In re Detention of Anderson

• Decision Date: 09 July 2009
• Docket Number: No. 79111-2.,79111-2.
• Parties: In re the Matter of the DETENTION OF John Charles ANDERSON, Petitioner.
• Court: Washington Supreme Court

211 P.3d 994

166 Wn.2d 543

In re the Matter of the DETENTION OF John Charles ANDERSON, Petitioner.

No. 79111-2.

Supreme Court of Washington, En Banc.

Argued January 15, 2008.

Decided July 9, 2009.

Donald Boyette Lundahl, Attorney at Law, Antioch, CA, for Petitioner.

Sarah Sappington, Attorney General's Office, Seattle, WA, for Respondent.

King County Prosecutor's Office, David J.W. Hackett, Seattle, WA, Amicus Curiae on behalf of Washington State Association of Prosecuting Attorneys.

J.M. JOHNSON, J.

¶ 1 John Anderson is a convicted child rapist and, for the past decade, a mental patient institutionalized at Western State Hospital (WSH). At WSH he engaged in numerous sexual liaisons with vulnerable and developmentally disabled copatients. When he sought release, the State petitioned to commit him as a sexually violent predator under chapter 71.09 RCW.

¶ 2 The trial court appointed and funded an expert to assist in his defense, but Anderson ultimately decided not to call that expert at trial. Before trial, Anderson asked the court for the appointment of a different expert, Dr. Richard Wollert, but the trial judge denied his request. At the conclusion of Anderson's trial, the trial court found that Anderson's sexual activities at the hospital were recent overt acts, found him to meet the sexually violent predator (SVP) definition, former RCW 71.09.020(16) (2006), recodified as RCW 71.09.020(18), and ordered his commitment. The Court of Appeals affirmed the holding of the trial court on a recent overt act but reversed and remanded for a new trial holding that the trial court erred in refusing to appoint the requested testifying expert for Anderson. In re Det. of Anderson, 134 Wash.App. 309, 139 P.3d 396 (2006).

¶ 3 Anderson now claims that the trial court erred in finding recent overt acts and in denying him another expert for trial. Anderson petitioned for discretionary review, and the State cross-petitioned, arguing the State's obligation is satisfied by providing the first expert. We granted review on both issues. In re Det. of Anderson, 160 Wash.2d 1005, 158 P.3d 614 (2007).

¶ 4 This court affirms the Court of Appeals' decision to remand for a new trial at which Anderson may call Dr. Wollert, or another expert witness, to perform an evaluation and testify at trial. Whether or not Anderson's conduct amounted to a recent overt act, according to former RCW 71.09.020(10) (2006), recodified as RCW 71.09.020(12) will also be determined on remand but the acts as found do satisfy that requirement.

FACTS AND PROCEDURAL HISTORY

¶ 5 When John Anderson was 13, he lured a 5-year-old girl and exposed himself. At 15, he anally raped a 2-year-old boy and a boy 2 years his junior. When Anderson was 17, he pleaded guilty to statutory rape in the first degree of a 2 1/2-year-old boy. For this crime, Anderson was sentenced to a juvenile rehabilitation center. While serving his time at the juvenile center, he sexually abused his roommate. A year later, Anderson exposed himself to a female staff member and was convicted of public indecency.

¶ 6 Prior to Anderson's release, the State filed a petition to involuntarily commit him as an SVP.¹ Rather than contest the petition, Anderson admitted himself to WSH for treatment of sexual sadism and pedophilia.

¶ 7 While at WSH, Anderson had sexual relationships with eight patients, including four men.² The record indicates that Anderson intentionally took advantage of his sexual partners. Three of Anderson's relationships were with mildly to moderate retarded patients, while Anderson's IQ (intelligence quotient) is between 128 and 130. A fourth patient had a childhood history of severe sexual abuse and a serious personality disorder. The trial court found that Anderson "engaged in sexual contact with at least four vulnerable patients . . . all of whom he knew to be developmentally delayed, psychiatrically impaired, or both." Clerk's Papers (CP) at 187.

¶ 8 Anderson himself described these relationships as "deviant," and he admitted that he took sexual advantage of at least two patients because they were disabled. 2 Verbatim Report of Proceedings at 120. Anderson's treatment professional at WSH testified that at least three of the patients with whom Anderson had sex were incapable of consensual sex. Anderson was repeatedly told by WSH staff to end these relationships, but he ignored this instruction.³ Anderson engaged in the last of the reported sexual encounters just two months before the State filed this action.

¶ 9 After a decade in the hospital, Anderson sought to leave. The State and every expert who examined Anderson concluded that he was not safe to be at large, and the State petitioned to commit him as an SVP. While Anderson awaited trial, he was confined at the Special Commitment Center on McNeil Island.

