.

Payne was on his cell phone, and he told the CCOs that he was texting with one of his online

girlfriends. Payne also informed the CCOs that he had eight girlfriends.

One of the CCOs confiscated the cell phone, which had a camera. A search of Payne’s

phone revealed texts, emails, and social media conversations between Payne and several

different women who appeared to be adults. Many of these conversations were sexually explicit.

In one conversation, Payne stated, “Well, to be honest, I wish I had anybody. I want to

have sex with somebody so badly. I wouldn’t care who they were as long as they were female,

that is.” 7 Report of Proceedings (RP) at 840. In conversations with one of the women, Payne

requested that she send him photographs of herself at the ages 3, 5, 7. 9, 11, 13, and 15.

3 No. 56894-2-II

Payne’s CCO contacted one of the women with whom Payne had been communicating to

determine what her relationship with Payne was and if she had any minor children. The CCO

determined that this woman had a daughter and that Payne never told her that he was a registered

sex offender.

The CCOs also found photographs on Payne’s phone, on a social media account, and a

website account. The images on the phone included sexually explicit photographs of himself and

other people who all appeared to be adults. But the social media page contained photos of young

girls who appeared to be minors around 11 to 12 years old, some anime2 characters, and girls in

swimwear.

In addition, the CCOs found evidence that Payne was looking at numerous pornographic

websites on his phone. His favored videos on one of his accounts included images of small

females with no pubic hair and small breasts and themes that included “gang bang rapes and

young females tied up,” and “daddy/daughters having sex.” 7 RP at 857. Payne also frequented

websites featuring “hentai,” a form of animated pornography in which the characters “appear to

be younger in age with exaggerated genitalia.” 7 RP at 854.

Payne’s CCO issued a violation report alleging that Payne had violated his community

custody conditions by (1) being in a location where minors congregate, (2) having access to the

internet or web cams or any device used to photograph, (3) possessing or processing sexually

explicit material, (4) failing to notify his CCOs of any romantic relationship, (5) failing to

2 Anime is “a style of animation originating in Japan that is characterized by stark colorful graphics depicting vibrant characters in action-filled plots often with fantastic or futuristic themes.” MERRIAM-WEBSTER ONLINE DICTIONARY, https://www.merriam- webster.com/dictionary/anime (last visited April 26, 2019).

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provide verification of entering and completing an approved sexual deviancy treatment program,

(6) failing to make minimum payments toward his legal financial obligations (LFOs), and (7)

failing to make payments toward the cost of supervision fees. Payne pled guilty to or was found

guilty of all of the alleged violations except for the sex offender treatment violation. Payne was

found not guilty of the treatment violation because he was unable to pay for treatment and was

not willfully noncompliant.

Involuntary Commitment Proceedings

The State subsequently petitioned for involuntary civil commitment of Payne as an SVP

under chapter 71.09 RCW. The matter proceeded to a jury trial.

At the trial, the State presented the evidence summarized above. In addition, clinical

psychologist Amy Phenix, Ph.D. testified for the State and clinical psychologist Brian Abbott,

Ph.D. testified for Payne.

Phenix diagnosed Payne as having pedophilia and antisocial personality disorder. She

testified that pedophilia involves a sexual attraction to prepubescent children and that these

children generally are 13 years old or younger. Phenix stated that some individuals with

pedophilia can also be sexually attracted to adults. And she testified that having antisocial

personality disorder can increase the likelihood that someone attracted to children would act on

their attraction because the individual would not have the ability to understand that their actions

would hurt the child and they would instead focus on meeting their own needs.

Phenix further testified that she had reviewed Payne’s recent community custody

violations and that she had concluded that these acts established an overt act. Phenix emphasized

that although Payne seemed to be carrying on relationships with adult women, he also had

5 No. 56894-2-II

collected “images of very young children that would be arousing to someone with pedophilia.” 9

RP at 1069. She expressed concern about Payne’s interest in anime because it was also focused

on young females and all of his anime pictures involved young girls. Phenix also stated Payne’s

selection of photographs on social media and other sites was concerning not only because they

were something that would lead to a pedophilic interest, but because Payne would have had to

actively seek these materials out.

Phenix also found it concerning that Payne had asked one of the adult females to send

him pictures of herself as a young girl. Phenix opined that this request suggested to her that

Payne “was more aroused to pictures of [the woman] when she was younger than pictures of her

when she was of actual age.” 9 RP at 1071.

Phenix testified that when a pedophile was being closely monitored, it was not unusual

for that individual to turn to photographs for sexual arousal and that Payne’s images of young

girls and the anime would “reinforce his abnormal sexual arousal.” 9 RP at 1093. She stated

that Payne’s behavior was concerning because his violations established that he was “living a

very sexualized life,” he had a “sexual preoccupation,” and he “wasn’t controlling himself at

all.” 9 RP at 1092-93.

Payne’s own expert witness, Abbott, also testified that it was common for child sex

offenders who are in custody “to be found with pictures of children that have been cut out of

magazines, catalogs, that sort of thing.” 11 RP at 1375. Abbott testified that this is an indication

that the person is “still experiencing that sexual drive towards children and feel[s] a need to

express it or ha[s] serious difficulty controlling their sexually deviant impulses.” 11 RP at 1375.

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Abbott admitted that it was a possibility that Payne was using the images of young girls that he

had collected for sexual stimulation.

The trial court instructed the jury that the State had to prove that Payne had committed a

recent overt act. The jury found that Payne was an SVP. Based on the jury’s finding, the trial

court entered an order committing Payne as an SVP.

Payne appeals the trial court’s commitment order.

