FILED MARCH 14, 2023 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) No. 38530-2-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) WILLIAM WALTER BOST, ) ) Appellant. )
LAWRENCE-BERREY, A.C.J. — The State charged William Bost with murder in the
first degree. He moved the trial court for acquittal by reason of insanity. After an
evidentiary hearing, the trial court found that Mr. Bost committed the charged act of
murder in the first degree, but acquitted him by reason of insanity. It then entered three
findings, which taken together resulted in the court ordering Mr. Bost to be detained in a
state mental hospital.
On appeal, Mr. Bost challenges the sufficiency of the evidence to support each of
the three findings. Viewing the evidence in the light most favorable to the State, as we
must, we affirm the first two findings. There probably is sufficient evidence to affirm the
third, but for the reasons stated below, we vacate the third finding and remand for a
hearing on that issue. No. 38530-2-III State v. Bost
FACTS
Just after midnight on January 6, 2018, William Bost slowly drove his car into the
back of a parked police cruiser with its emergency lights on that was blocking the road.
The cruiser belonged to Spokane County Sherriff’s Deputy Travis West, who had
completed a driving under the influence arrest and was awaiting a tow truck. The deputy
noticed that Mr. Bost’s car did not have its headlights on and the windows were fogged
up. The deputy approached the sedan with his gun drawn and noticed Mr. Bost in the
driver’s seat, holding a small dog.
Deputy West called for backup. Once Deputy Mitchell Othmer arrived, Deputy
West approached the car and noticed Mr. Bost wearing only underwear and some sort of
wrap on his foot. Mr. Bost was holding the dog in his lap and rambling incoherently
while rocking back and forth. The deputies could only make out short statements through
Mr. Bost’s crying and screaming; one of these statements was that Mr. Bost’s wife was
dead and that his dog, Isabelle, “Izzy,” did not mean to kill her. They thought Mr. Bost
was having some kind of mental crisis and called for an ambulance. He was taken to the
local hospital where he was evaluated for mental health issues.
In the meantime, detectives responded to Mr. Bost’s home and found his wife,
Jade Bost, dead and lying face down in a pool of blood on the kitchen floor. She had
2 No. 38530-2-III State v. Bost
been stabbed at least four to five times in the upper back and twice on the left the side of
her head. She also had slicing cuts on her fingers and visible blunt force injuries to her
mouth, nose, and chin. Inside the home, detectives found two knives used in the attack
and eight firearms that Mr. Bost was not legally allowed to possess because of a 1989
first degree robbery conviction. The detectives also found a half consumed two-quart
bottle of vodka on the kitchen counter above Ms. Bost’s body.
At the hospital, Mr. Bost was evaluated for mental health issues, and a computed
tomography (CT) scan was taken. His blood alcohol concentration was 0.12
approximately two hours after he struck the police cruiser. While at the hospital, Spokane
Police Detective Randy Lesser read Mr. Bost his Miranda1 rights. Mr. Bost responded,
indicating that he did not understand why he was being read his rights if the officer whose
car he struck was not hurt. Detective Lesser explained that reading rights was appropriate
when he wanted to ask a person about a crime they might have committed. Mr. Bost
indicated that he understood, and Detective Lesser read Mr. Bost his Miranda rights
again. At that point, Mr. Bost requested an attorney.
Detective Lesser acknowledged Mr. Bost’s request but remained in the room to
prevent any potential violence against the doctors and nurses coming and going from the
1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
3 No. 38530-2-III State v. Bost
room. He overheard Mr. Bost tell the treating physician he suffered from bipolar disorder
and depression, he took antipsychotic medications, he drank every day and used
marijuana, he had auditory and visual hallucinations, he had no thoughts of wanting to
hurt others, and he did not know if he lived alone.
