In the Matter of The Det. of Robert Danforth

• Decision Date: 10 November 2011
• Docket Number: No. 84152–7.,84152–7.
• Parties: In the Matter of the Detention of Robert DANFORTH, Petitioner.
• Court: Washington Supreme Court

173 Wash.2d 59

264 P.3d 783

In the Matter of the Detention of Robert DANFORTH, Petitioner.

No. 84152–7.

Supreme Court of Washington, En Banc.

Argued Feb. 2, 2011.Decided Nov. 10, 2011.

Lila Jane Silverstein, Washington Appellate Project, Seattle, WA, for Petitioner.David J.W. Hackett, King County Prosecutor's Office, Seattle, WA, for Respondent.J.M. JOHNSON, J.

[173 Wash.2d 60] ¶ 1 In October 2006, Robert Danforth went to the King County Sheriff's Office, described his history of sex offenses, and made explicit descriptions of his plans to molest boys and have intercourse with a child. He repeatedly said that he would act on his plan if he was not committed as a sex offender.

¶ 2 Under the authority of former RCW 71.09.030(5) (1995), the King County prosecuting attorney filed a petition to civilly commit Danforth as a sexually violent predator. Danforth moved for summary judgment, arguing that his actions did not constitute a “recent overt act” to qualify him for commitment proceedings under former RCW 71.09.020(10) (2006), recodified as RCW 71.09.020(12). He also argued that chapter 71.09 RCW was unconstitutionally vague as applied to him. The trial court denied his motion for summary judgment. The Court of Appeals affirmed. In re Det. of Danforth, 153 Wash.App. 833, 223 P.3d 1241 (2009). Danforth petitioned this court for discretionary review, which was granted. In re Det. of Danforth, 168 Wash.2d 1036, 233 P.3d 888 (2010). We affirm the Court of Appeals.

Facts and Procedural History

1. Danforth's History of Sex Offenses

¶ 3 Danforth has a long record of criminal behavior and sex offenses. In 1970, he was arrested for sexually abusing four boys between the ages of 7 and 13. Representative of his abuse of the other boys, Danforth put one boy on a bed, moved on top of him, kissed him, touched the boy's private area, and rubbed the boy's arm against Danforth's private area. Danforth was prosecuted for these offenses, but the case was dismissed for a speedy trial violation.

¶ 4 In 1971, Danforth approached a group of young boys at a ballpark and asked them if they wanted to have “sex play.” Danforth, 153 Wash.App. at 837, 223 P.3d 1241. Danforth was convicted of indecent liberties for this incident. The court ordered that he be sent for treatment at Western State Hospital. After a short time at Western State Hospital, Danforth was found to be not amenable to treatment and was sent to prison.

¶ 5 In August 1987, Danforth asked a 16–year–old boy and his friend to participate in sexual activity. For this incident, he was charged and convicted of two counts of communication with a minor for immoral purposes. The Court of Appeals later reversed the convictions because it held that former RCW 9.68A.090 (1986) was unconstitutionally vague.¹ This court overruled that holding in State v. McNallie, 120 Wash.2d 925, 933, 846 P.2d 1358 (1993) and affirmed the constitutionality of the statute.

¶ 6 Finally, in the summer of 1987, Danforth hit a 12–year–old boy over the head with a rock, forcibly pulled down the boy's pants and anally raped him, leaving the boy crying behind a theatre. For this, Danforth was convicted of second degree rape and served prison time. He was released in 1996.

2. Danforth's Admissions to the King County Sheriff

¶ 7 On October 25, 2006, Danforth went to the King County Sheriff's Office and asked to speak to a detective. He told the detective that he had come to “turn himself in” because he “[felt] like re-offending.” Clerk's Papers (CP) at 66. Danforth then told the detective that he was sexually interested in young boys. Danforth said he needed to be in a facility permanently and told the detective that his desire was “dangerous.” Id. The detective called mental health professionals (MHPs) to interview Danforth.

¶ 8 Danforth explained to the MHPs that he “desires, needs, wants to have sex with children.” Id. He told them, “I have impulses that I want to [have sex with children]. If I'm not locked up—I could reoffend.” Id. at 66–67. Among other statements, Danforth said that he would walk to a bus stop with young boys (or wait for young boys to arrive) and then try to have sex with them. He also said he would go to a specific video arcade, find a boy playing a video game, and rub against the boy, saying, “[I]f they like it I might pursue more.” Id. at 67. The detective advised Danforth of his Miranda² rights and booked him into the King County Jail. Danforth thanked him and stated that he understood his rights.

