IN RE DETENTION OF CALDERWOOD, 53456-4-I (Wash.App. 1-18-2005)

No. 53456-4-IThe Court of Appeals of Washington, Division One.
Filed: January 18, 2005 UNPUBLISHED OPINION

Appeal from Superior Court of Snohomish County. Docket No. 01-2-03103-0. Judgment or order under review. Date filed: 11/13/2003. Judge signing: Hon. Larry E McKeeman.

Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.

Christopher Gibson, Attorney at Law, 1908 E Madison St, Seattle, WA 98122

Robert Arthur III Weppner, Law Office of Robert A Weppner, 1 SW Columbia St Ste 1850, Portland, OR 97258-2040.

Counsel for Respondent(s), Malcolm Ross, Attorney General of Washington, 900 4th Ave Ste 2000, Seattle, WA 98164-1012.

PER CURIAM.

Under chapter 71.09 RCW, the State may seek to have a sexually violent predator involuntarily civilly committed. If the State files the commitment petition while the offender `is incarcerated for a sexually violent offense, or for an act that itself would have constituted a recent overt act, due process does not require the State to prove a further overt act occurred between arrest and release from incarceration.’ In re Detention of Henrickson, 140 Wn.2d 686, 697, 2 P.3d 473 (2000). We affirm the trial court’s determination that the State was not required to prove a recent overt act because the appellant was incarcerated for a crime that would have constituted a recent act at the time it was committed when the State filed its petition.

FACTS
In March 1999, James S. Calderwood pleaded guilty to third degree child molestation and the trial court sentenced him within the standard range. While Calderwood was incarcerated for that offense, the State filed a petition under chapter 71.09 RCW to have Calderwood involuntarily civilly committed as a sexually violent predator (SVP). In its amended petition, the State alleged that Calderwood’s 1999 conviction for third degree child molestation would have qualified as a recent overt act when it was committed and therefore it did not need to prove a recent overt act under the SVP statutes. Before trial, the State moved for a determination that the third degree child molestation conviction would have been a recent overt act at the time it was committed. The trial court granted the State’s motion, and the case proceeded to trial before a jury. The jury found Calderwood to be a SVP, and the trial court entered an order civilly committing him. Calderwood appeals.

ANALYSIS
Under chapter 71.09 RCW, the State may seek to have an SVP involuntarily civilly committed. 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 disorder which makes the person likely to engage in predatory acts of sexual violence if not confined in a secure facility.’ RCW 71.09.020(16). To satisfy due process, the State must show that the offender has a current mental illness and is presently dangerous. In re Detention of Albrecht, 147 Wn.2d 1, 7-8, 51 P.3d 73 (2002). If the individual is not incarcerated at the time the State files the petition, the State must prove that the individual committed a recent overt act. If the State files the petition while the offender `is incarcerated for a sexually violent offense, or for an act that itself would have constituted a recent overt act, due process does not require the State to prove a further overt act occurred between arrest and release from incarceration.’ Henrickson, 140 Wn.2d at 697. A recent overt act is `any act or threat that has either caused harm of a sexually violent nature or creates a reasonable apprehension of such harm in the mind of an objective person who knows of the history and mental condition of the person engaging in the act.’ RCW 71.09.020(10). Here, Calderwood was incarcerated at the time the State filed the petition. The issue, therefore, is whether Calderwood’s conviction for third degree child molestation, for which he was incarcerated when the State filed the SVP petition, would have constituted a recent overt act at the time it was committed.

As an initial matter, Calderwood argues that the trial court invaded the province of the jury when it determined that his conviction for third degree child molestation would have constituted a recent overt act at the time it was committed. As a mixed question of law and fact, this issue was properly decided by the trial court. See State v. McNutt, Wn. App., 101 P.3d 422
(2004).

Calderwood also argues that the trial court erred in determining that his third degree child molestation conviction would have constituted a recent overt act. The State, on the other hand, relies on language in Henrickson to argue that third degree child molestation would constitute a per se recent overt act. The State reasons that if communicating with a minor for immoral purposes qualifies as a recent overt act, third degree child molestation, a crime that actually involves sexual physical contact with a child, would certainly constitute a per se recent overt act. The trial court accepted this reasoning:

The offenses that were considered in In Re Henrickson included communication with a minor for immoral purposes. This case involves a plea of guilty to child molestation third degree. It would be difficult for this Court to imagine how our State Supreme Court would say that communicating with a minor a desire to engage in a sexual activity would be sufficient but engaging in sexual activity would not be.

