In re Belcher

189 Wash.2d 280

399 P.3d 1179

In the MATTER OF the DETENTION OF Troy BELCHER, Petitioner.

No. 93900-4

Supreme Court of Washington.

Argued June 15, 2017

Filed Aug. 17, 2017

Travis Stearns, Washington Appellate Project, 1511 3rd Ave., Ste. 701, Seattle, WA, 98101-3647, for Petitioner.

Brooke Elizabeth Burbank, Assistant Attorney General, 800 5th Ave., Ste. 2000, Seattle, WA, 98104-3188, for Respondent.

Andrea Ruth Vitalich, King County Prosecutor's Office, 516 3rd Ave., Ste. W554, Seattle, WA, 98104-2362, as Amicus Curiae on behalf of Washington Association of Prosecuting Attorneys.

Prachi Vipinchandra Esq. Dave, Attorney at Law, 901 5th Ave., Ste. 630, Seattle, WA, 98164-2086, as Amicus Curiae on behalf of ACLU.

Amy Irene Muth, Law Office of Amy Muth, PLLC, 1111 3rd Ave., Ste. 2220, Seattle, WA, 98101-3213, as Amicus Curiae on behalf of Washington Association of Criminal Defense Lawyers.

OWENS, J.

¶1 In 2011, at the age of 26, Troy Belcher was civilly committed as a sexually violent predator. In 2015, the superior court ordered that he continue to be indefinitely committed. It based its decision on two sexually violent crimes he perpetrated as a juvenile, a diagnosis of antisocial personality disorder with high levels of psychopathy, and a finding that he was more likely than not to recommit if released.

¶2 In order to civilly commit a sexually violent predator, the finder of fact must determine that (1) the person has been convicted or charged with a sexually violent crime, (2) he or she suffers from a mental abnormality, and (3) that abnormality makes the person likely to engage in sexually predatory acts if released. RCW 71.09.020(18). We have held that juvenile offenses may be predicate offenses when an adult has committed a more recent sexually overt act. However, we have not yet ruled on whether commitment can be continued using juvenile crimes as the sole predicate offenses. Belcher argues commitment under this act violates due process because it has the potential to permanently confine a person for a juvenile offense. See WASH. CONST. art. I, § 3. However, because of the robust commitment procedure, confining individuals only so long as they are a danger to society, we disagree. We hold that juvenile convictions can be predicate offenses for continued commitment proceedings under RCW 71.09.090. We further find that a diagnosis of antisocial personality disorder is sufficient for a finding of mental abnormality under the statute, and that the use of an actuarial tool grounded in both sexual and nonsexual offenses does not violate due process when applied to a sexually violent offender.

FACTS AND PROCEDURAL HISTORY

¶3 In 1998, at the age of 13, Troy Belcher sexually assaulted a 13-year-old girl. He followed the girl from a park before forcing his way inside the house in which she was babysitting, pushing her upstairs, and vaginally raping her. He was found guilty of rape in the second degree and sentenced to 65 weeks with the Department of Social & Health Service's Juvenile Rehabilitation. Two years later, while on parole, Belcher assaulted another 13-year-old girl. He offered to show her a shortcut through the woods, but instead pulled down her pants, pinned her to the ground, and threatened to harm her if she screamed. He was found guilty of attempted rape in the second degree and sentenced to a further 256 weeks. In 2004, when he was 19 and in custody with the Department of Corrections, Belcher asked a fellow inmate about having Belcher's first victim killed. He was charged with solicitation to commit murder in the first degree and intimidating a witness, but pleaded guilty to the latter charge and was sentenced to 27 months in prison.

¶4 In 2007, before Belcher was eligible for release, the State moved to have him civilly committed as a sexually violent predator (SVP). He was detained pending trial and, following a jury trial in 2011, was formally committed to the Special Commitment Center pursuant to RCW 71.090.020.

¶5 In 2015, after waiving his right to a jury, Belcher was retried at a bench trial to determine if he still met the criteria of an SVP pursuant to RCW 71.09.090. In his second trial, the court heard testimony from the State's expert psychologist, Dr. Brian Judd. Judd diagnosed Belcher with antisocial personality disorder (ASPD) with high levels of psychopathy. Judd also gave him a "rule out," or provisional, paraphilia diagnosis, indicating Belcher had exhibited certain paraphilic traits in the past but did not exhibit enough now for a full diagnosis. Judd utilized the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013), as well as the Hare Psychopathy Checklist—Revised (PCL-R) to come to his conclusions. Judd also used the Violence Risk Appraisal Guide—Revised (VRAG-R), an actuarial tool based on both sexually and nonsexually violent offenses, to determine Belcher's risk of reoffense.

