State v. J.S.

855 P.2d 280, 70 Wash. App. 659, 1993 Wash. App. LEXIS 306
CourtCourt of Appeals of Washington
DecidedJune 21, 1993
DocketNo. 31209-0-I
StatusPublished
Cited by12 cases

This text of 855 P.2d 280 (State v. J.S.) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. J.S., 855 P.2d 280, 70 Wash. App. 659, 1993 Wash. App. LEXIS 306 (Wash. Ct. App. 1993).

Opinion

Per Curiam.

J.S. seeks accelerated review pursuant to RAP 18.13 of the manifest injustice disposition imposed pursuant to his conviction for one count of first degree child molestation. A commissioner referred the motion to a 3-judge panel for review. We affirm the disposition.

I

On April 4, 1991, J.S. entered a guilty plea to one count of first degree child molestation against his 4-year-old stepsister B., during the period of January 1 and March 31, 1990. The disposition hearing took place on July 30, 1992.1 The standard range was 8 to 12 weeks' commitment.

Probation counselor Tim Bernhardt requested a manifest injustice disposition of 104 weeks, relying upon three aggravating factors: the victim was particularly vulnerable due to age; after a year of voluntary counseling, J.S. was in denial; and, finally, J.S. was not cooperative with the probation department because he followed his attorney's advice not to discuss the incidents with Bernhardt without counsel being present.

Regarding the denial factor, in November 1990, J.S. voluntarily entered into counseling with Dr. Stephen Cummings, with whom he remained in counseling until the disposition hearing. After approximately 6 months of treatment with Cummings, J.S. denied sexually assaulting B. J.S. explained that he admitted guilt because his father and stepmother coerced him to do so and he pleaded guilty only to stop their verbal and emotional abuse.

Bernhardt's recommendation rested primarily upon the recommendation of Dr. Rawlings, a clinical psychologist who specializes in assessment and treatment of sex offenders. Rawlings testified at the disposition, explaining that he evaluated J.S. in the fall of 1990.

[662]*662Rawlings initially recommended 9 to 12 months of residential treatment followed by IV2 to 2 years of outpatient treatment. Based upon J.S.' current denial, however, Rawlings recommended commitment to the Department of Juvenile Rehabilitation (DJR) for IV2 to 2 years. Rawlings testified that it is not possible for a person to make progress in sexual offender treatment if that person denies having a problem, because the first step in treatment requires taking responsibility for the sexually inappropriate behavior.

Rawlings testified that J.S.' progress in the last year, in areas such as improved behavior at school, academic performance, reduction of lying and stealing, did not have an impact on his recommendation. He testified although these improvements were desirable, they failed to address the issue of sexual misconduct. Rawlings testified that short of J.S.' taking responsibility for assaulting B., Rawlings' recommendation would not change.

The defense strongly opposed the manifest injustice recommendation. Although Dr. Cummings did not testify, counsel submitted a written report by Cummings. Cummings wrote that when J.S. denied assaulting B., Cummings requested that he submit to a polygraph test. Because the test results were inconclusive, and because the circumstances of the crime prevented Cummings from being able to determine whether J.S. sexually assaulted B., the focus of therapy evolved to other issues, such as familial conflict, self-esteem, issues of sexuality, and J.S.' concern that he may be homosexual.

Cummings stated that J.S. has made progress in therapy. For the first time in his life, J.S. has some fiúends, is no longer picked on at school, his grades have consistently improved and he has begun to psychologically mature. The 20 months of therapy resulted in J.S. gaining insight and information into sexuality and how a sexual assault victim would be injured by the assault, as well as the consequences of reoffending.

Assuming that J.S. did sexually assault B., Cummings stated "I can assure the Court that he is virtually a zero risk [663]*663to reoffend." In addition, Cummings stated that rather than helping J.S., a 2-year commitment to DJR would be detrimental to the progress J.S. has made. Cummings recommended that J.S. continue to receive community-based treatment with Cummings for at least 1 year or that the court impose a special sexual offender disposition alternative (SSODA).2

Defense counsel introduced a current report card, showing significant progress by J.S. Defense counsel also introduced a 21-page parenting plan evaluation that documented extensive physical, emotional and psychological abuse in the household of J.S.' father and stepmother.

J.S.' mother testified that after J.S. moved in with her, and began counseling with Cummings, his behavior at school and home improved significantly. She testified that she vigilantly monitors J.S.' behavior and has seen no sexual misconduct on his part.

The court imposed a manifest injustice disposition of 104 weeks. The court noted that the disputed question between the parties and their respective experts was the type of treatment needed for J.S. Between the two experts, the court agreed with Dr. Rawlings' determination that J.S.' denial rendered him a danger to society, requiring imposition of an exceptional sentence within which to provide necessary treatment. The court further ruled the victim was particularly vulnerable due to age and that J.S. abused a position of trust.

II

A trial court may impose a disposition outside the standard range if it determines that a disposition within the standard range would "effectuate a manifest injustice". RCW 13.40.160. A "manifest injustice" includes a disposition that would "impose a serious, and clear danger to society in light of the purposes of this chapter." Former RCW 13.40.020(12). RCW 13.40.230(2) provides:

[664]*664To uphold a disposition outside the standard range, . . . the court of appeals must find (a) that the reasons supplied by the disposition judge are supported by the record which was before the judge and that those reasons clearly and convincingly support the conclusion that a disposition within the range . . . would constitute a manifest injustice, and (b) that the sentence imposed was neither clearly excessive nor clearly too lenient.

In order to withstand appellate review, the standard range and the juvenile before the court must present, beyond a reasonable doubt, a clear danger to society. State v. Rhodes, 92 Wn.2d 755, 760, 600 P.2d 1264 (1979); RCW 13.40.230(2).

Need for Treatment

J.S. challenges the court's determination that in light of his denial, he presents a danger to society and a long-term commitment to DJR was needed to protect the community. First, relying upon State v. Vermillion, 66 Wn. App. 332, 348, 832 P.2d 95 (1992), review denied, 120 Wn.2d 1030 (1993) and State v. Garibay, 67 Wn. App. 773, 927, 841 P.2d 49 (1992), J.S.

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Bluebook (online)
855 P.2d 280, 70 Wash. App. 659, 1993 Wash. App. LEXIS 306, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-js-washctapp-1993.