STATE v. JAGGER, 58002-7-I (Wash.App. 7-30-2007)

No. 58002-7-I.The Court of Appeals of Washington, Division One.
July 30, 2007.

Appeal from a judgment of the Superior Court for Snohomish County, No. 04-2-12681-7, Gerald L. Knight, J., entered March 15, 2006.

Affirmed by unpublished opinion per Becker, J., concurred in by Agid and Ellington, JJ.

BECKER, J.

Mathew Jagger was incarcerated for third degree child rape when the State petitioned to commit him as a sexually violent predator. We conclude the trial court used the appropriate legal test when making a pretrial determination that the rape, viewed objectively, qualified as a recent overt act. We also reject Jagger’s argument that the State’s petition to have him committed was not authorized by statute. The commitment is affirmed.

FACTS
Mathew Jagger was twice found to have committed fourth degree assault with sexual motivation. The crimes occurred when he was 12 and 13, respectively. In 1999, when Jagger was 16, the State alleged that he forcibly rubbed the vagina of a 10 year old girl who had cerebral palsy. Jagger pleaded guilty to first degree child molestation, a sexually violent offense. RCW 71.09.020(15). He was released from confinement in March 2001.

Just under a year after his release, Jagger had sex with RP, a 14-year old girl. Jagger was 19 at the time. He pleaded guilty in June 2002 to one count of rape of a child in the third degree, which is not a sexually violent offense. The court sentenced him to 32 months in custody. Jagger was scheduled for release on October 25, 2004.

Clinical psychologist Shoba Sreenivasan, Ph.D., evaluated Jagger on behalf of the Department of Corrections to determine if he was a sexually violent predator. In a report dated June 27, 2004, the evaluator diagnosed Jagger with “multiple serious psychiatric conditions that have since childhood rendered him a sexually impulsive and emotionally impaired individual.”[1] She opined that Jagger was more likely than not to engage in sexually violent predatory behavior in a community setting, that release to a less restrictive setting was inappropriate, and that Jagger met the criteria of a sexually violent predator.

The sexually violent predator statute requires that a person in custody who may meet the criteria of a sexually violent predator will be referred with a current mental health evaluation to the prosecutor. RCW 71.09.025. If it appears to the prosecutor that the person may be a sexually violent predator, the prosecutor may, in some circumstances, file a sexually violent predator petition. RCW 71.09.030. A judge must then determine whether probable cause exists to believe the person is a sexually violent predator. RCW 71.09.040(1). If so, the judge must order him taken into custody and conduct an adversarial probable cause hearing. If the judge again finds probable cause, a full trial must be held. RCW 71.09.050(1). At the trial, the finder of fact will determine whether the person is a sexually violent predator beyond a reasonable doubt. RCW 71.09.060(1). If so, the person must be committed until he is no longer a sexually violent predator or conditional release to a less restrictive alternative is appropriate. RCW 71.09.060(1).

Before Jagger’s release date, the State petitioned to have him committed as a sexually violent predator. On October 21, 2004, the court found probable cause and set an adversarial probable cause hearing. A few days before the probable cause hearing took place in March 2005, Jagger moved to dismiss the petition on grounds that the State was required to allege a recent overt act and had failed to do so. The court denied the motion and found probable cause. On September 20, Jagger filed another motion to dismiss on the ground that he was not subject to commitment under the sexually violent predator statute. The trial court denied that motion in December 2005. In March 2006, a jury decided he was a sexually violent predator, and the court ordered him committed. Jagger appeals.

RECENT OVERT ACT
Jagger contends that his commitment violated due process because the trial court did not find by clear and convincing evidence that his 2002 conviction for third degree child rape was a recent overt act.

Due process requires that an individual “must be both mentally ill and presently dangerous before he or she may be indefinitely committed.” In re Det. of Marshall, 156 Wn.2d 150, 157, 125 P.3d 111 (2005). In some circumstances, such as when an individual is not incarcerated at the time the commitment petition is filed, due process requires the State to “prove dangerousness through evidence of a recent overt act.” In re Pers. Restraint of Young, 122 Wn.2d 1, 41, 857 P.2d 989 (1993). 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).

Due process does not require the State to prove a recent overt act when, on the day the petition is filed, the offender is incarcerated for an act that would itself qualify as a recent overt act. In re Henrickson, 140 Wn.2d 686, 695, 2 P.3d 473 (2000). Whether the act resulting in confinement is a recent overt act is a question for the court, not the jury. State v. McNutt, 124 Wn. App. 344, 350, 101 P.3d 422 (2004) Marshall, 156 Wn.2d at 158.

The details of the rape conviction alleged to have been a recent overt act in this case came from the State’s certification for determination of probable cause in support of the sexually violent predator petition and Dr. Sreenivasan’s sexually violent predator report. According to those documents, Jagger, 19, met three 14 year old girls on a bus in February 2002. The girls, apparently runaways, told him they were 16 and 18 years old, and he invited them to stay the night at his apartment. Over the course of two days, he kissed all of them and had sex with two of them, AB and RP. The eventual rape charge arose out of his sexual intercourse with RP. Although RP had originally told Jagger she was 18, she told him before they had sex that she was actually 14. When confronted by police, Jagger lied about how long he had known RP and about whether he had any physical contact with her. He also told police that, at the time they had sex, he was not aware that RP was 14. RP had several bite marks and deep bruises on her neck and chest.