¶6 Judd opined that Belcher's ASPD was significant enough to qualify as a "mental abnormality." 2B Verbatim Report of Proceedings (VRP) (Feb. 4, 2015) at 464. He worried that Belcher's high level of psychopathy would impair his emotional control and that it could correlate with more offenses encompassing greater violence. Using the VRAG-R, Judd further determined Belcher was in the highest risk group for reoffense, putting him at a 76 percent chance of reoffense within five years of release and an 87 percent chance within 12 years of release. Id. at 545-46.

¶7 The trial court agreed with Judd and found that Belcher continued to meet the definition of an SVP. The court first found that "the predicate conviction requirement under the sexually violent predator statute has been satisfied" by Belcher's two sexually violent adjudications. Findings of Fact, Conclusions of Law, & Order of Commitment (FF/CL) at 3. It also found that Judd's diagnosis of "Antisocial Personality Disorder with High Levels of Psychopathy" was a mental abnormality under the statute. Id. at 6-7. The court accepted Judd's use of the VRAG-R to determine Belcher's likelihood of committing future sexually violent offenses. It noted further that numerous other factors, not just the VRAG-R result, influenced the court's conclusion that Belcher would likely reoffend. The court ultimately found that "[Belcher] is a sexually violent predator, as that term is defined by RCW 71.09.020(18)," and continued his civil commitment. Id. at 12.

¶8 Belcher appealed, arguing that his civil commitment violated due process. He claimed that because his crimes occurred when he was a child and because he has not committed any further sexually violent acts, the State could not prove he lacked control as required to commit him. He also claimed that the State failed to prove he was likely to commit sexually violent offenses if released because the VRAG-R does not differentiate sexual offenses from nonsexual offenses. He finally claimed that his ASPD diagnosis was insufficient to prove lack of control for due process purposes.

¶9 Division Two of the Court of Appeals affirmed the trial court. In re Det. of Belcher , 196 Wash. App. 592, 385 P.3d 174 (2016). The court noted that Belcher's argument appeared to center on parallels between the commitment of juvenile offenders and a series of United States Supreme Court cases addressing "how juvenile sentences may violate the Eighth Amendment's ban on cruel and unusual punishment." Id. at 607, 385 P.3d 174 ; U.S. CONST. amend. VIII. However, the court distinguished those cases because SVP commitment is a civil proceeding distinct from criminal adjudication. Id. at 606, 385 P.3d 174. Further, additional procedures ensure commitment "only last [s] as long as the SVP continues to meet the criteria for commitment." Id. Finally, it noted juvenile adjudications have already been upheld as proper predicate offenses for commitment under the SVP statute. Id. at 607, 385 P.3d 174 (citing In re Det. of Anderson, 185 Wash.2d 79, 89, 368 P.3d 162 (2016) ).

¶10 The court also analyzed Belcher's likelihood to reoffend and his mental abnormality but opined they were "sufficiency of the evidence" arguments, not constitutional ones.

Id. at 608, 610, 385 P.3d 174. It found that Judd "did not make his assessment of Belcher solely on [the VRAG-R]." Id. at 609, 385 P.3d 174. Because the trial court reviewed Judd's entire testimony, including his clinical observations of Belcher and the PCL-R analysis, the Court of Appeals held that "a rational trier of fact could find that Belcher continued to meet the definition of an SVP beyond a reasonable doubt." Id. at 610, 385 P.3d 174. Similarly, it noted that ASPD was a legitimate diagnosis. Id. at 611, 385 P.3d 174. Because the trial court coupled this diagnosis with evidence of Belcher's prior sexually violent behavior and serious lack of control, the Court of Appeals found that there was sufficient evidence to determine that Belcher had a mental abnormality under the statute. Id.

¶11 Belcher petitioned this court for review, which was granted. In re Det. of Belcher , 187 Wash.2d 1031, 391 P.3d 445 (2017).

ISSUES

¶12 1. Can a person be civilly committed as an SVP if his or her sexually violent crimes were committed solely when the person was a juvenile?

¶13 2. Can a diagnosis of ASPD constitute a mental abnormality for purposes of the SVP statute?

¶14 3. Can a finder of fact utilize an actuarial instrument, based on both sexual and nonsexual offenses, to assist in determining an SVP's likelihood of reoffense?

ANALYSIS

¶15 Commitment for any purpose is " ‘a significant deprivation of liberty that requires due process protection.’ " Foucha v. Louisiana , 504 U.S. 71, 80, 112 S.Ct. 1780, 118 L.Ed. 2d 437 (1992) (quoting Jones v. United States , 463 U.S. 354, 361, 103 S.Ct. 3043, 77 L.Ed. 2d 694 (1983) ). Under Washington law, an SVP is "any person who has been convicted of or charged with a crime of sexual violence and who suffers from a mental abnormality or personality...