In re Leck
| Citation | 334 P.3d 1109,180 Wash.App. 492 |
| Decision Date | 14 March 2014 |
| Docket Number | No. 42573–4–II.,42573–4–II. |
| Court | Court of Appeals of Washington |
| Parties | In re the DETENTION OF Jack LECK II, Petitioner. |
Maureen Marie Cyr, Washington Appellate Project, Seattle, WA, for Appellant.
Tricia S. Boerger, Sarah Sappington, Office of the Attorney General, Seattle, WA, for Respondent.
PENOYAR, J.P.T.1 ¶ 1 Jack Leck II appeals a jury verdict determining him to be a sexually violent predator (SVP). Leck contends that his right to due process was violated when (1) the jury was instructed on an alternative means of proving his SVP status that was not alleged in the petition, (2) he was not allowed to appear in person at a reconsideration hearing addressing the recent overt act requirement, and (3) the State's expert witness was allowed to refer to hearsay in expressing his opinion about Leck's SVP status. Leck also argues that the State had no authority to file an SVP petition against him in 2008 under the law. then in effect and that applying the 2009 law retroactively violated his right to due process. We hold that the State had authority to file the petition under both versions of the law, as explained in In re Detention of Durbin, 160 Wash.App. 414, 248 P.3d 124, review denied, 172 Wash.2d 1007, 259 P.3d 1108 (2011). We hold further that the jury instruction alleging that Leck suffered from a personality disorder did not constitute manifest constitutional error enabling Leck to raise this' issue for the first time on appeal, that the trial court did not err by refusing to continue a reconsideration hearing addressing an issue of law, and that the State's expert appropriately referred to the evidence supporting his opinion. We affirm Leek's SVP commitment.
FACTS
I. Factual Background .
¶ 2 Leck was convicted in 1984 in Alaska of second degree sexual abuse of a minor and second degree attempted sexual abuse of a minor. For purposes of Washington's SVP laws at chapter 71.09 RCW, these two convictions amount to “sexually violent offenses.”2 Leck was released on parole for these offenses in My 1996. After being in and out of confinement for various parole violations, Leck was unconditionally released in September 2002.
¶ 3 In April 2003, Leck applied for a membership at the YMCA in Bremerton, Washington. A YMCA employee, aware that Leck was a sex offender in Alaska, contacted Bremerton police. Having been informed by Leek's family3 when Leck was released in 2002 that he might try to enter the Bremerton YMCA, the police contacted the address Leck had left there; the address was for a charitable organization at which Leck had begun volunteering a week earlier. The police searched the organization's computer to which Leck had had access during that week, discovering numerous images downloaded during that time of minors engaged in sexually explicit conduct. Leck was arrested and later convicted in Kitsap County Superior Court of 46 counts of possession of depictions of a minor engaged in sexually explicit conduct.
I. Procedural Background
¶ 4 In April 2007, shortly before Leck completed serving his sentence for the Kitsap County convictions, the State filed a petition in Thurston County alleging that Leck was an SVP.4 Leck was transported first to the Thurston County jail and then, after a probable cause finding under RCW 71.09.040, to the Special Commitment Center on McNeil Island to await his commitment trial.
¶ 5 In May 2008, before Leek's trial, the Washington Supreme Court held that an SVP petition was improperly filed in Thurston County where the alleged SVP had committed sexually violent offenses outside Washington as well as offenses that were not sexually violent in Clark County, Washington. In re Det. of Martin, 163 Wash.2d 501, 504–05, 182 P.3d 951 (2008). In view of Martin, the State moved to dismiss the Thurston County petition against Leck and—at the request of the Kitsap County prosecutor—filed a petition against Leek in Kitsap County in July 2008.5
¶ 6 The Kitsap County petition was based on consulting psychologist Dale Arnold's 2006 evaluation of Leck in which Arnold diagnosed Leck with pedophilia.6 As grounds for filing, the petition, the State alleged that Leck had a mental abnormality—namely, pedophilia—but did not allege any personality disorder.
