In re Detention of Anderson

• Decision Date: 25 July 2006
• Docket Number: No. 31915-2-II.,31915-2-II.
• Citation: 134 Wn. App. 309,139 P.3d 396
• Parties: In re the DETENTION OF John Charles ANDERSON, Appellant.
• Court: Washington Court of Appeals

139 P.3d 396

In re the DETENTION OF John Charles ANDERSON, Appellant.

No. 31915-2-II.

Court of Appeals of Washington, Division 2.

July 25, 2006.

COPYRIGHT MATERIAL OMITTED

Judith Michele Mandel, Tacoma, WA, for Appellant.

Sarah Sappington, Office of the Atty. General, Seattle, WA, for Respondent.

VAN DEREN, J.

¶ 1 John Charles Anderson appeals the trial court's decision to civilly commit him as a sexually violent predator under chapter 71.09 RCW. He argues that the trial court erred when it (1) admitted statements he made during his treatment at Western State Hospital (WSH); (2) found he committed a recent overt act; and (3) refused to allow his chosen expert's testimony. Holding that the trial court erred in refusing to appoint a testifying expert for Anderson, we reverse and remand for a new trial.

FACTS

1. Criminal History

¶ 2 In 1988, at age 17, Anderson anally raped a two and a half-year-old boy. He admitted the rape to the police.

¶ 3 Anderson also told police that he was under supervision through the juvenile court for rape charges involving a neighbor girl.¹ Anderson's probation officer referred Anderson to Michael Comte for a psychosexual evaluation. During the evaluation, Anderson admitted raping the two and a half-year-old boy. He also admitted that when he was 13 years old he attempted to rape another two-year-old boy. This rape was never reported and the State never charged Anderson with it.²

¶ 4 In June 1988, Anderson pleaded guilty to first degree statutory rape and the court sentenced him to 100 weeks at the Maple Lane school, a juvenile rehabilitation center. The court extended the sentence after he wrote a threatening letter to a teacher at the juvenile court.

¶ 5 While at Maple Lane, Anderson and another boy assaulted Anderson's sleeping roommate. They put toothpaste on a radio antenna and put the antenna down the boy's pants. They did not insert the antenna into the boy's anus, and Anderson denied trying to do so. In September 1988, Anderson pleaded guilty to two counts of custodial assault and the court sentenced him to 21 to 28 weeks for each count.

¶ 6 In July 1989, Anderson exposed himself to an adult female Maple Lane staff member. He admitted to exposing himself to the same woman several times, but she only noticed once. In September 1989, he was convicted of public indecency and sentenced to 45 days in the Thurston County jail with an additional 45 days suspended for two years conditioned on no law violations and completing a psychosexual evaluation.

¶ 7 In April 1990, Anderson again saw psychologist Michael Comte for psychological and psychosexual testing. Anderson admitted to having fantasies about the woman he exposed himself to. He said that he fantasized about putting her on a slab of plywood in four point restraints, shooting a staple gun around her, shooting staples through her breasts, inserting a large object in her anus, and then cutting off her breasts. Comte diagnosed Anderson with borderline personality disorder. He opined that Anderson lacked impulse control and posed a threat to the safety of others.

¶ 8 In 1990, after serving his sentence at Maple Lane and the Thurston County Jail, Anderson submitted to a psychological evaluation at WSH. CP 21. Subsequently, he voluntarily admitted himself to WSH, where he remained until the State commenced this action against him in February 2000.

2. Sexual History at WSH

¶ 9 During treatment at WSH, Anderson admitted fantasizing about cutting off women's breasts and hanging "them" in a shed.³ Report of Proceedings (RP) at 157. At 13, he sexually molested his 11 year old male cousin. He also attempted to lure a five year old girl into a park to rape her. He exposed himself to her, but she told him to stop and ran away. Additionally, he fantasized about a different five year old girl in his neighborhood. In addition to these fantasies, Anderson also admitted that at the age of 15 he had sexual fantasies about and anally raped a two year old boy multiple times. Also at 15, Anderson anally raped a 13 year old boy who lived in his neighborhood.

¶ 10 While at WSH, Anderson engaged in sexual behavior with at least four male patients. In 1991, he had a sexual relationship with Daryl, a mildly to moderately retarded patient. In 1994 and 1995, Anderson had a relationship with Bobby, a mildly retarded patient. In 1996, Anderson had a sexual relationship with Curtis, a mildly retarded patient. All of these encounters involved fondling, fellatio, and either attempted anal intercourse, or anal intercourse. Anderson told his treating physician, Dr. Arnholt, about each of the relationships, and Dr. Arnholt counseled Anderson to end the contact because each of the men was disabled.