Procedure
The State charged Mr. Bost with one count of murder in the first degree and eight
counts of unlawful possession of a firearm. Mr. Bost was later transferred from the local
hospital to Spokane County Jail, then taken to Eastern State Hospital (ESH) for a
competency evaluation.
a. ESH competency evaluation
At ESH, Dr. W. Timm Frederickson examined Mr. Bost and diagnosed him with
asymptomatic bipolar disorder (due to medication) and polysubstance abuse (alcohol,
methamphetamine). Dr. Frederickson’s initial impression was “[o]verall, [Mr. Bost’s]
insight, judgment, and impulse control are reduced at this point because of ongoing
chronic mental illness and alcohol use disorder while he faces serious legal charges.”
Clerk’s Papers (CP) at 22-23. Dr. Frederickson noted that preadmission paperwork
indicated Mr. Bost was not aggressive at the jail and seemed stable. Dr. Frederickson
opined that Mr. Bost was competent to proceed with the case and that an evaluation for
4 No. 38530-2-III State v. Bost
criminal responsibility should be considered. He noted that Mr. Bost had not taken his
prescribed medication on the night of the murder but opined that as long as he took
medications as prescribed, he would not require evaluation by a designated crisis
responder.
Later, at the request of defense counsel, the trial court appointed an independent
expert, Dr. Richard Adler, to examine Mr. Bost and to provide an opinion whether he was
insane at the time he killed his wife. At the State’s request, the trial court appointed Dr.
Nathan Henry, a Department of Social and Health Services expert, to examine Mr. Bost
and to provide a separate opinion on the issue of insanity.
b. Motion for acquittal by reason of insanity
Once the experts had completed their examinations and reports, Mr. Bost moved
the trial court for a judgment of acquittal by reason of insanity. The motion, the briefing,
and the exhibits focused solely on the question of whether Mr. Bost, because of mental
disease or defect, was able to perceive the nature and quality of his acts at the time he
killed his wife. Similarly, the State’s response, focused only on those issues. Neither
submission discussed whether Mr. Bost might be a substantial danger to others if
released; whether, if released, Mr. Bost presented a substantial likelihood of committing
criminal acts jeopardizing public safety; or whether it was in Mr. Bost’s and other’s best
5 No. 38530-2-III State v. Bost
interest that he be placed in treatment less restrictive than detention in a state mental
hospital. See RCW 10.77.040 (questions 3-5).
Prior to the hearing, Mr. Bost pleaded not guilty by reason of insanity to count 1,
murder in the first degree. He pleaded guilty to counts 2 through 9, unlawful possession
of a firearm in the first degree.
c. Evidence presented at hearing to acquit
The trial court held a bench trial on the motion for acquittal. It considered the
testimonies of the parties’ experts, the investigating officers, and Mr. Bost’s brother. In
addition, it admitted numerous exhibits, including Dr. Adler’s and Dr. Henry’s written
reports, medical records, and photographs of the crime scene. Because Mr. Bost
challenges the sufficiency of the evidence, we set forth the evidence in the light most
favorable to the State. To assist the reader’s understanding, we organize it by subject
matter, rather than by witness.2
2 To ensure we set forth the facts in the light most favorable to the State, we have, almost verbatim, taken subsections i-viii from the State’s thorough and accurate discussion of the evidence presented at the acquittal hearing.
6 No. 38530-2-III State v. Bost
i. Substance abuse
Mr. Bost began using alcohol and cannabis as a teenager. By his late teens and
early 20s, he used “‘pretty [much] anything that came through town,’” including PCP
(phencyclidine), hallucinogenic mushrooms, and LSD (lysergic acid diethylamide).
CP at 310. He admitted he was an alcoholic by his mid-20s, and that he abused cocaine.
He claimed he had a 10-year period of sobriety at some unspecified time (possibly
between ages 30 and 40), but by his late 30s he drank alcohol regularly, at some point
drinking between 60 and 90 beers per week until switching to hard alcohol. He began
using methamphetamine in his 40s. He abused benzodiazepines he purchased online to
the point that in approximately 2008, at roughly age 50, he overdosed on “bootleg”
Valium. CP at 302. Also around that time, Mr. Bost reported drinking a minimum of 60
beers—with an alcohol content of 5.9 percent—per week.