¶ 7 Leck moved to dismiss the petition in December 2008 for lack of jurisdiction and probable cause, arguing that he was unlawfully detained at the time the State filed the petition in Kitsap County. Relying on In re Detention of Keeney, 141 Wash.App. 318, 330, 169 P.3d 852 (2007), the trial court concluded that an unlawful detention under a criminal proceeding does not divest the court of its power to process an SVP petition, and so the court denied Leck's motion in May 2009.
¶ 8 Then, in October 2010, the State moved for a ruling that, as a matter of law, Leck's 2003 convictions for possession of depictions of minors engaged in sexually explicit conduct qualified as a recent overt act, which would relieve the State of its burden to prove a recent overt act at trial. Attached to the State's motion was an update to Arnold's evaluation based on his personal interview with Leck in September 2010. In the updated evaluation, Arnold diagnose Leck with a personality disorder that predisposed him to commit criminal sexual acts. At no point, however, did the State amend the petition to include this personality disorder as grounds for the petition.
¶ 9 Treating the State's recent-overt-act motion as one for partial summary judgment, the trial court denied the motion, pointing to conflicting expert opinion on Leck's mental condition. The State moved for reconsideration. At the reconsideration hearing, with Leck present telephonically, the trial court vacated its previous ruling and granted the State's motion, ruling that Leck's 2003 conviction qualified as a recent overt act.
¶ 10 After Leck's first trial ended in a mistrial, he was retried. At the end of that second trial, the court instructed the jury as follows:
Clerk's Papers (CP) at 1580 (emphasis added). Additional instructions defined both “mental abnormality”7 and “personality disorder.”8 Leck did not object to any of these instructions.
¶ 11 After the jury returned a verdict finding that the State had proved beyond a reasonable doubt that Leck was an SVP, the court ordered him committed to the Special Commitment Center. Leck appeals.
ANALYSIS
¶ 12 Leck first argues that the State did not have authority to file a petition against him under the law in effect in 2008. Leck further argues that retroactively applying the law as amended in 2009—under which the State would have had authority to file the petition—would deny him due process. But in a recent case with analogous facts, we held that the State had authority under the 2008 law to file the SVP petition in question. Durbin, 160 Wash.App. at 429, 248 P.3d 124. We also held in Durbin that applying the 2009 law retroactively, which the legislature had clearly intended, did not violate due process. 160 Wash.App. at 431, 248 P.3d 124. Accordingly, the State was not precluded from filing the petition against Leek under either version of the law.
¶ 13 Leck argues next that his statutory and due process right to notice was violated because the trial court instructed the jury on an alternative means (personality disorder) not mentioned in the petition alleging that Leck was an SVP. The State responds that Leck waived this argument by not challenging instruction 4, the “to commit” instruction, at trial. Leck argues that he may raise this issue for the first time on appeal under In re Personal Restraint of Brockie, 178 Wash.2d 532, 309 P.3d 498, (2013).
¶ 14 In Brockie, the Supreme Court explained that failing to properly notify a defendant of the nature and cause of the accusation of a criminal charge is a constitutional violation. 178 Wash.2d at 536, 309 P.3d 498 . The Brockie court, explained further that when a defendant claims for the first time on appeal that the jury was instructed on an uncharged alternative means of committing a crime, the reviewing court should apply the line “of cases beginning” with State v. Severns, 13 Wash.2d 542, 125 P.2d 659 (1942). Brockie, 178 Wash.2d at 537, 309 P.3d 498. This case law stands for the proposition that it is error for a trial court to instruct the jury on an uncharged alternative means in a criminal case and that, on appeal, it is the State's burden to prove that the error was harmless. Brockie, 178 Wash.2d at 536, 309 P.3d 498 (citing Severns, 13 Wash.2d at 548, 125 P.2d 659 ; State v. Bray, 52 Wash.App. 30, 34–35, 756 P.2d 1332 (1988) ). The error of offering an...
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