ANALYSIS

A. LEGAL PRINCIPLES

“When reviewing the sufficiency of the evidence in the context of SVP proceedings, we

apply a similar standard to that used in criminal cases.” In re Det. of Anderson, 185 Wn.2d 79,

90, 368 P.3d 162 (2016). The test for determining sufficiency of the evidence is whether, after

viewing the evidence in the light most favorable to the State, any rational trier of fact could have

found guilt beyond a reasonable doubt. Id. Credibility determinations are made by the trier of

fact and are not subject to review. State v. Cardenas-Flores, 189 Wn.2d 243, 266, 401 P.3d 19

(2017). And circumstantial and direct evidence are equally reliable. Id.

If the State files a petition for commitment under chapter 71.09 RCW while the

individual is living in the community after release from custody, the State must prove beyond a

reasonable doubt that the person committed a recent overt act. RCW 71.09.060(1). A recent

overt act is “any act, threat, or combination thereof 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 or

behaviors.” RCW 71.09.020(13).

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B. SUFFICIENCY OF EVIDENCE

To determine whether the State produced sufficient evidence to meet its burden of

proving an overt act, we must answer two questions:

[F]irst, an inquiry must be made into the factual circumstances of the individual’s history and mental condition; second, a legal inquiry must be made as to whether an objective person knowing the factual circumstances of the individual’s history and mental condition would have a reasonable apprehension that the individual’s act would cause harm of a sexually violent nature.

Anderson, 185 Wn.2d at 91 (quoting In re Det. of Marshall, 156 Wn.2d 150, 158, 125 P.3d 111

(2005)).

1. Factual Inquiry

Regarding Payne’s history, the State produced evidence that Payne had a significant

history of sexual offenses against children 12 years old or younger. Payne committed five

separate offenses over a period of more than 20 years despite periodic incarcerations for those

acts.

Regarding Payne’s mental condition, the State presented evidence that Payne suffered

from pedophilia and antisocial personality disorder. And Phenix testified that having antisocial

personality disorder can increase the likelihood that someone attracted to children will act on

their attraction because the individual would not have the ability to understand that it would hurt

the child and would instead focus on meeting their own needs.

The State also presented evidence that within months of his release from total

confinement, Payne was violating several community custody conditions. Specifically, Payne

was engaging in relationships with women without advising his CCO, accessing photographs and

websites containing sexually explicit images and viewing and storing images of minors, and

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entering a prohibited location where children were known to congregate. At the same time, he

was expressing to at least one of the women he was communicating with that he wanted sex so

badly that he “wouldn’t care who they were as long as they were female.” 7 RP at 840.

In addition, the State presented evidence that it was not unusual for a pedophile who was

being closely monitored to collect images for purposes of sexual arousal and that Payne’s images

of young girls and the anime would “reinforce his abnormal sexual arousal.” 9 RP at 1093. And

Phenix testified that Payne’s behaviors were concerning because they demonstrated that Payne

was “living a very sexualized life,” that he had a “sexual preoccupation,” and that “he wasn’t

controlling himself at all.” 9 at RP 1092-93. Abbott also testified that a pedophile’s possession

of images of child can be an indication that the person is “still experiencing that sexual drive

towards children and feel[s] a need to express it or ha[s] serious difficulty controlling their

sexually deviant impulses.” 11 RP at 1375.

2. Legal Inquiry

In conducting the legal inquiry, we “ ‘determine[ ] whether an objective person knowing

[the] factual circumstances would have a reasonable apprehension of harm of a sexually violent

nature resulting from the act in question.’ ” Anderson, 185 Wn.2d at 92 (quoting State v.

McNutt, 124 Wn. App. 344, 350, 101 P.3d 422 (2004)). “This inquiry depends on the specific

behavior alleged to constitute a recent overt act, considered in light of the history and mental

condition of the alleged SVP.” Anderson, 185 Wn.2d at 92.

Payne’s history reveals a long history of sexual offenses against children. The State

introduced evidence that since his release from confinement Payne had knowingly failed to

comply with community custody conditions that were intended to prevent him from being

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exposed to sexually arousing circumstances and to prevent him from having contact with

children. And not only did the evidence about Payne’s mental conditions suggest that he would

have trouble controlling his harmful behaviors, Payne’s violations demonstrated that within

months of his release from total confinement he in fact was failing to control himself in ways

that created a risk of sexual arousal based on images of children. Taking this evidence in the

light most favorable to the State, an objective person could have a reasonable apprehension that

Payne would cause sexually violent harm if he remained in the community.

Payne argues that the State failed to prove a recent overt act because his actions did not

resemble his prior offenses. He contends that the acts relied on involved exchanges with adult

females and a brief entry into the Tacoma Mall to use the restroom near a child’s play area and

that these acts did not resemble any of his prior offenses against minors. But this argument

ignores the fact that Payne was found with images of children and sexual images of real or

animated individuals with child-like appearances and the fact that Payne was seeking out

childhood images of at least one of the adult women he was communicating with.

All of these facts coupled with Payne’s mental health conditions and lack of treatment

would allow an objective person to conclude that Payne still was sexually aroused by children

and that he was not sufficiently in control of his behavior and was at risk of causing sexually

violent harm again if he remained in the community. As a result, there is sufficient evidence that

a number of Payne’s actions fell within the definition of a recent overt act.

Accordingly, we conclude that the State presented sufficient evidence to prove beyond a

reasonable doubt that Payne had committed a recent overt act.

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CONCLUSION

We affirm the trial court’s commitment order.

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 in accordance with RCW

2.06.040, it is so ordered.

MAXA, P.J.

We concur:

LEE, J.

PRICE, J.