In re Detention of Leyva

• Decision Date: 06 May 2014
• Docket Number: 30853-7-III
• Citation: In re Detention of Leyva, 30853-7-III (Wash. App. May 06, 2014)
• Court: Washington Court of Appeals
• Parties: In re the Detention of: ERNESTO LEYVA, Appellant.

In re the Detention of: ERNESTO LEYVA, Appellant.

No. 30853-7-III

Court of Appeals of Washington, Division 3

May 6, 2014

UNPUBLISHED OPINION

SIDDOWAY, C.J.

Ernesto Leyva appeals his civil commitment under the sexually violent predator (SVP) statute, chapter 71.09 RCW. He raises constitutional challenges to the SVP statute as vague, to the State's evidence as falling short of that required by due process, and to the court's evidentiary rulings and instructions. Most of his challenges are predicated on the fact that the State's evidence, in a commitment proceeding that the State initiated when Mr. Leyva was 18 years old, was largely of sexual misconduct he committed as a juvenile.

No scientific consensus supports Mr. Leyva's contention that sexual misconduct committed as a juvenile is irrelevant in assessing a person's future inability to control behavior. Because we find no error or abuse of discretion, we affirm.

FACTS AND PROCEDURAL BACKGROUND

The State filed a petition to commit Ernesto Leyva as a sexually violent predator^[1]6 months after his 18th birthday, in June 2009.

By age 18, Mr. Leyva had been charged with and pleaded guilty to the crime of indecent exposure occurring when he was age 14 and in the eighth grade, receiving 6 months of community supervision. Very shortly thereafter he exposed himself again, this time entering into a diversion agreement requiring community service. In 2006, he was charged with two counts of first degree child molestation for molesting two young girls at his church the prior year (also when he was age 14), to which he pleaded guilty to one count of child molestation in the first degree and qualified for a special sex offender disposition alternative (SSODA) sentence provided by RCW 13.40.162. While staying with a family during the community treatment portion of his SSODA for the molestation conviction, he was arrested and charged with second degree rape of a 16-year-old daughter of the family. His SSODA was revoked and he ultimately pleaded guilty to rape in the third degree.

In addition to the conduct for which Mr. Leyva was criminally charged, these and other acts of sexual misconduct committed while in the seventh and eighth grades led to his being suspended from school and later, after his fourth act of sexual misconduct, expelled.

Mr Leyva was interviewed about his sexual history three times by Donald King, a law enforcement consultant. The first and second interviews followed Mr. Leyva's arrest on his third charge for a sexual crime; Mr. Leyva's defense lawyer engaged Mr. King to interview her client in support of the request for SSODA sentencing. The third interview was after the SSODA was imposed and Mr. Leyva was under the supervision of the Grant County Superior Court.

Mr Leyva revealed to Mr. King that he had been sexually victimized by as many as three individuals. He had no recollection of the first, but had been told by his mother and pastor that a man who used to live in the family home might have molested him. He recalled the second: sometime between ages 5 and 7, he was molested by a 16- or 17-year-old neighbor girl who would undress him and engage in sexual touching. The third was at age 12, when he was molested by a 16- or 17-year-old boy with whom he engaged in penile/anal intercourse that was repeated a number of times thereafter. Mr. Leyva ultimately viewed it as consensual.

Mr Leyva revealed to Mr. King that he had engaged in many other acts of sexual misconduct with two of his sisters and other children, for which he was never caught or charged. The misconduct included completed or attempted acts of vaginal and anal intercourse, fellatio, digital penetration, exposing his erect penis, and touching girls on their breasts and buttocks.

A commitment trial under chapter 71.09 RCW was held in April 2012. The State presented the testimony of Mr. Leyva by video deposition and called, as other witnesses, Mr. King; Scott Ramsey, who served as principal of Mr. Leyva's junior high school during the time Mr. Leyva was in seventh and eighth grade; and its retained expert, Brian Judd Ph.D., a neuropsychologist.

Dr. Judd expressed his opinion that Mr. Leyva had a mental abnormality that made him more likely than not to reoffend if not confined to a secure facility. He told the jury that he had diagnosed Mr. Leyva with paraphilia not otherwise specified (NOS) (nonconsent) and had made a provisional diagnosis of exhibitionism and frotteurism. He testified that Mr. Leyva's condition affected his emotional or volitional capacity as evidenced by Mr. Leyva's reports that he could not help himself when tempted; had difficulty controlling his urges; and continued to offend even after being caught and punished, both judicially and nonjudicially.