The State charged Jagger with third degree child rape, a crime for which consent by the victim is not a defense. The crime is committed when a person “has sexual intercourse with another who is at least fourteen years old but less than sixteen years old and not married to the perpetrator and the perpetrator is at least forty-eight months older than the victim.” RCW 9A.44.079(1). It is an affirmative defense to this charge if the defendant can prove by a preponderance of the evidence that, at the time of the offense, he reasonably believed the alleged victim to be less than forty-eight months younger than him. RCW 9A.44.030
(2), (3)(c). Jagger pleaded guilty.

During the commitment proceeding, but before the commitment trial took place, the trial court entered a conclusion of law to the effect that Jagger’s conviction for third degree rape of a child, “under the specific facts of the case,”[2] was an act that would constitute a recent overt act pursuant to In re Henrickson, 140 Wn.2d 686, 689, 2 P.3d 473 (2000). Jagger contends this conclusion, when read in context with the trial court’s oral ruling, meant only that the trial court believed there was probable cause to believe his 2002 rape was a recent overt act, and that the court arrived at this determination merely by looking at the evidence prima facie. He contends that when deciding whether the act resulting in confinement was a recent overt act — for purposes of deciding whether the state must prove a recent overt act at the commitment trial — the court must do so by the standard of clear and convincing evidence.

We do not agree that the court’s conclusion was intended as a probable cause finding. Although the court’s initial oral ruling was ambiguous about whether it was a probable cause finding or a finding as a matter of law that the rape was a recent overt act,[3] the court later orally clarified the previous ruling: “I . . . determined as a matter of law that that conviction was a recent overt act”.[4] We also reject Jagger’s argument that due process required the trial court to use the clear and convincing evidence standard when making this determination McNutt and Marshall set forth and illustrate the analysis a trial court must engage in to decide whether the act resulting in confinement was a recent overt act. McNutt was a sexually violent offender who had been released into the community. He then entered an Alford[5] plea to a felony charge of communicating with a minor for immoral purposes. The communicating charge was not a sexually violent offense. While McNutt was serving his sentence for the communicating charge, the State petitioned to commit him as a sexually violent predator. The trial court ruled that the recent overt act question need not go to the jury because the communicating charge was itself a recent overt act. However, the trial court made no inquiry into the facts underlying the charge. We held the court erred to the extent it had ruled the communicating charge was a recent overt act per se. The recent overt act question requires both a factual and legal inquiry when the act resulting in confinement has not caused harm of a sexually violent nature:

The factual inquiry determines the factual circumstances of McNutt’s history and mental condition, and the legal inquiry determines whether an objective person knowing those factual circumstances would have a reasonable apprehension of harm of a sexually violent nature resulting from the act in question.

McNutt, 124 Wn. App. at 350. In our own inquiry into the facts alleged by the State which led to McNutt’s plea and conviction, we found that McNutt had a history of offering young boys money, beer, or cigarettes to perform sadistic acts upon him while he masturbated. The communicating charge was based on his inviting three young adult males and a 14 year old girl to his house, giving them beer, and telling them he wanted to be their sex slave. We held that only one conclusion was reasonable on this record: McNutt’s conduct at the time of the crime constituted a recent overt act. McNutt, 124 Wn. App. 350.

A year later, in Marshall, the Supreme Court approved of the analysis in McNutt. Marshall had a long string of sex offenses involving young girls. He was confined at the time of the petition for a third degree rape in which he had nonconsensual sex with a developmentally disabled woman who functioned at the level of a 10-to 12-year old. The trial court’s factual inquiry consisted of looking at “the nature of the rape, as alleged in the charging document and proved at the rape trial, and petitioner’s history of offenses and mental condition.” Marshall, 156 Wn.2d at 159. The trial court concluded that he was confined for an act that qualified as a recent overt act, and as a result the State did not have to prove a recent overt act to the jury in the commitment trial. Marshall argued on appeal that the jury should have decided whether his rape was a recent overt act. The Supreme Court disagreed and confirmed that McNutt‘s analysis was correct:

We agree with the analysis in State v. McNutt, 124 Wn. App. 344, 350, paragraph 12, 101 P.3d 422 (2004), that the inquiry whether an individual is incarcerated for an act that qualifies as a recent overt act is for the court, not a jury. The court must either determine from the materials relating to the individual’s conviction whether the individual is incarcerated for an act that actually caused harm of a sexually violent nature, or it must determine whether the individual was incarcerated for an act that qualifies as a recent overt act under a two step analysis described by the Court of Appeals in McNutt.

Marshall, 156 Wn.2d at 158.