Just prior to murdering his wife, at roughly age 60, Mr. Bost was discharged from
Northwest Spine and Pain Medicine because he missed an appointment and violated the
pain contract under which he received hydrocodone by twice testing positive for
methamphetamine. Mr. Bost continued to use cannabis at that time and reported he
thought the methamphetamine in his system must have been in cannabis he obtained from
a friend. However, he also admitted to continued methamphetamine use. In addition, at
7 No. 38530-2-III State v. Bost
that time, Mr. Bost consumed a half gallon of hard alcohol every three days. The night of
the murder, Mr. Bost purchased vodka and the partially consumed bottle was found on the
kitchen counter, near Ms. Bost’s body.
ii. Criminal history
Aside from the recent murder of his wife and the unlawful possession of eight
firearms, Mr. Bost’s criminal history includes convictions for first degree robbery and
attempt to elude in 1989. These offenses were alcohol and cocaine related. The robbery
resulted from Mr. Bost pointing a firearm at the clerk at a Zip Trip to obtain money to
purchase cocaine. Roughly 10 years later, while in his 40s, Mr. Bost was convicted of an
alcohol-related driving offense (his criminal history reflects a negligent driving
conviction in 2002).
iii. Substance use treatment
Mr. Bost received chemical dependency treatment while serving one year in jail
for the 1989 first degree robbery and attempt to elude convictions. Following a charge of
physical control of a vehicle while under the influence, Mr. Bost received inpatient
chemical dependency treatment in 2002 to 2003 at Spokane Addiction Recovery Center
(SPARC), with outpatient follow-up treatment. Mr. Bost believes he also received
chemical dependency treatment after a negligent driving conviction, but it appears that
8 No. 38530-2-III State v. Bost
conviction may be the same as the physical control conviction just referenced, and the
treatment may have been the treatment received at SPARC in 2002 to 2003.
All treatment was ultimately unsuccessful, because in 2008, Mr. Bost reported
drinking six beers per night. Mr. Bost saw a chemical dependency counselor in 2009, but
by 2010 he lost his job due, in part, to his drinking. He was diagnosed with alcohol,
cannabis, and cocaine dependence. Mr. Bost declined formal treatment.
Mr. Bost also saw a psychiatrist six times in 2010 for his alcohol use. The
psychiatrist recommended he attend Alcoholics Anonymous, but Mr. Bost did not do so.
In 2012, Mr. Bost was referred for chemical dependency treatment. There is no evidence
that Mr. Bost ever successfully completed chemical dependency treatment or stopped
abusing multiple substances.
iv. Bipolar disorder diagnosis & treatment
In 1998, Mr. Bost’s doctor prescribed several antidepressants for mood, none of
which had noticeable benefits. Mr. Bost was referred for a specialty mental health
evaluation and started on Seroquel, a mood-stabilizing antipsychotic medication
commonly used to treat bipolar disorder.
Kaiser Permanente records show Dr. David Grubb, a psychiatrist, diagnosed Mr.
Bost with bipolar disorder, unspecified, sometime after first treating him in 2007. This
9 No. 38530-2-III State v. Bost
was not his primary diagnosis at that time. In 2008, Mr. Bost visited his primary care
physician to obtain a refill of Seroquel. His dosage at that time was 200 mg.
In 2010, Mr. Bost saw a family practice provider who listed bipolar disorder as his
primary diagnosis. By that visit, Mr. Bost’s dosage of Seroquel had doubled to 400 mg.
He was only 50 percent medication compliant at that time.
In 2012, Dr. Grubb concurred that bipolar disorder was the primary diagnosis and
noted that the “Seroquel has kept [Mr. Bost] from getting angry or anxious, but has not
been as helpful for the depression.” Ex. D-142. Mr. Bost accepted his diagnosis. Dr.