Mr. Leyva called two witnesses in his defense: his father, Ernesto Leyva Sr., and his retained expert, Richard Wollert Ph.D. Dr. Wollert testified that Mr. Leyva did not fit the statutory criteria of mental abnormality or the requirements of difficulty controlling behavior and risk of reoffense. He testified that Mr. Leyva's sexual conduct before age 18 had all taken place during a period of psychosocial immaturity, when the decision making and emotional control centers of his brain had not reached maturity. As a result, he testified, Mr. Leyva's conduct as a juvenile was not an indicator of his ability to exercise volitional control in the future.

The jury returned a verdict that the State had proved that Mr. Leyva is a sexually violent predator and the trial court entered an order of commitment. Mr. Leyva appeals.

ANALYSIS

Mr Leyva makes five assignments of error on appeal. He argues that (1) the SVP statute's definition and use of the term "mental abnormality" is unconstitutionally vague as applied to him, given Dr. Judd's diagnosis; (2) his commitment violates due process where it was predicated on his conduct as a juvenile; (3) the trial court violated his right to present a defense by limiting Dr. Wollert's testimony; (4) by permitting SVP commitment based upon a showing that a person "more probably than not" will engage in acts of sexual violence if not confined, the SVP statute violates the requirement of Addington v. Texas^[2] that criteria for civil commitment be proved by clear and convincing evidence; and (5) the trial court's failure to provide a Petrich^[3] instruction violated his right to jury unanimity.

We address his assignments of error in turn.

I. Vagueness Challenge

"Freedom from bodily restraint has always been at the core of the liberty interest protected by the due process clause of the fourteenth amendment to the United States Constitution. Commitment for any reason constitutes a significant deprivation of liberty triggering due process protection." In re Det. Of Thorell, 149 Wn.2d 724, 731, 72 P.3d 708 (2003) (citing Foucha v. Louisiana, 504 U.S. 71, 80, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992)). "The institutionalization of an adult by the government triggers heightened, substantive due process scrutiny. There must be a 'sufficiently compelling' governmental interest to justify such action, usually a punitive interest in imprisoning the convicted criminal or a regulatory interest in forestalling danger to the community." Reno v. Flores, 507 U.S. 292, 316, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993) (O'Connor, J., concurring) (quoting United States v. Salerno, 481 U.S. 739, 748, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987)). The civil commitment of a sexually violent predator satisfies due process if the standards and procedure applied couple "proof of dangerousness with proof of an additional element, such as 'mental illness, ' because the additional element limits confinement to those who suffer from an impairment 'rendering them dangerous beyond their control.'" Thorell, 149 Wn.2d at 731-32 (quoting Kansas v. Hendricks, 521 U.S. 346, 358, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997)).

To commit an individual as a sexually violent predator, Washington's SVP statute requires that the State prove each of the following elements beyond a reasonable doubt:

"(1) That the respondent has been convicted of or charged with a crime of sexual violence; and

"(2) That the respondent suffers from a mental abnormality or personality disorder; and

"(3) That such mental abnormality or personality disorder makes the respondent likely to engage in predatory acts of sexual violence if not confined in a secure facility."

Id. at 742 (adapted from the Washington pattern jury instruction); RCW 71.09.020(18) (statutory definition of "sexually violent predator"); cf. 6A WASHINGTON Practice: Washington Pattern Jury Instructions: Civil 365.10, at 568 (6th ed. 2012) (WPI). "Mental abnormality" is defined by statute as "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 or safety of others." RCW 71.09.020(8).

Mr Leyva argues that Dr. Judd's testimony that Mr. Leyva suffers from '"paraphilia not otherwise specified, non-consent with the consideration and the rule out of pedophilia, sexually attracted to both, non-exclusive type, '" is a "compound diagnosis, " not specified in the American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders; DSM-IV-TR (4th rev. ed. 2000) (DSM-IV-TR), and "a determination of the expert's own creation." Br. of Appellant at 1-2. If the statutory definition of "mental abnormality" is deemed to include such a diagnosis, he argues that it is so lacking in ascertainable standards for enforcement that it is constitutionally vague as to him. A statute is unconstitutionally vague if it is "framed in terms so vague that...