In re Young, 51468-7-I.

• Decision Date: 22 March 2004
• Docket Number: No. 51468-7-I.,51468-7-I.
• Citation: 86 P.3d 810,120 Wash. App. 753
• Court: Washington Court of Appeals
• Parties: In re the Matter of the Detention of Andre Brigham YOUNG. Andre Brigham Young, Appellant, v. State of Washington, Respondent.

86 P.3d 810

120 Wash. App. 753

In re the Matter of the Detention of Andre Brigham YOUNG.

Andre Brigham Young, Appellant, v. State of Washington, Respondent.

No. 51468-7-I.

Court of Appeals of Washington, Division 1.

March 22, 2004.

As Amended on Denial of Reconsideration May 7, 2004.

Dennis Paul Carroll, Public Defender, Seattle, WA, for Appellant.

Jeffrey C. Dernbach, Seattle, WA, for Respondent.

AGID, J.

The trial court terminated Andre Brigham Young's annual show cause hearing under RCW 71.09.090 without further proceedings, ruling that Young had not presented prima facie evidence that his condition had so changed that he was no longer a sexually violent predator (SVP). We granted discretionary review to decide whether the trial court erred by improperly weighing the evidence and by failing to order a hearing on his SVP status. Because the actuarial risk assessment evidence Young presented, diagnostic tools that were not available when he was committed in 1991, makes a prima facie showing that he is no longer an SVP, we reverse and remand for an evidentiary hearing on the issue.

FACTS

Young was committed in March 1991 as an SVP under chapter 71.09 RCW and has been held in the Special Commitment Center (SCC) since his commitment. Under the statute, the court must review his status annually. In 2001, Young retained Dr. Howard Barbaree, a licensed psychologist with extensive experience evaluating and treating individuals with sexual deviancy problems, to assess whether his condition has changed so that he no longer meets the criteria for an SVP. Dr. Barbaree's report opined that Young is no longer an SVP because, having reached the age of 61, his risk of reoffending is reduced to zero.

On November 30, 2001, the trial court held Young's annual show cause hearing at which he submitted Dr. Barbaree's report as evidence that he was no longer an SVP. The trial court concluded that the evidence contained in the report was insufficient to establish that he meets the statutory standard for a new hearing because it was not a complete assessment of Young's condition.¹ It therefore denied his request for a new commitment hearing under RCW 71.09.090.

In 2002, Dr. Barbaree updated his assessment of Young to address some of the concerns the trial court expressed in 2001, including personally interviewing Young and reviewing all SCC psychological reports about his condition. Young presented the updated report at his 2002 show cause hearing, but the trial court again denied him a full evidentiary hearing, finding he had not established probable cause that his condition had "so changed" that he no longer met the definition of an SVP. Young appeals the 2002 determination.

ANALYSIS

Under RCW 71.09.090(2)(c), a person committed as an SVP has a right to an annual review and show cause hearing on his status.

If the court at the show cause hearing determines that either: (i) The state has failed to present prima facie evidence that the committed person continues to meet the definition of a sexually violent predator and that no proposed less restrictive alternative is in the best interest of the person and conditions cannot be imposed that would adequately protect the community; or (ii) probable cause exists to believe that the person's condition has so changed that: (A) The person no longer meets the definition of a sexually violent predator; or (B) release to a less restrictive alternative would be in the best interest of the person and conditions can be imposed that would adequately protect the community, then the court shall set a hearing on either or both issues.[²]

In In re Detention of Petersen, which was decided after the annual hearing at issue here, the Washington Supreme Court held that the burden of proof at a show cause hearing under RCW 71.09.090(2) is on the State.³ The petitioner can establish probable cause by making a prima facie showing. At this stage of the proceedings, the trial court must not weigh the evidence.⁴ The Petersen court discussed two situations in which a trial court may determine there is probable cause to proceed to a new trial. The first arises when the State fails to present prima facie evidence that the detainee continues to meet the definition of an SVP. In the second situation, the detainee may present

his own evidence which, if believed, would show (1) the prisoner no longer suffers from a mental abnormality or personality disorder, i.e., the prisoner has "so changed," or (2) if the prisoner still suffers from a mental abnormality or personality disorder, the mental abnormality or personality disorder would not likely cause the prisoner to engage in predatory acts of sexual violence if conditionally released to a less restrictive alternative or unconditionally discharged.... [⁵]