Grubb completed an Americans with Disabilities form requesting workplace shift
accommodations, explaining that disruption to circadian rhythms “is an integral part of
bipolar disorder” and that Mr. Bost had a “major risk of decompensating if he changes
work shifts.” Ex. D-142. Dr. Grubb also noted that Mr. Bost’s alcohol use “remains
problematic, of which he is well aware.” Ex. D-142.
At some point, Mr. Bost discontinued his psychiatric medications. At the time he
killed his wife, he had not been taking Seroquel or any other psychiatric medication for
about two years. Mr. Bost reported he was having “‘emotional outbursts’” around the
time of the murder. CP at 354.
10 No. 38530-2-III State v. Bost
v. Psychiatric assessments
Numerous psychiatric assessments were conducted following Mr. Bost’s arrest. In
May 2018, as part of his competency evaluation at ESH, Mr. Bost completed the
Minnesota Multiphasic Personality Inventory-2-Restructured Form (MMPI-2-RF).
The evaluator, Dr. W. Timm Frederickson, PhD, observed a possibility that Mr.
Bost was overreporting symptoms but noted this can occur in individuals with genuine,
severe psychopathology. Notably, despite the charges, Mr. Bost self-reported a “below
average level of aggressive behavior.” CP at 25. Dr. Frederickson’s overall impression
from the assessment was that Mr. Bost’s “insight, judgment, and impulse control [were]
reduced . . . because of ongoing chronic mental illness and alcohol use disorder while he
face[d] serious legal charges.” CP at 22-23.
Dr. Adler, the defense expert, administered a Personality Assessment Inventory
(PAI) in 2020. The PAI is a psychological test based on self-reports used to assess
“personality and mental illness while providing insight into an evaluee’s ‘response
style.’” CP at 357. The results reflected elevations on various scales that suggested a
“‘moderate to severe level of psychiatric distress and impairment,’” which, at the time of
the evaluation, included problems with paranoia, psychotic symptoms, and possibly a
tendency for impulsivity. CP at 369. While Mr. Bost’s responses, including that he is
11 No. 38530-2-III State v. Bost
unassertive and struggles to stand up for himself, resulted in no elevation in
aggressiveness, when risk and treatment scales were applied, they showed statistically
relevant elevations in his violence potential index and Dr. Adler noted Mr. Bost’s
“behavior is likely to be reckless and he can be expected to entertain risks that are
potentially dangerous to himself and to those around him.” CP at 405.
Dr. Adler commented that Mr. Bost appeared motivated for treatment, but stated
that the “nature of some of these problems suggests that treatment would be fairly
challenging, with a difficult treatment process and the probability of reversals.” CP at
406. He stated that if “treatment were to be considered” for Mr. Bost, “particular areas of
attention or concern in the early stages of treatment” might include:
He may have initial difficulty in placing trust in a treatment professional as part of his more general problems in close relationships.
He may currently be too disorganized or feel too overwhelmed to be able to participate meaningfully in some forms of treatment.
He is likely to have difficulty with the treatment professional as an authority figure, and he may react to the therapist in a hostile or derogatory manner.
CP at 406.
Dr. Henry, the State’s expert, administered an updated Minnesota Multiphasic
Personality Inventory-3 (MMPI-3) in 2021. The results again indicated inconsistency and
a pattern of overreporting, which, though not necessarily indicative of malingering or
12 No. 38530-2-III State v. Bost
sufficient to invalidate the assessment, suggested the results be cautiously interpreted.
Mr. Bost reported emotional, thought, behavioral, and interpersonal dysfunction. He
endorsed suicidal ideation, antisocial behavior, juvenile conduct problems, substance use
and impulsivity, as well as interpersonal difficulties associated with social avoidance
behaviors. Mr. Bost reported that if sentenced to prison, he would seriously consider
suicide, but that if sentenced to the hospital, he felt there would be hope.
