In re Detention of Stout, 53332-1-I.

• Decision Date: 02 May 2005
• Docket Number: No. 53332-1-I.,53332-1-I.
• Citation: 128 Wash. App. 21,114 P.3d 658,128 Wn. App. 21
• Parties: In re DETENTION OF: Roy Donald STOUT, Jr. State of Washington, Respondent, v. Roy Donald Stout, Jr., Appellant.
• Court: Washington Court of Appeals

114 P.3d 658

128 Wash. App. 21

128 Wn. App. 21

In re DETENTION OF: Roy Donald STOUT, Jr.

State of Washington, Respondent, v. Roy Donald Stout, Jr., Appellant.

No. 53332-1-I.

Court of Appeals of Washington, Division 1.

May 2, 2005.

Publication Ordered June 10, 2005.

Elaine L. Winters, Washington Appellate Project, Seattle, Counsel for Appellants.

Malcolm Ross, Attorney General of Washington, Seattle, Counsel for Respondents.

BAKER, J.

Roy Donald Stout, Jr. appeals his commitment as a sexually violent predator. He argues, among other things, that the State was required to reprove at his commitment hearing that he committed burglary, which was the crime that he was incarcerated for when the State filed a commitment petition under chapter 71.09 RCW. We hold that the State was not required to reprove that Stout committed burglary. It was only required to prove that the burglary was sexually motivated. Further, Stout's counsel was not ineffective, and the superior court's findings are supported by sufficient evidence. We affirm.

I.

Stout pleaded guilty to first degree burglary in 1997. He was originally charged with indecent liberties for touching Tammy Dyer without consent. The incident occurred when Stout visited Dyer at home one afternoon and she invited him in to talk. Stout directed Dyer's children into a bedroom by speaking sharply to them. After the children left the living room, Stout tried to move his hand up Dyer's thigh, placed his hand on her breast, and attempted to kiss her. She resisted and Stout pushed her back on the couch by placing his hand across her throat. His thumb left a light bruise on her neck. Dyer got away from Stout's grasp and, after he left, she called the police.

While Stout was serving a 75-month sentence, the State petitioned to have him committed as a sexually violent predator under chapter 71.09 RCW. The State alleged that the burglary was sexually motivated, constituting a sexually violent offense. Stout has a lengthy criminal history, which includes both sexual and nonsexual offenses. On at least five occasions, Stout has engaged, or attempted to engage, in sexual acts with women without their consent.

During Stout's commitment trial, the State admitted evidence of these incidents, including facts surrounding his encounter with Karen Winters in 1982. Stout testified that he approached Winters outside of a bar and that they attempted to have sexual intercourse. At some point, police officers arrived and heard Winters yelling that she was being raped. When Winters emerged from the bushes, her face was swollen and her lip was bloody. Stout was charged with attempted rape, but a jury found him not guilty.

The State also entered evidence surrounding a 1990 conviction for third degree assault. Joan G., who is mildly retarded, testified that she met Stout when she went to his house with a friend and the friend's boyfriend. Joan G. allowed Stout to give her a ride back to her friend's house. On the way, Stout stopped the car and forced Joan G. to have sex with him, despite her saying "no," and attempting to push him away. Stout was originally charged with rape in the third degree, but the State amended the charge to the lesser crime of third degree assault in exchange for his Alford¹ plea.

Additionally, the State admitted evidence surrounding Stout's 1992 conviction for indecent liberties by forcible compulsion. Kimberly Orestad testified that she was driving home one night when Stout pulled his truck behind her vehicle and began flashing his lights. Orestad mistakenly thought she was being followed by someone she knew and pulled into the parking lot of a closed convenience store. Stout walked over to the driver's side door and offered Orestad money to feel her "pussy." Orestad said "no," and Stout grabbed her arm and threatened to break it. He also grabbed Orestad's breast. Orestad quickly backed her vehicle out of the parking space and escaped.²

After a nonjury commitment trial, the superior court concluded that the burglary for which Stout was incarcerated was sexually motivated, and that Stout is a sexually violent predator.

II.