¶ 10 Initially, the court appointed an expert for Anderson, Dr. Brian Judd, at state expense; however he ultimately decided not to use Dr. Judd at trial. Two years before trial, Anderson informed the State that he wished to consult with another expert, Dr. Richard Wollert. One week prior to trial, Anderson requested that the court appoint Dr. Wollert to testify on Anderson's behalf. Anderson agreed to waive his trial date to accommodate the State's need to interview Dr. Wollert prior to testimony. The State objected, and the trial court denied Anderson's request for appointment of this expert.

¶ 11 At trial, one of the State's experts, Dr. Amy Phenix, testified that Anderson's sexual relations with vulnerable copatients proved he was still dangerous because Anderson substituted vulnerable patients for his preferred child victims. Based on the expert testimony and documentary evidence, the trial court found that Anderson is a sexual sadist, a pedophiliac, and has a personality disorder.⁴ The trial court found that Anderson "is likely to engage in predatory acts of sexual violence if not confined in a secure facility." CP at 187. The court concluded as a matter of law that Anderson's sexual conduct toward vulnerable patients at WSH constituted a recent overt act, a prerequisite to Anderson's commitment.⁵ Id. at 189. The trial court also held, after considering the experts, that Anderson was a sexually violent predator likely to engage in predatory acts if not confined. Id. Accordingly, the trial court ordered Anderson's commitment.

¶ 12 Anderson appealed, arguing that the State failed to prove a recent overt act. Anderson also claimed the trial court abused its discretion by denying his request for appointment of another expert for trial. The Court of Appeals suggested that the State had met its burden of proving a recent overt act, but it also held that the trial court had abused its discretion in denying Anderson's request for a new expert and remanded for a new trial. Both parties sought review.

STANDARD OF REVIEW

¶ 13 We review de novo whether Anderson's acts were recent and overt. In re Det. of Marshall, 156 Wash.2d 150, 158, 125 P.3d 111 (2005). We review a trial court's decision to admit expert testimony for abuse of discretion. In re Pers. Restraint of Young, 122 Wash.2d 1, 57, 857 P.2d 989 (1993). Abuse of discretion occurs when the trial court acts on unreasonable or untenable grounds. Indus. Indem. Co. of Nw., Inc. v. Kallevig, 114 Wash.2d 907, 926, 792 P.2d 520 (1990).

ANALYSIS

I. Recent and Overt Act

¶ 14 Under the SVP law, to commit a nonincarcerated person, the State must prove a recent overt act, defined as any act or threat creating a reasonable apprehension of sexually violent harm in the mind of an objective person who knows the person's history and mental condition. Former RCW 71.09.030(5) (2008); former RCW 71.09.020(10). Anderson claims that his acts are neither recent nor overt. The State agrees it must establish this element beyond a reasonable doubt. Because Anderson does not challenge the trial court's findings of fact in this regard, we treat those findings as true. In re Estate of Jones, 152 Wash.2d 1, 8, 93 P.3d 147 (2004). Note, however, that Anderson will receive a new trial, at which he may challenge all findings.

¶ 15 Anderson's sexual activities at WSH could constitute overt acts. Dr. Phenix testified, and the trial court found, that Anderson engaged in sexual activity with vulnerable patients as substitutes for his preferred victims, children.⁶ As the Court of Appeals noted, Anderson's acts of exploiting vulnerable adults were closely akin to his assaults on children. Anderson also had ongoing sexual fantasies of children involving sexual violence. Dr. Phenix and other specialists who were familiar with Anderson's history and mental condition concluded in light of these factors that he posed a clear risk to reoffend if released from custody. Those expert opinions support a reasonable apprehension of sexually violent harm, and therefore by definition, Anderson's sexual activities could constitute overt acts. See former RCW 71.09.020(10).

¶ 16 Anderson's overt acts were recent. This court has held in the SVP context that overt acts occurring up to five years before the petition's filing may be "recent." In Marshall, the defendant committed the act in November 1995, and the State brought the petition in November 2000. Marshall, 156 Wash.2d at 153, 125 P.3d 111. We held it to be a recent overt act. Id. at 159, 125 P.3d 111. In In re Detention of Henrickson, 140 Wash.2d 686, 2 P.3d 473 (2000), one of the defendants committed his act in 1996, and the State filed the petition in 1999. Id. at 691, 2 P.3d 473. We held that this act was sufficiently recent. Id. at 696, 2 P.3d 473. Here, only two months before the State filed this petition, Anderson was reported having sex with a vulnerable copatient, the most recent reported act in a long string of such acts. The trial court correctly concluded that Anderson's acts two months before filing were recent, consistent with the law and prior decisions of this court.

II. It Was Abuse of...