Dr. Henry concluded Mr. Bost did not suffer from bipolar disorder, noting the lack
of prior psychiatric hospitalizations and the lack of manic or hypomanic episodes in his
history. He also explained that Mr. Bost’s history of significant substance abuse
complicated the diagnosis, noting the “effects of the substances Mr. Bost was using could
include symptoms even more severe than what he has reported. For example, it is not
uncommon for individuals to develop severe psychotic symptoms in the context of using
methamphetamine.” CP at 314.
vi. Neurocognitive disorder
Mr. Bost reported multiple past head traumas. During childhood, his brother threw
a rock at his head, and it fractured his skull. Mr. Bost reportedly had neurological
symptoms afterward, including tunnel vision and a feeling that his appendages were large,
swollen, and heavy. These symptoms resolved by age 20.
13 No. 38530-2-III State v. Bost
At some point, possibly in 1970 when he was roughly 12 years old or possibly by
the point he was an adult, he crashed into a butte headfirst while wearing a helmet, broke
his collarbone, and suffered a concussion.
In 2013, five years before he killed his wife, Mr. Bost was struck in the left temple
area during a mugging. This blow fractured the left orbital area of his skull. Mr. Bost
was scheduled for surgery to address this injury but no records indicate the surgery
occurred. Shortly after this injury, Mr. Bost’s brother noticed Mr. Bost changed,
becoming reclusive and detached.
Due to this history of head trauma and his bizarre behavior the night he killed his
wife, Mr. Bost underwent a quantitative electroencephalogram (QEEG) in August 2020 at
Dr. Adler’s request. Similar to an EKG (electrocardiogram), a QEEG measures the
brain’s electrical activity and digitally quantifies the results. It provides information
about underlying brain function and whether damage has occurred. Though at the time
the QEEG was administered Mr. Bost had been taking prescribed psychiatric medication
on a regular basis and had not been consuming alcohol or illicit substances for a period of
two years, the results of the test were “markedly abnormal.” CP at 361. They showed
impairment in the limbic lobe, the frontal lobes, and in the connections between them.
14 No. 38530-2-III State v. Bost
As a general matter, the limbic lobe is the seat of primal impulses, emotions,
and urges. The frontal lobes control “the ability for judgment, discernment, problem
solving, planning, [and] weighing options,” and “puts the brakes on” the impulses that
originate in the limbic lobe. Rep. of Proc. (Mar. 18, Mar. 30-Sept. 1, 2021) (RP)
at 133-34, 147. The connectivity between these two regions of the brain are, therefore,
extremely important to an individual’s “control over themselves, their ability
to discern choices, their ability to control impulses, [and] their ability to understand and
integrate emotions . . . .” RP at 147.
Mr. Bost’s neurological testing showed abnormalities in the frontal lobe,
specifically in Brodmann Areas 9, 24, 25, and 32. Brodmann Area 9 is “extremely
important because it is part of . . . the dorsal lateral prefrontal cortex.” RP at 134. The
dorsal lateral prefrontal cortex is the latest part of the human brain to fully develop.
Lack of full maturation in this region of the brain explains why otherwise nice, young
individuals “do un-Godly stupid things that nobody, including themselves, can make
sense of,” and was the reason the United States Supreme Court found the death penalty
for juveniles unconstitutional. RP at 134-35.
Brodmann Areas 24, 25, and 32 are located in close proximity to each other and
are all critical to frontal lobe function. Brodmann Area 25 is associated with chronic
15 No. 38530-2-III State v. Bost
treatment-resistant depression. Brodmann Area 32 is particularly important because it is
considered the seat of free will, integral to choosing, volition, and the ability to self-
direct.