Chapter 71.09 RCW is a civil statute that authorizes the State to involuntarily commit an individual to a secure treatment facility when he is found, after trial, to be a sexually violent predator.³ To commit a person as a sexually violent predator, the State must prove that the individual: (1) has been convicted of or charged with a crime of sexual violence; (2) suffers from a mental abnormality or personality disorder; and (3) that the disorder makes him more likely than not to engage in predatory acts of sexual violence if not committed to a secure treatment facility.⁴ The State must also show that the defendant's mental abnormality or personality disorder causes him to have serious difficulty controlling his dangerous behavior.⁵ If an individual is not incarcerated for a sexually violent offense at the time a petition for commitment is filed, due process requires the State to prove that the individual committed a recent overt act of sexual violence.⁶

A. Sexually Violent Offense

Stout first contends that the State did not prove beyond a reasonable doubt that he was convicted of or charged with a sexually violent offense. He argues that the State was required to reprove that he committed burglary, in addition to proving beyond a reasonable doubt that it was sexually motivated. This is a question of law, which we review de novo.⁷

The State was not required to reprove that Stout committed burglary. Under chapter 71.09 RCW, the State was only required to show that Stout was either "convicted of or charged with a crime of sexual violence."⁸ Burglary in the first degree qualifies as a sexually violent offense if "either at the time of sentencing for the offense or subsequently during civil commitment proceedings ... [it] has been determined beyond a reasonable doubt to have been sexually motivated."⁹

Because Stout pleaded guilty to first degree burglary, the State did not establish sexual motivation at the sentencing hearing. Therefore, during the commitment proceeding, the State alleged, and the trial court found beyond a reasonable doubt, that the burglary was sexually motivated.¹⁰ Thus, the State proved that Stout has been convicted of a crime of sexual violence. The State was not required to reprove he committed burglary. And because Stout was incarcerated for this offense at the time the petition was filed, the State was not required to prove a recent overt act.

B. Effective Assistance of Counsel

Next, Stout argues that his counsel was ineffective. Defendants have a statutory right to counsel at all stages of a commitment trial.¹¹ In In re Detention of Smith,¹² we applied the Strickland¹³ analysis to determine whether counsel was effective for purposes of chapter 71.09 RCW.¹⁴

On review, there is a strong presumption that counsel was effective.¹⁵ Under the Strickland test, the defendant must establish two things. First, he must show that his counsel's actions fell below an objective standard of reasonableness.¹⁶ Second, he must establish that, but for his counsel's deficient assistance, a reasonable probability exists that the outcome would have been different.¹⁷ An attorney's legitimate trial strategy or tactics cannot constitute ineffective assistance.¹⁸

Stout claims three bases for ineffective assistance of counsel. First, he argues that his attorney should have objected to the State's evidence of the 1982 rape charge because he was acquitted by a jury. He claims that the State was collaterally estopped from introducing evidence of the incident. The acquittal fails the first test for determining whether it collaterally estops the challenged evidence. Washington courts apply a four-part test to determine whether a litigated issue should be given collateral estoppel effect: "(1) the issue decided in the prior adjudication [must be] identical to the one presented in the current action, (2) the prior adjudication must have resulted in a final judgment on the merits, (3) the party against whom collateral estoppel is asserted [must have been] a party or in privity with a party to the prior adjudication, and (4) precluding relitigation of the issue [must] not work an injustice on the party against whom collateral estoppel is to be applied."¹⁹

The specific issue decided in the 1982 criminal trial was whether Stout attempted to rape Winters. In his commitment trial, the issue was whether he is a sexually violent predator. That determination is based on a number of factors, and the incident with Winters was relevant evidence, but far from conclusive. As the State points out, the superior court did not find that Stout attempted to rape Winters. Rather, it found that intercourse was attempted, and Winters' face was swollen and bloody when police arrived. This evidence is relevant to whether Stout is sexually abusive. Stout's attorney acted reasonably by not objecting to evidence surrounding the 1982 incident.

Stout also claims that his attorney should have objected to evidence of his convictions for nonsexual offenses. But, in fact, Stout's attorney did object to the relevance of a forgery conviction. The court overruled the objection after the State explained that the crime was relevant to Stout's antisocial personality disorder (APD) because people with APD typically have a pattern of criminal offenses.

Stout cites In re Personal Restraint of Young²⁰ for the proposition that nonsexual convictions are never relevant in a sexually violent predator trial. In Young, our Supreme Court stated that it did not "perceive any relevance" to the testimony about the defendant's conviction for a bomb threat because it was not a sexually motivated crime.²¹ But the opinion does not elaborate on which relevancy bases the court considered.

Regardless, the issue here is not whether the trial court improperly admitted evidence, but whether Stout's...