In re Belcher

• Decision Date: 04 October 2016
• Docket Number: No. 47328-3-II,47328-3-II
• Citation: 196 Wash.App. 592,385 P.3d 174
• Court: Washington Court of Appeals
• Parties: In the MATTER OF the DETENTION OF: Troy BELCHER, Petitioner.

196 Wash.App. 592

385 P.3d 174

In the MATTER OF the DETENTION OF: Troy BELCHER, Petitioner.

No. 47328-3-II

Court of Appeals of Washington, Division 2.

October 4, 2016

Publication Ordered November 22, 2016

Travis Stearns, Washington Appellate Project, 1511 3rd Ave., Ste. 701, Seattle, WA, 98101-3647, for Appellant.

Jeremy Scott Bartels, Washington State Attorney General, Sarah Sappington, Office of the Atty. General, Brooke Elizabeth Burbank, Assistant Attorney General, 800 5th Ave., Ste. 2000, Seattle, WA, 98104-3188, for Respondent.

Melnick, J.¶1 Troy Belcher appeals the trial court's denial of his petition for unconditional release and order for continued involuntary civil commitment as a sexually violent predator (SVP) under chapter 71.09 RCW. Belcher alleges his commitment violates due process; insufficient evidence existed to prove both that Belcher was likely to commit a sexually violent offense if released and that he suffered from a mental abnormality; and the State's expert lacked the qualifications to testify. We affirm.

FACTS

I. BACKGROUND

¶2 Belcher has two juvenile adjudications finding him guilty of sex offenses committed when he was 13 and 15 years old. He committed the first offense in 1998. He approached a 13-year-old girl, L.C., who was babysitting at a park. He spoke with her, followed her to the children's home, and tried to invite himself inside. L.C. would not let him in, but gave him her phone number in an effort to make him leave. A few minutes later, L.C. answered a knock on the door and Belcher forced his way inside the house. Belcher told L.C. he wanted to have sex with her. She refused and tried to push him away. Belcher raped L.C. Belcher stopped and left the house when one of the children interrupted the assault by knocking on the door. Belcher was subsequently found guilty in juvenile court of rape in the second degree by forcible compulsion. In November 1998, Belcher received a manifest injustice sentence and received a 65-week commitment to the Department of Juvenile Rehabilitation (DJR).

¶3 While still on supervision for his first sex offense, Belcher committed his second sexually violent offense. In April 2000, 13-year-old J.A. encountered Belcher while she walked to a friend's house. Belcher offered to show J.A. a shortcut through the woods and J.A. agreed to follow him. Belcher began to kiss J.A. when they arrived in the woods. He pulled her pants and underwear down to her knees and pushed her to the ground. Belcher then pulled down his pants, straddled her, and warned J.A. that she would not get hurt if she did not scream. J.A. managed to push Belcher off of her and run away. Belcher admitted to police that he pulled down J.A.'s pants and underwear, he "planned on having sex with her," and he "had tried to rape J.A." Clerk's Papers (CP) at 5. Belcher was found guilty in juvenile court of attempted rape in the second degree. In January 2001, Belcher received a manifest injustice sentence and was committed to DJR for 256 weeks. They placed Belcher at the Green Hill School institution.

¶4 In 2004, Belcher, then 19 years old, approached another Green Hill resident and asked about having L.C. killed or put in a coma. The State charged Belcher as an adult with solicitation to commit murder in the first degree and intimidating a witness. Belcher pleaded guilty to intimidating a witness and received a sentence of 27 months of incarceration in prison and 9 to 18 months of community custody.

¶5 In December 2007, while Belcher was still serving his sentence for his 2004 conviction, the State petitioned for Belcher's civil commitment as a SVP. Belcher was transferred to the McNeil Island Special Commitment Center (SCC) pending his trial on the commitment petition. In re Det. of Belcher , noted at 173 Wash.App. 1021, 2013 WL 634536.¶6 Belcher went to trial and the jury returned a verdict finding that the State had proven beyond a reasonable doubt that Belcher was a SVP. The trial court committed him to the SCC. Belcher appealed, and we affirmed. Belcher , 2013 WL 634536.

¶7 On June 29, 2012, the trial court completed its annual review. It ordered Belcher's continued custody as a SVP until further order from the court.

II. UNCONDITIONAL DISCHARGE TRIAL

¶8 In May 2014, Belcher petitioned the trial court for an unconditional discharge trial pursuant to chapter 71.09 RCW. He argued that probable cause existed under RCW 71.09.090 because he made a prima facie showing that he no longer met the definition of a SVP. He asserted in the petition that his qualified expert, Dr. Brian Abbott, assessed Belcher as no longer meeting the commitment criteria as a SVP because of his "positive response to continuing treatment." CP at 82. Belcher included Dr. Abbott's evaluation, Dr. Abbott's declaration, and depositions from four SCC staff members as support for his petition.