After reviewing these records, Dr. Adler diagnosed Mr. Bost with traumatic brain
injury with a severity at the high end of mild. He concluded that Mr. Bost’s brain was not
functioning well and that in terms of executive function, mirror neurons (which allow
someone to understand what another person is feeling and thinking), and mood, he was
“doing as bad as you can do.” RP at 146. Notably, this poor brain function was not
measured at the time Mr. Bost killed his wife. This reflected Mr. Bost’s brain function
years after the murder, following a sustained period of regularly taking psychiatric
medications and abstinence from alcohol and other substances.
vii. Interpersonal conflict
Mr. Bost’s relationship with his wife was troubled. Though charges were not
filed, records demonstrate that in 2007, Mr. Bost pushed Ms. Bost while he was
intoxicated.
In 2018, in the days leading up to her death, Ms. Bost began keeping a diary to
document their difficult relationship. She wrote: “I have decided once again to keep a
journal. I hope to defuse some of my anxiety and to record for myself what I think and
16 No. 38530-2-III State v. Bost
feel.” Ex. P-34. On January 1, five days before her death, she wrote: “We have argued
for 2 weeks it seems. [Will] hates me, calls me cunt and does not see how much I love
him. I don’t think I can take much more. I’m depressed and in a constant state of worry
and anxiety. . . . Right now [Will] sleeps most of the time.” Ex. P-34.
On January 2, Ms. Bost wrote:
This has been a truly horrifying day. I get Will up a little after noon. He was telling me about a dream and then it all went haywire. He said horrible mean things to me. He did take me to Walmart but after we fought. I can’t take this abuse. He wants someone else not me.
Ex. P-34.
On January 3, just two days before her death, Ms. Bost wrote her final entry:
“Things were better today. Will said he was sorry, but didn’t say sorry for what. He
seemed strange all day almost out of it. Some things I just don’t get.” Ex. P-34.
viii. Dr. Adler’s conclusions
Dr. Adler, the defense expert, concluded Mr. Bost was insane at the time he
murdered his wife due to the co-occurrence of bipolar disorder and undiagnosed untreated
neurocognitive disorder associated with traumatic brain injury. Dr. Adler concluded that
not only was Mr. Bost “markedly psychiatrically afflicted before the tragic events,” but
that at the time of trial, under the best of circumstances including regularly taking
medication and not using substances, Mr. Bost was still “extremely neuropsychiatrically
17 No. 38530-2-III State v. Bost
afflicted.” RP at 177 (emphasis added). He found Mr. Bost’s bipolar disorder was only
in “partial remission due to the treatment he [was] receiving.” CP at 370 (emphasis
added).
d. Trial court ruling
After considering the above, the trial court concluded Mr. Bost suffered from
bipolar disorder with psychotic features and neurocognitive disorder associated with
traumatic brain injury, which affected him to such an extent that “he was unable to
appreciate and perceive the nature and quality of his actions at the time of the offense.”
CP at 591. Accordingly, the court granted Mr. Bost’s motion for acquittal on the basis of
insanity.
As noted previously, neither party anticipated addressing any issue other than Mr.
Bost’s insanity at the time of the motion hearing. Mr. Bost did not request that the court
find he was not dangerous or that he be released on a less restrictive alternative in his
motion for acquittal. The parties did not address these issues at the motion hearing, and
Dr. Adler even admitted he had not been retained to give his opinion about whether Mr.
Bost presented a substantial danger to others.
18 No. 38530-2-III State v. Bost
However, although the parties did not specifically address those issues, the court
determined sufficient evidence had been presented to support the following three
findings:
66. At this time, the Court finds that Mr. Bost is a substantial danger to other persons unless kept under further control by the Court or an institution. 67. At this time, the Court finds that the defendant does present a substantial likelihood of committing felonious criminal acts jeopardizing public safety or security unless kept under further control by the Court or other persons or institutions. 4.[3] At this time, it is not in the best interests of the defendant and others that the defendant be placed in treatment that is less restrictive than detention in a state mental hospital.
CP at 591-92.
