In re Det. of Lewis

In the Matter of the Detention of DAVID JAMES LEWIS, Appellant.

No. 79377-2-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

February 16, 2021

ORDER GRANTING MOTION FOR RECONSIDERATION AND WITHDRAWING AND SUBSTITUTING OPINION

The State has filed a motion for reconsideration of the opinion filed on December 21, 2020. The respondent, David Lewis, has filed a response to the motion. The court has determined that the motion should be granted, the opinion should be withdrawn, and a substitute unpublished opinion filed; now, therefore, it is hereby

ORDERED that the motion for reconsideration is granted; and it is further

ORDERED that the opinion filed on December 21, 2020 is withdrawn; and it is further

ORDERED that a substitute unpublished opinion shall be filed.

/s/_________

/s/_________

/s/_________

UNPUBLISHED OPINION

APPELWICK, J. — Lewis, an adjudicated sexually violent predator, appeals from a verdict denying his conditional release. He argues the trial court erred in (1) granting the State judgment as a matter of law, (2) denying Lewis judgment as a matter of law, (3) excluding his housing declaration as hearsay, (4) changing the venue from Columbia County to Snohomish County, and (5) denying his motion to exclude the term "sexually violent predator" from use at trial. We reverse the CR 50 ruling, but affirm the jury verdict denying release.

FACTS

David Lewis was sent to prison in 1992 after he pleaded guilty to two counts of child molestation. In May 2005, Lewis was adjudicated as a "sexually violent predator" (SVP) and involuntarily committed to the special commitment center. He has remained in an institution from that time forward.

Involuntarily committed SVPs may petition for release from commitment. RCW 71.09.090. Lewis petitioned for conditional release to a less restrictive alternative (LRA). RCW 71.09.090(2). An LRA is a "court-ordered treatment in a setting lessrestrictive than total confinement which satisfies the conditions set forth in RCW 71.09.092." RCW 71.09.020(6). Those conditions include a specific treatment plan and a housing provider. RCW 71.09.092(1)-(5).

In January 2018, a show cause hearing was scheduled in Columbia County to consider Lewis's LRA plan. In March 2018 the court issued an order on show cause hearing¹ ordering a trial on the issue of Lewis's conditional LRA and a discovery order setting a conditional release trial date.

In July 2018, the State sought a change of venue to Snohomish County. Lewis objected. The court granted the motion and transferred venue to Snohomish County. Lewis filed a notice for discretionary review in the Court of Appeals. Lewis's motion for discretionary review was denied, finding the issue moot.

The case went to trial in Snohomish County Superior Court in October 2018. Evidence regarding Lewis's proposed housing was admitted without objection. A mistrial was declared due to juror misconduct.

Before the second trial, the parties agreed to retain prior rulings on motions in limine. This included a denial of Lewis's motion to exclude the term "sexually violent predator" on the basis that it is a statutorily created legal term.

In December 2018, the second trial began. The State moved to exclude portions of the LRA proposed by Lewis. It objected to the admission of housing provider Theodora Wright's declaration and any related testimony on hearsaygrounds. Lewis's attorney argued for admissibility of the declaration on several grounds. The trial court ruled that the declaration and other testimony were inadmissible hearsay. It redacted the portions of the social worker's release plan declaration that were related to housing and excluded the housing provider's declaration. Because neither party called the housing provider as a witness, the trial court found that there was no direct evidence regarding the housing provider's available apartment or agreement to comply with statutory requirements.

At the conclusion of the evidentiary phase, both parties sought judgment as a matter of law. The State argued it was entitled to judgment as a matter of law under RCW 71.09.094(1), since Lewis had failed to establish his plan met statutory housing requirements. Lewis argued he was entitled to judgment as a matter of law under CR 50, as the State's failure to introduce the housing component of his plan made it impossible for the State to meet its evidentiary burden.

After the jury had returned a verdict in the State's favor, the trial court granted the State's motion and denied Lewis's motion. The trial court opined that although the issue might be moot, guidance from this court would be useful as "the law remains unclear."

Lewis timely appeals.

