In re Austin
| Decision Date | 04 April 2023 |
| Docket Number | 38343-1-III |
| Parties | In the Matter of the Detention of BRUCE AUSTIN,Appellant. |
| Court | Washington Court of Appeals |
UNPUBLISHED OPINION
In 2011, Bruce Austin was convicted of first degree possession of depictions of minors engaged in sexually explicit conduct. In 2019, when Austin was about to be released from prison the State filed a petition to have him civilly committed as a sexually violent predator (SVP). To meet its burden, the State had to prove that Austin had been "convicted of or charged with a crime of sexual violence." Former RCW 71.09.020(18) (2019).[1] The State argued that two of Austin's prior Alaska convictions from 1981 were legally and factually comparable to Washington offenses that qualified as "sexually violent offense[s]" under former RCW 71.09.020(17) (2019).
Austin argued that neither of his Alaska convictions were comparable to Washington's sexually violent offenses because both of the Alaska offenses encompassed more conduct than proscribed by the comparable Washington offenses. Specifically, he pointed out that the Washington offenses included an element of nonmarriage between the defendant and victim and neither of his Alaska convictions pleaded or proved an element of nonmarriage.
Additionally Austin argued that his prior Alaska conviction for sexual abuse of a minor was not comparable to Washington's offense of indecent liberties against a child under age 14 because the Washington offense requires proof of sexual gratification and his Alaska conviction neither pleaded nor proved this element.
The trial court found that the offenses were comparable because sexual gratification was implied under the Alaska statute and because non-marriage between Austin and his victim could be implied in both Alaska offenses given that neither Alaska nor Washington recognized same-sex marriages in 1981.
We agree that the trial court properly held that a non-marriage element could be properly implied in both Alaska offenses since it was legally impossible for the defendant to be married to his male victim at the time of his conviction. Since nonmarriage is the only legal difference between Austin's Alaska conviction for sexual assault in the first degree and Washington's qualifying offense of first degree statutory rape, the State has met its burden of proving that Austin had been previously convicted of or charged with a sexually violent offense. We therefore decline to consider whether the trial court properly implied an element of sexual gratification into the Alaska offense of sexual abuse of a minor.
In 1981, Bruce Austin entered a no contest plea[2] to three Alaska offenses. Two of the three convictions are relevant here. One conviction was for sexual abuse of a minor under former AS 11.41.440(a)(2) (1980) (Count II) and another was for first degree sexual assault under former AS 11.41.410(a)(3) (1980) (Count III).
Austin's no contest plea to the indictment, Count II, admitted:
Clerk's Papers (CP) at 502. Austin's no contest plea to the indictment, Count III, admitted:
Austin later moved to Cheney, and in 2010, he befriended at least five neighborhood children between the ages of eight and thirteen. Austin invited the children over to watch movies, took them to church, and went camping with them. Shortly thereafter, Austin was charged with rape of a child in the first degree, child molestation in the first degree, and two counts of possession of depictions of minor engaged in sexually explicit conduct, all stemming from his contact with two children. Austin was acquitted of the rape and molestation charges, but was convicted of first degree possession of depictions of minor engaged in sexually explicit conduct.
In 2019, when Austin was about to be released from prison, the State petitioned to have him committed as an SVP under former RCW 71.09.020(18). The State's petition alleged that Austin's 1981 Alaska convictions for sexual assault of a minor and sexual assault in the first degree (four counts) constituted sexually violent offenses as defined in former RCW 71.09.020(17). Upon the State's motion, the trial court determined as a matter of law that both convictions qualified as sexually violent offenses and qualified as predicate offenses.
Following a bench trial, the court found that Austin was a sexually violent predator.[3] The court also concluded that the State proved beyond a reasonable doubt that Austin's Alaska convictions were comparable to sexually violent offenses listed in former RCW 71.09.020(17)(a)-(b). The court entered written findings and conclusions of law. The court also entered an order of commitment.
Austin appeals from the order of commitment. He raises two issues of statutory interpretation but his primary argument is that the trial court erred in finding his Alaska convictions were legally and factually comparable to predicate offenses considered sexually violent offenses under former RCW 71.09.020(17). We disagree and conclude that the trial court did not err in concluding that Austin's Alaska conviction for sexual assault in the first degree was legally and factually comparable to Washington's offense of statutory rape in the first degree under former RCW 9A.44.070. We therefore affirm.
The first issue we address is the test to be applied when comparing out-of-state convictions to Washington offenses within chapter 71.09 RCW. Austin argues that the wording used in former RCW 71.09.020(17) requires a more limited comparability test than the two-prong test applied for sentencing purposes. Austin contends that the statute allows only for a legal comparability of out-of-state convictions to predicate offenses identified in former RCW 71.09.020(17), and the court here erred by considering whether the Alaska offenses were factually comparable. The State contends that Washington has a long history of using the two-prong test for out-of-state conviction comparability under the sentencing reform act of 1981, ch. 9.94A RCW, under ch. 71.09 RCW, and that Austin's reading of the statute is contrary to the rules of statutory construction. We agree with the State that the correct test is a two-prong legal and factual comparability test.
In Washington, a two-part test is traditionally used to determine comparability of out-of-state convictions for purposes of sentencing under the sentencing reform act. E.g., State v. Morley, 134 Wn.2d 588 605-06, 952 P.2d 167 (1998); In re Pers. Restraint of Lavery, 154 Wn.2d 249, 255, 111 P.3d 837 (2005); State v. Olsen, 180 Wn.2d 468, 476, 325 P.3d 187 (2014). The two-part test consists of a legal and a factual inquiry. First, the court looks to the elements of the crime and determines whether the elements of the out-of-state criminal statute are "substantially similar" or narrower than the comparable Washington statute. Lavery, 154 Wn.2d at 255. If the elements of the crimes are "substantially similar," then the analysis stops there. Id. If, on the other hand, the elements of the out-of-state conviction are broader than the Washington statute, the court proceeds to the second part of the analysis, factual comparability. Id.
The factual comparability component allows courts to "look at the defendant's conduct, as evidenced by the indictment or information, to determine if the conduct itself would have violated a comparable Washington statute." Id. (citing Morley, 134 Wn.2d at 606). However, the "elements of the charged crime must remain the cornerstone of the comparison." Id. The court may consider "only facts that were admitted, stipulated to, or proved beyond a reasonable doubt" in conducting its factual inquiry. Olsen, 180 Wn.2d at 478.
At an SVP determination trial, there is one question for the fact finder: "Has the State proved, beyond a reasonable doubt, that the respondent is an SVP?" In re Detention of Post, 170 Wn.2d 302, 309, 241 P.3d 1234 (2010). In order to answer this question in the affirmative, the fact-finder must find three elements: "(1) that the respondent has been convicted of or charged with a crime of sexual violence, (2) that the respondent suffers from a mental abnormality or personality disorder, and (3) that such abnormality or disorder makes the person likely to engage in predatory acts of sexual violence if not confined in a secure facility." Id. at 309-10 (citing former RCW 71.09.020(18)) (internal quotation marks omitted).
In this case, Austin disputes that the State has proved that he has been previously convicted of a crime of sexual violence.
"Sexually violent offense" means an act committed on, before, or after July 1, 1990, that is: (a) An act defined in Title 9A RCW as rape in the first degree, rape in the second degree by forcible compulsion, rape of a child in the first or second degree,...
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