Consequently, the court committed Mr. Bost to ESH “until such time as an
appropriate less restrictive placement is available.” CP at 591.
Mr. Bost timely appealed.
ANALYSIS
Mr. Bost contends the State presented insufficient evidence to support the three
findings quoted above. He asks that he be immediately released from ESH.
3 Conclusion of law 4 is actually a finding of fact. Mr. Bost correctly recognizes this by assigning error to it, in addition to the other two quoted findings.
19 No. 38530-2-III State v. Bost
Standard of review
We review challenged findings of fact from a trial court’s decision on a motion for
acquittal by reason of insanity for substantial evidence. State v. Monaghan, 166 Wn.
App. 521, 530, 270 P.3d 616 (2012). Substantial evidence exists if the record contains
enough evidence to persuade a rational person of the truth of the declared premise. Id.
When substantial evidence supports the trial court’s challenged facts, those facts are
binding on appeal. Id.
In claiming insufficient evidence, the defendant necessarily admits the truth of the
State’s evidence and all reasonable inferences that can be drawn from it. State v. Salinas,
119 Wn.2d 192, 201, 829 P.2d 1068 (1992); State v. Drum, 168 Wn.2d 23, 35, 225 P.3d
237 (2010). These inferences “must be drawn in favor of the State and interpreted most
strongly against the defendant.” Salinas, 119 Wn.2d at 201. Further, we defer to the trier
of fact for purposes of resolving conflicting testimony and evaluating the persuasiveness
of the evidence. State v. Homan, 181 Wn.2d 102, 106, 330 P.3d 182 (2014).
Motions for acquittal by reason of insanity
By filing a motion for acquittal by reason of insanity, the defendant admits to
having committed the act in question and asks the court to make necessary findings to
acquit them on the grounds of a mental disease or defect excluding responsibility. State v.
20 No. 38530-2-III State v. Bost
Jones, 84 Wn.2d 823, 832-33, 529 P.2d 1040 (1974). If the provision is invoked, the
defendant waives the right to have a jury decide whether they committed the act as
charged. Id.
At the hearing on this motion, the defendant has the burden of proving by a
preponderance of the evidence that he or she was insane at the time of the charged crime.
RCW 10.77.080. If the court finds that the defendant should be acquitted by reason of
insanity, “it shall enter specific findings in substantially the same form as set forth in
RCW 10.77.040.” Id. Here, the trial court acquitted Mr. Bost by finding he was insane at
the time he murdered his wife. We now turn to RCW 10.77.040 to determine what
specific findings the trial court was required to enter.
RCW 10.77.040 sets forth five specific questions a jury must answer by special
verdict when a defendant asserts he or she is not guilty by reason of insanity. The first
two questions concern whether the defendant committed the charged act and whether the
defendant was insane at the time of the act. The first question was answered prior to the
hearing because by statute, the defendant is required to admit that they committed the
charged act. The second question was answered in the affirmative by the trial court and is
not appealed by the State.
21 No. 38530-2-III State v. Bost
The three remaining questions are: (1) Is the defendant a substantial danger to
other persons unless kept under further control by the court or other persons or
institutions? (2) Does the defendant present a substantial likelihood of committing
criminal acts jeopardizing public safety or security unless kept under further control by
the court or other persons or institutions? (3) Is it in the best interests of the defendant
and others that the defendant be placed in treatment that is less restrictive than detention
in a state mental hospital? See RCW 10.77.040.
Here, the trial court answered these three questions affirmatively. We address
these findings to determine whether they are supported by sufficient evidence.
1. If released, Mr. Bost poses a substantial danger to others and a substantial likelihood of committing criminal acts jeopardizing public safety
Mr. Bost has a long history of alcohol and drug abuse and treatment failures, bi-
polar disorder with psychotic features, and a neurocognitive disorder associated with one
or more traumatic brain injuries. This history has contributed to past criminal acts—first
degree robbery, two alcohol and/or drug related driving convictions and, most notably,
the murder of his wife.