If the communication with a minor for immoral purposes is sufficient to eliminate the need for the State to prove a recent overt act, then I believe that child molestation third degree would result in the same conclusion.

To the extent that the trial court found that third degree child molestation constituted a per se recent overt act, we disagree. Whether specific conduct would satisfy the overt act requirement is a factual and legal inquiry based on the circumstances of the particular case. McNutt, 101 P.3d at 424-25. While the trial court did not conduct a factual inquiry on the record, the only reasonable conclusion from the record before us is that Calderwood’s conviction for third degree child molestation satisfies the statutory definition of a recent overt act.

Calderwood pleaded guilty to third degree child molestation, admitting that he had sexual conduct with a 10-year-old boy, SB. At the time of the offense, Calderwood lived with Judy Davey and her husband, who he met through a citizen’s band radio group. SB’s parents were also part of the citizen’s band radio group. Calderwood did not disclose his status as a sex offender to the Daveys. Davey testified at the SVP commitment hearing that Calderwood purchased a video game system and taught children how to play the games in his room. Davey testified that SB spent the night at her house on two or three occasions and went to sleep in a sleeping bag on the couch. When Davey woke up, SB was in Calderwood’s room with the door closed. After Calderwood moved out of the Daveys’ home, SB alleged that Calderwood sexually molested him. Calderwood pleaded guilty to having sexual contact with SB.[1] The determinative issue is whether this conduct would cause an apprehension of sexually violent harm to an objective person who knows Calderwood’s history and mental condition.

Richard Packard, Ph.D. opined that Calderwood `suffers from a disorder that is described or referred to officially as paraphilia, sexually attracted to males, nonexclusive type, which means that he has recurring intense sexual urges or behaviors involving sexual activity with prepubescent children.’ Packard also testified that Calderwood has a personality disorder not otherwise specified, with antisocial, avoidant, and paranoid features. Based on this diagnosis, Packard opined that Calderwood had difficulty controlling his behavior and that he would likely commit further sexually violent acts if not confined.

This mental condition, taken with Calderwood’s criminal history would clearly create an apprehension of sexual violence in the mind of an objective person. Before the third degree child molestation conviction, Calderwood was convicted of first degree sodomy, communication with a minor for immoral purposes, second degree child molestation, and third degree rape of a child. All of these convictions involved young boys.

Calderwood’s first sexually related conviction occurred in 1979 and involved his wife’s son. When Calderwood married Mary Mathews in June 1976, Mathews had two sons from a previous relationship. Calderwood began molesting the older boy when he was eight years old. One day Mathews found Calderwood performing oral sex on her son in the living room. Calderwood moved out of the house for approximately three months, but the couple eventually reconciled. Despite his promises, Calderwood resumed sexually molesting the older son and began to molest the younger son. The younger son disclosed the abuse, and Calderwood was arrested. The State charged Calderwood with two counts of first degree sodomy for sexual assaults on the younger boy. Calderwood pleaded guilty to one count of first degree sodomy and the court sentenced him to an indeterminate term of up to ten years.

In 1985, Calderwood was charged with indecent liberties against WB. WB was the 13-year-old son of Calderwood’s girlfriend. Calderwood stated that WB’s mother overheard him telling WB about using a condom. Calderwood pleaded guilty to communicating with a minor for immoral purposes, and the court sentenced him to 150 days’ confinement with work release authorized.

In 1989, Calderwood worked at a bowling alley and met several young boys there. One boy, AH, ran away from home and Calderwood let AH stay with him. Calderwood admitted to being sexually aroused by AH, telling AH that he had an eight and a half inch penis, that AH saw him naked, and having AH sleep in bed with him. Calderwood also admitted to rolling AH onto Calderwood’s stomach and obtaining an erection. AH reported this conduct to authorities, and the State charged Calderwood with second degree child molestation. Calderwood pleaded guilty and the court sentenced him to 23 months’ imprisonment and one year of community placement.

Also in 1989, 14-year-old CC spent time at Calderwood’s home. Calderwood admits to performing oral sex on CC over a period of approximately one month. The State charged Calderwood with third degree rape of a child, and Calderwood pleaded guilty to that offense.

Given Calderwood’s mental condition and his history of sexual contact with young boys, an objective person would clearly find Calderwood’s conduct with SB sufficient to create an apprehension of sexually violent harm. Thus, under the circumstances, Calderwood’s conviction for third degree child molestation would have been a recent overt act at the time it was committed, and the trial court properly determined that the State did not need to prove a recent overt act at the SVP commitment hearing.

Affirmed.

COLEMAN, BECKER and COX, C.J., concur.