¶9 The State filed a show cause petition on whether probable cause existed to prove Belcher's condition had so changed that he no longer met the definition of a SVP, or whether release to a less restrictive alternative would be in Belcher's best interest and conditions could be imposed to protect the community. The State requested that the trial court continue Belcher's civil commitment as a SVP.

¶10 Belcher opposed the State's show cause petition, arguing that the State failed to "establish a prima facie case for continued confinement." CP at 304. The trial court held a show cause hearing and granted Belcher's petition for an unconditional discharge trial.

¶11 Belcher waived his right to a jury trial and the matter proceeded to a bench trial. The following facts are from the trial court's findings of fact.¹ Belcher did not contest the existence of two sexually violent convictions, nor that they constituted sexually violent offenses pursuant to RCW 71.09.020(17).²

¶12 Dr. Brian Judd, a certified sex offender treatment provider in Washington who specializes in the evaluation of sex offenders, gave his opinion about Belcher's current condition. Dr. Judd reviewed over 3,789 pages of documentation regarding Belcher, including behavioral management reports, observation reports, progress notes, medical records, infraction records, and observations of his participation in treatment. He also interviewed Belcher twice. Dr. Judd considered Belcher's "mental state, the crimes that had occurred and the crimes that he was responsible for, his general mental capacity and whether there existed a mental disorder. Dr. Judd evaluated [Belcher] using the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), the Hare Psychopathy Checklist Revised (PCL-R), as well as the Violence Risk Appraisal Guide-Revised (VRAG-R) actuarial instrument." CP at 850. Dr. Judd no longer diagnosed Belcher with "Paraphilia

NOS (Non-consent),"³ and provisionally diagnosed him with "Specified Paraphilic Disorder (Non-consent), and Rule-Out Other Specified Paraphilic Disorder (Non-consent), In Remission." CP at 851. Dr. Judd opined that Belcher continued to meet the "criteria for Antisocial Personality Disorder with the presence of high levels of psychopathy which meets the definition of a mental abnormality" as defined in RCW 71.09.020(8). CP at 851.

¶13 Dr. Judd further testified that his diagnosis of Belcher's mental abnormality, "that being a congenital or acquired condition affecting the emotional or volitional capacity, which predisposes the person to the commission of criminal sexual acts in a degree constituting such person a menace to the health and safety of others." CP at 853. In assessing Belcher's risk of likelihood that he would commit predatory acts of sexual violence if not confined to a secure facility, Dr. Judd based his opinion on the VRAG-R. His evaluation placed Belcher at the 95.5 percentile compared to the standardized sample, which meant that "[s]eventy-six percent of individuals with similar scores recidivated at 5 years of time at risk and 87 percent recidivated at 12 years of time at risk." CP at 853. Dr. Judd also considered other factors empirically associated with risk, including Belcher's level of psychopathy. On the PCL-R, Dr. Judd gave Belcher a score of 31 out of a possible 40, which showed that Belcher had a much higher risk of both general and sexual recidivism. Dr. Judd testified that future acts of sexual violence by Belcher would also likely be predatory.

¶14 Dr. Abbott testified on Belcher's behalf. He opined that "Belcher did not suffer from any mental abnormality or personality disorder and has never suffered from one."⁴ CP at 855.

¶15 On February 11, 2015, the trial court concluded Belcher continued to meet the definition of a SVP and ordered Belcher to remain committed to the SCC. Belcher appeals.

ANALYSIS

I. RIGHTS AND PROCEDURES AFFORDED TO INDIVIDUALS FACING SVP COMMITMENT

¶16 "It is well settled that civil commitment is a significant deprivation of liberty, and thus individuals facing SVP commitment are entitled to due process of law." In re Det. of Morgan , 180 Wash.2d 312, 320, 330 P.3d 774 (2014). The " ‘process due’ " to a person subject to a SVP petition is the procedure allocated by " ‘the statute which authorizes civil incarceration.’ " In re Det. of Strand , 167 Wash.2d 180, 187, 217 P.3d 1159 (2009) (quoting In re Det. of Martin , 163 Wash.2d 501, 511, 182 P.3d 951 (2008) ). Individuals facing commitment have, among other rights, the right to a trial, the right to an expert to conduct an evaluation on his or her behalf, and to the right to the assistance of appointed counsel. RCW 71.09.050.

¶17 When the Washington Supreme Court "upheld the SVP civil commitment scheme against a substantive due process challenge," it noted the legislature's " ‘honest recognition of the difficulties inherent in treating those afflicted with the mental abnormalities causing the sex predator condition.’ " Morgan , 180 Wash.2d at 319, 330 P.3d 774 (quoting In re Pers. Restraint of Young , 122 Wash.2d 1, 31, 857 P.2d 989 (1993) ). Yet, the court...