¶ 11 In addition, from 1993 to 1999, Anderson had an ongoing relationship with Rory. Rory was not retarded but had low-average intelligence, a borderline personality disorder, and had been seriously physically and sexually abused as a child. Dr. Arnholt counseled both men to end the relationship. They did not end it until shortly before Anderson left WSH. According to Dr. Arnholt, Rory had a "crush" on Anderson and he thought that sexual contact with Anderson would ensure a "special relationship." RP at 79. But when that relationship did not come to fruition, Rory began to act out, had difficulty controlling his anger, and showed functional deterioration for a time.

¶ 12 Anderson also had relationships with women while at WSH. One of the women had children, which violated a WSH rule prohibiting sex offenders from forming relationships with women with children. Anderson also had sex with a female who he knew was HIV positive.

¶ 13 Because Anderson was a voluntary patient at WSH, he was allowed to leave the grounds with permission. He did so and would leave to visit his mother. He also left without permission at least twice in his ten year stay.

3. Current Proceeding

¶ 14 In February 2000, the State filed a petition alleging that Anderson was a sexually violent predator (SVP) under RCW 71.09.020.⁴ Anderson moved for a judgment on the pleadings, arguing that (1) the State, as a matter of law, failed to present sufficient facts to support the allegation that he was an SVP; and (2) his records at WSH were confidential under RCW 71.05.390 and were, therefore, inadmissible. The court denied Anderson's motion, finding that the statute implicitly allowed the court to admit the records. Anderson filed an interlocutory appeal with this court. We denied review in May 2001. Anderson unsuccessfully asked us to reconsider the denial in light of State v. Wheat, 118 Wash.App. 435, 76 P.3d 280 (2003).

¶ 15 On April 12, 2004, one week before the trial was set to begin, Anderson requested that the court appoint Dr. Richard Wollert⁵ as a testifying expert witness on Anderson's behalf. Anderson agreed, if necessary, to waive his trial date to accommodate Dr. Wollert. The State objected, arguing that Anderson already had an expert, Dr. Brian Judd, appointed at public expense but had chosen to not use him at trial.⁶

¶ 16 The court did not allow Dr. Wollert to testify, but it allowed him to consult with Anderson's counsel. The court's findings of fact and conclusions of law stated that Dr. Judd was made available to Anderson at public expense and that he was qualified in the area of sexually deviant persons. The court concluded that Anderson did not satisfy WAC 388-885-010(3)(c), which allows a person on trial for determination of SVP status to obtain a second expert at public expense upon a showing of good cause. Anderson thereafter repeatedly moved the court to allow Dr. Wollert to testify, arguing that the decision to discharge Dr. Judd had been made several years earlier by a different defense attorney and that he had since attempted to contact Dr. Judd, but had been unsuccessful. The court denied all such motions.

¶ 17 Dr. Amy Phenix testified as an expert for the State. Dr. Phenix is a forensic psychologist specializing in sex offenders and has conducted more than 200 SVP evaluations. She commonly relies on actuarial instruments to determine the likelihood a sex offender will reoffend. Actuarial instruments are tests based on statistical analyses of certain offender populations. The tests apply point levels to certain risk factors an offender may possess and those point levels produce an overall score, which represents an indication of the likelihood of reoffense.

¶ 18 Here, Dr. Phenix reviewed Anderson's entire file, which consisted of approximately 2,000 pages and included his treatment records and files from WSH, his juvenile adjudication and detention history, his prior offenses, and Dr. Comte's evaluations. In addition, Dr. Phenix met with Anderson in person for about four hours.

¶ 19 Dr. Phenix evaluated Anderson in the context of RCW 71.09.020(16), the statute that defines SVPs. First, she determined that he had been convicted of a crime of sexual violence (the 1989 statutory rape conviction). Second, she opined that he suffered from a mental abnormality or a personality disorder that caused him to have serious difficulty controlling his sexual behavior. She diagnosed Anderson with paraphilias, specifically sexual sadism, pedophilia, and a personality disorder not otherwise specified, with anti-social, borderline, and narcissistic traits. Dr. Phenix testified that sexual sadism is (1) the most deviant of all paraphilias; (2) the most unusual; (3) the most difficult to treat; and (4) predisposes Anderson to commit criminal sexual acts. She explained that paraphilias are chronic lifelong conditions that can be managed but not cured. Because Anderson had undergone years of treatment and had been unable to control his fantasies and urges, Dr. Phenix stated that he still suffered from sexual sadism and pedophilia. And thus, he was still a threat to reoffend.

¶ 20 Dr. Phenix used other evaluative tools to determine that Anderson would likely reoffend. She...