[173 Wash.2d 63] ¶ 9 The next day, a detective took a recorded statement from Danforth. ³ Danforth reiterated his prior statements and asked to be committed as a sex offender. After explicitly describing how he would have sexual intercourse with a young boy, Danforth said, “I feel I'd be a serious danger to society if I was turned loose,” and “if it wasn't for the police that I can turn to, I'm about ready to offend.” Id. at 398, 400, 406. The detective and Danforth also discussed his history of sex offenses.

3. The Petition to Civilly Commit Danforth

¶ 10 The State filed a petition to civilly commit Danforth as a sexually violent predator under former RCW 71.09.030(5) on October 26, 2006. The petition was supported by a declaration from licensed psychologist Dr. Charles A. Lund, who stated, “Danforth made explicit and specific statements of intent to commit sexual offenses against young boys ... [t]he specificity of the threat is[,] professionally speaking, quite alarming and there is imminently a high risk of sexual reoffending, given the threat.” Danforth, 153 Wash.App. at 839, 223 P.3d 1241 (second alteration in original).

4. Danforth's Motion for Summary Judgment

¶ 11 Danforth filed for summary judgment. He claimed that he had not committed a “recent overt act” because (1) his “threat to rub against the back of 13 to 15 year old boys, for sexual pleasure,” did not “[rise] to the level of a threat of sexually violent offense that satisfies ... 71.09.020(10) ...” and (2) “RCW 71.09 is unconstitutionally vague as applied [to Danforth], as speech alone is alleged as the recent overt act.” CP at 61–62.

¶ 12 Danforth's motion also maintained that the following facts were not in controversy: (1) he “made the threats set out in the State's Petition,” (2) he “went to the Sheriff's Office [and said] ‘I feel like re-offending,’ ” (3) he said he would go to a specific video arcade and “find a boy playing a video game and rub himself against the back of them,” and (4) he had said “yes [this was for his pleasure], and ‘if they liked it I might pursue more.’ ” Id. at 61.

¶ 13 Danforth also acknowledged that Dr. Lund, who had known Danforth since at least 2002,⁴ “rendered an opinion that Mr. Danforth's threat was a basis for apprehension of harm of a sexually violent nature.” Id.; see also former RCW 71.09.020(10).

¶ 14 The trial court heard the motion for summary judgment to dismiss the petition. The motion was denied. The court indicated that it found there was “sufficient evidence to survive a motion for summary judgment based on the true threat concept as being a ... recent overt act.” ⁵ Tr. of Trial Proceedings (June 12, 2008) at 85. In its order, dated July 10, 2008, the court ruled that “a reasonable jury could find that [Danforth's] acts as outlined in the evidence before the court constituted a Recent Overt Act.” CP at 420–21.

5. Danforth Stipulates to Civil Commitment Just Before Trial

¶ 15 As trial was set to begin, the State introduced a stipulation agreed to when Danforth's motion for summary judgment was denied. The stipulation reads, in pertinent part:

The Respondent and the State enter into this Stipulation for the purpose of resolving the commitment trial currently in progress.

....

By entering into this stipulation, respondent retains the right to appeal the Respondent's Motion for Summary Judgment argued before the trial court on June 12, 2008. If Mr. Danforth prevails on appeal, he will have the right to withdraw this stipulation.

....

Respondent has committed a recent overt act as that term is defined in RCW 71.09.020, namely through statements Mr. Danforth made to the [MHPs] on October 25, 2006[and] to the King County Sheriff on October 25, 2006 and October 26, 2006.

....

The Respondent understands that if the Court accepts this Stipulation [,] ... commitment shall last until Respondent's condition has so changed that he no longer meets the definition of a sexually violent predator or he is conditionally released to a [Less Restrictive Alternative] pursuant to RCW 71.09.090.

CP at 286–90. The court accepted the stipulation and found all the statutory elements necessary to commit Danforth on June 16, 2008.

6. Appeal

¶ 16 Danforth appealed the trial court's decision on his motion for summary judgment. He claimed that his actions did not constitute a threat under the plain meaning of former RCW 71.09.020(10).⁶ The Court of Appeals disagreed, holding that when viewed in the light most favorable to the nonmoving party (the State), “the evidence is sufficient to establish that Danforth expressed an intent to inflict harm” and “[t]he trial court therefore properly denied the summary judgment motion and concluded that there was sufficient evidence to submit to the jury on the issue of whether he committed a recent overt act.” Danforth, 153 Wash.App. at 842, 223 P.3d 1241.

¶ 17 Danforth also argued that unless the statute's definition of “recent overt act” is limited to true threats, it is unconstitutionally overbroad because it encompasses constitutionally protected speech. He argued his statements were only conditional statements (that he would harm others if he did not receive help). The Court of Appeals held that the true threat analysis does not apply because additional proof of conduct is required to establish a recent overt act under former RCW 71.09.030(5). Id. at 844, 223 P.3d 1241 (“the threats must be evaluated in the context of the offender's conduct,...