DISCUSSION

I. Motions for Judgment as a Matter of Law

CR 50(a)(1) authorizes a court to grant judgment as a matter of law where there is no legally sufficient evidentiary basis for a jury to find in favor of thenonmoving party. "Granting a motion for judgment as a matter of law is appropriate when, viewing the evidence most favorable to the nonmoving party, the court can say, as a matter of law, there is no substantial evidence or reasonable inference to sustain a verdict for the nonmoving party." Sing v. John L. Scott, Inc., 134 Wn. 2d 24, 29, 948 P.2d 816 (1997). We review a motion for judgment as a matter of law de novo. Lodis v. Corbis Holdings, Inc., 192 Wn. App. 30, 62, 366 P.3d 1246 (2015).

A. The State's Motion

After portions of the proposed LRA plan Lewis submitted were stricken pretrial as hearsay, neither party called the housing provider as a witness. At the conclusion of the second trial, the State moved for judgment as a matter of law under RCW 71.09.094(1). The State argued Lewis had failed to establish that his plan satisfied the housing requirements in RCW 71.09.092(3). The trial court held, given the lack of sufficient evidentiary support, no reasonable jury could find the statutory condition had been met. As a result, the court found that "a strict reading of the statute requires judgment as a matter of law in the state's favor."

The order was granted after the jury returned a verdict denying conditional release. The trial court acknowledged the order might be moot, but noted in the order that guidance on this issue would be useful to practitioners. The State briefed the issue, arguing the order was correct. Prior to oral argument, the State withdrew its argument. The State's concession is well taken.

RCW 71.09.094(1) provides that upon the conclusion of the evidence in a hearing² held pursuant to RCW 71.09.090, "if the court finds that there is no legally sufficient evidentiary basis for a reasonable jury to find that the conditions set forth in RCW 71.09.092 have been met, the court shall grant a motion by the State for a judgment as a matter of law." At a conditional release trial, the State has the burden to prove beyond a reasonable doubt that conditional release to any proposed less restrictive alternative either: (i) is not in the best interest of the committed person; or (ii) does not include conditions that would adequately protect the community. RCW 71.09.090(3)(d). The State may not carry its burden by relying on the lack of evidence from the petitioner. In allowing the State to do so here the trial court effectively shifted the burden of proof. The motion was improperly granted.

We accordingly reverse the trial court's grant of the State's motion for judgment as a matter of law.

B. Lewis's Motion

Lewis argues he was entitled to judgment as a matter of law under CR 50 because the State failed to introduce the housing component of his plan. He contends that once his plan was deemed sufficient at a show cause hearing, the State was obligated to admit the entire plan. He argues, failing to do so made itimpossible for the State to prove beyond a reasonable doubt his proposed LRA was statutorily insufficient.

The language of RCW 71.09.094(1) and RCW 71.09.092 does not expressly provide that the State must introduce the plan. Further, the jury is not specifically asked whether the plan satisfies 71.09.092. Rather, it is instructed under RCW 71.09.094(2) which provides,

Whenever the issue of conditional release to a less restrictive alternative is submitted to the jury, the court shall instruct the jury to return a verdict in substantially the following form: Has the state proved beyond a reasonable doubt that either: (a) The proposed less restrictive alternative is not in the best interests of respondent; or (b) does not include conditions that would adequately protect the community? Answer: Yes or No.

To the extent the plan factors into the answer to these questions, the expert witnesses are free to offer opinions relative to that purpose. See ER 702, 703; In re Det. of P.K., 189 Wn. App. 317, 324-35, 358 P.3d 411 (2015) (holding the trial court properly admitted expert witness testimony relying upon inadmissible records as the basis of her opinion that his LRA should be revoked). Here, the majority of the LRA was entered into evidence. And, the State produced witnesses, such as Dr. Amy Phenix, who opined on whether the plan met the statutory requirements. So, it was possible for a jury to find the State met its burden without looking at the declaration.

And, the State did not argue before the jury at closing that Lewis's housing plan was insufficient. Instead, the State relied on evidence "indicative of [Lewis's] absolute lack of the ability to be transparent," rendering him more likely to fail to adhere to treatment in the community. Viewed in the light most favorable to theState, there was sufficient evidence to sustain a verdict that the plan was not in Lewis's interest or was insufficient to protect the public.

We affirm the trial court's denial of Lewis's motion for judgment as a matter of law.

II. Exclusion of Portion of LRA on Hearsay Grounds

The declaration of Lewis's housing provider as well as related testimony referencing housing were excluded as inadmissible hearsay. The...