Although there is no presumption of continuing dangerousness, evidence that his
condition has not significantly improved is highly probative of future dangerousness.
22 No. 38530-2-III State v. Bost
When a defendant has been acquitted of murder, thus proving his dangerousness at the
time,
unless there is clear, ample, and conclusive evidence that his mental condition has undergone a radical change toward a normal condition since that time, the trial judge should not hesitate to find him “manifestly dangerous” within the meaning of the statute—unless, of course, his physical condition, by reason of sickness, disease, or otherwise, should have rendered him absolutely incapable of doing violence.
State v. Snell, 46 Wash. 327, 333, 89 P. 931 (1907).4
Here, the conditions that gave rise to Mr. Bost killing his wife have not changed.
There is no evidence he has successfully treated his alcohol and drug addictions. His bi-
polar disorder with psychotic features and his neurocognitive disorders are unchanged.
As his own expert testified, not only was Mr. Bost markedly psychiatrically afflicted
4 Mr. Bost suggests that we should require the State to prove that he had committed a recent overt act in order to sustain the first two challenged findings. In making this argument, he relies on a standard applicable to involuntary commitment hearings. See In re Harris, 98 Wn.2d 276, 284, 654 P.2d 109 (1982) (“likelihood of serious harm,” as defined by former RCW 71.05.020(3) (1979), requires a showing of a substantial risk of physical harm as evidenced by a “recent overt act”). We disagree with his argument. An involuntary commitment hearing occurs promptly after a person is detained. Thus, a requirement of a recent overt act makes sense. On the other hand, the trial of whether a person should be acquitted of a criminal act on the grounds of insanity often occurs long after the person is arrested and placed in a controlled setting—a setting where the person receives prescribed medications and cannot obtain alcohol and illegal drugs. Requiring the State, in this context, to prove a “recent overt act” would too often result in
23 No. 38530-2-III State v. Bost
when he murdered his wife, but “[h]e is extremely neuropsychiatrically afflicted right
now under the best of circumstances on medication regularly, not taking any substances,
etcetera.” RP at 177 (emphasis added). Moreover, one or more of these conditions led to
past criminal acts—first degree robbery, two driving while intoxicated charges (although
reduced down), and first degree murder. We conclude there is substantial evidence to
support the first two challenged findings.
2. Expert testimony should be taken to determine whether treatment less restrictive than a state mental hospital is appropriate
Neither expert testified whether treatment less restrictive than a state mental
hospital is in the best interests of Mr. Bost and others. In contrast, there was clear
evidence that Mr. Bost’s mental conditions or defects that caused him to murder his wife
had not abated.
As noted above, defense expert Dr. Adler testified that Mr. Bost “is extremely
neuropsychiatrically afflicted right now under the best of circumstances on medication
regularly, not taking any substances, etcetera.” RP at 177. In addition, based on Mr.
Bost’s PAI results, Dr. Adler testified that the “nature of some of these problems suggests
that treatment would be fairly challenging, with a difficult treatment process and the
the release of persons—who have admitted to committing the charged act and have been found insane by the court—without appropriate safeguards.
24 No. 38530-2-111 State v. Bost
probability of reversals." CP at 406. He opined that Mr. Bost may have trust issues with
a therapist, may have difficulty participating meaningfully in treatment, and may react to
a therapist in a hostile or derogatory manner. Given the generous standard of review that
we must apply, we probably could sustain the trial court's third finding. But we choose
not to.
Rather, recognizing that a clear expert opinion on this challenged finding would
benefit Mr. Bost and the public, we remand to the trial court for an evidentiary hearing on
this issue and for the trial court to enter supplemental findings of fact and conclusions of
law.
Affirmed in part; remanded.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
Lawrence-Berrey, A.C
WE CONCUR:
~4 ,.::r. Fearing, J. Staab, J.