A trial court's decision about whether evidence meets the probable cause standard is reviewed de novo.⁶ Young claims that Dr. Barbaree's report and accompanying declaration was sufficient evidence under chapter 71.09 RCW and Petersen to require the trial court to order a new commitment hearing. The State argues that Dr. Barbaree's report and accompanying declaration do not support Young's contention that he has "so changed" that he is no longer an SVP because, based on the actuarial studies on which Dr. Barbaree relies, Young was not an SVP in 1991 when he was originally committed and therefore he has not changed as required by the statute.⁷ It also asserts that, other than Young's being one year older, there are no facts supporting a showing that his condition has changed. Finally, the State contends Dr. Barbaree's opinion is conclusory. We conclude the court erred by failing to order a new hearing under RCW 71.09.090(2)(c)(ii)(A) and Petersen for two reasons.

I. Weighing the Evidence

First, the trial court in this case appears to have weighed the evidence presented, rather than simply determining whether Young presented evidence that his condition had changed sufficiently to meet the statutory standard. In In re Thorell, the companion case to Petersen, the Supreme Court concluded the trial court erred when it weighed evidence in determining probable cause at an annual show cause hearing.⁸ Thorell presented expert testimony that a particular medication regime reduced his risk to reoffend. Because of the reduced risk and other aspects of his evaluation, the expert recommended that Thorell be released to less restrictive alternative treatment. The trial court denied Thorell an evidentiary hearing, stating that the expert's opinion appeared to be "very guarded."⁹ The Washington Supreme Court concluded that the trial court misapplied the standard because its ruling "rings of weighing the evidence, not simply determining if it exists."¹⁰

In her oral ruling, the trial judge here weighed Dr. Barbaree's report against the State's evidence and suggested the State's report was more credible than Young's. She appeared to dismiss Dr. Barbaree's report¹¹ and rely instead on the State's report, reading portions of it aloud. The sections she read in court discussed Young's allegedly improper behavior at the SCC, including engaging staff in "questionable conversations or interactions," collecting staff telephone numbers, giving a female staff member a rosebud when he should not have done so, sending a female staff member interoffice mail, and making "inappropriate" comments to the SCC staff. The trial court also stated that she considered Young's failure to engage in meaningful treatment for the last several years, which suggested that "nothing had changed." Finally, she appears to weigh Dr. Barbaree's opinion about Young's age against evidence of Young's good physical condition, stating, "[H]e seems pretty healthy [and] I don't know why this age thing makes a difference." Like the oral ruling in Thorell, these comments "ring of weighing the evidence."¹²

An annual show cause hearing is not the proper venue to challenge and weigh the evidence. The State will have an opportunity to challenge Dr. Barbaree's opinion, and a trier of fact will have the opportunity to weigh his opinion against the State's evidence in a proper venue—a new commitment hearing. By discounting Dr. Barbaree's opinion and weighing it against the State's evidence, the trial court substituted its judgment for that of Young's expert. Under Petersen and Thorell, the court may only determine whether the evidence, if believed, is prima facie evidence requiring a new evidentiary hearing.

II. Young's Probable Cause Showing

Young presented sufficient evidence to make a prima facie probable cause showing. Like the respondent in Thorell, Young submitted a declaration of a qualified expert. The expert, Dr. Barbaree, stated:

4. ... It is my opinion that, as a result of Mr. Young's relatively advanced age, he no longer meets the definition of a Sexually Violent Predator. Because of his advanced age, he is no longer more likely than not to commit future acts of predatory sexual violence if he is not confined to a secure facility.

5. I hold the opinion contained in my report to a reasonable degree of psychological certainty.

He specifically detailed the reasons for his decision in an eight page report, and he stated that the documents and procedures he used are of a kind reasonably relied on by psychologists completing forensic evaluations. The report included actuarial studies, which "[s]cientific research has consistently shown ... are more accurate than clinical judgments alone in predicting future violence and sex offending among individuals released into the community." One of the actuarial studies included in the report is an assessment of risk based on the "Static-99" Instrument. The Static-99 Table indicated that Young posed a 52 percent likelihood of sexually reoffending within 15 years. But Dr. Barbaree indicated that the actuarial tables distort risk assessments for older offenders because they do not adequately account for the aging...