McNutt and Marshall make clear that the trial court, in deciding whether the act resulting in confinement is a recent overt act, does not act as a fact finder. The court need only consult facts that are already established including those established in the record of the conviction for the act resulting in confinement. The underlying trial provides the offender with the opportunity to contest those factual allegations. Jagger waived this opportunity by pleading guilty.[6]

Jagger has cited no authority to the contrary. He relies on our pre-McNutt decision, In re Det. of Davis, 109 Wn. App. 734, 747, 37 P.3d 325 (2002). Davis was released to community placement after serving a sentence for a sexually violent offense. While on release, he had unauthorized contact with a 15-year-old boy and, in doing so, violated a term of his community placement prohibiting him from having contact with minors without approval. He was sent back to prison for the violation. While he was there, the State petitioned to have him committed as a sexually violent predator. The trial court accepted the State’s argument that Davis’s confinement on the violation was actually confinement on the sexually violent offense and thus did not require the State to prove a recent overt act at trial. Davis assigned error to that ruling in his appeal from a jury verdict that he was a sexually violent predator.

This court reversed. We concluded that incarceration for a community placement violation does not equate to incarceration for the underlying sexually violent offense. “This would severely undermine the due process protections that the Legislature included in chapter 71.09 RCW.” Davis, 109 Wn. App. at 746. Having concluded that Davis was not incarcerated for a sexually violent offense, we then had to decide whether the act that constituted the violation was itself a recent overt act, based on the record of the violation hearing. Because that record was developed for the limited purpose of establishing a community placement violation, it was insufficient:

There are no findings in the record before us indicating that Davis’ unauthorized contact with the 15-year-old boy “caused harm of a sexually violent nature or created a reasonable apprehension of such harm.” Because the State did not prove a recent overt act by Davis at the community placement violation hearing, Davis was not incarcerated for a recent overt act on the day the sexual predator petition was filed.

Davis, 109 Wn. App. at 747 (footnotes omitted).

Unlike in Davis, here the record of the act that led to Jagger’s confinement is a record of a criminal conviction, not merely a community placement violation, and it does establish the factual circumstances of the rape. The trial court could consider the circumstances of the rape together with other factual circumstances of Jagger’s history and mental condition in order to conclude that the rape qualified as a recent overt act even though it was not per se a sexually violent offense. Although the result in Davis was a remand for the State to prove a recent overt act, Davis does not hold that the same result will necessarily be obtained when the act resulting in confinement was proved as a criminal offense. In this respect, Davis is not inconsistent with McNutt an Marshall.

The State is ultimately obligated to prove dangerousness by clear and convincing evidence. Foucha v. Louisiana, 504 U.S. 71, 86, 112 S. Ct. 1780, 118 L. Ed. 2d 437 (1992). Jagger contends Foucha demands application of the clear and convincing evidence standard to the preliminary determination by the court of whether the State will be required to prove a recent overt act at trial. This is a misreading of Foucha, which addresses the burden of proof on the ultimate issue of dangerousness but does not address how a recent overt act is to be established. I Marshall, the dissent argued that under Foucha it is a jury question, to be decided by the jury as a matter of fact rather than by the court as a matter of law, whether or not the act resulting in confinement would itself qualify as a recent overt act. Marshall, 156 Wn.2d at 165
(Chambers, J., dissenting). The majority did not agree and instead adopted the McNutt analysis allowing the decision to be made by the court as a matter of law based on the factual record documenting the prior act and the mental condition of the detainee. Marshall, 156 Wn.2d at 158.

Following Marshall, we conclude the trial court used the correct test in ruling that the State did not have to prove a recent overt act at trial.

AUTHORITY TO PETITION
Jagger also contends the petition to commit him should have been dismissed because he does not fall within the statutorily defined group of offenders who are subject to commitment.

The statute sets forth the circumstances under which the State is authorized to file a petition alleging that a person is a sexually violent predator:

When it appears that: (1) A person who at any time previously has been convicted of a sexually violent offense is about to be released from total confinement on, before, or after July 1, 1990; (2) a person found to have committed a sexually violent offense as a juvenile is about to be released from total confinement on, before, or after July 1, 1990; (3) a person who has been charged with a sexually violent offense and who has been determined to be incompetent to stand trial is about to be released, or has been released on, before, or after July 1, 1990, pursuant to RCW 10.77.090(3); (4) a person who has been found not guilty by reason of insanity of a sexually violent offense is about to be released, or has been released on, before, or after July 1, 1990, pursuant to RCW 10.77.020(3), 10.77.110 (1) or (3), or 10.77.150; or (5) a person who at any time previously has been convicted of a sexually violent offense and has since been released from total confinement and has committed a recent overt act; and it appears that the person may be a sexually violent predator, the prosecuting attorney of the county where the person was convicted or charged or the attorney general if requested by the prosecuting attorney may file a petition alleging that the person is a “sexually violent predator” and stating sufficient facts to support such allegation.

RCW 71.09.030.

The State contends the petition was authorized by subsection (2) because it is undisputed that Jagger was “found to have committed a sexually violent offense as a juvenile” and he was “about to be released from total confinement”.

We review issues of statutory interpretation de novo. Western Telepage v. City of Tacoma, 140 Wn.2d 599, 607, 998 P.2d 884 (2000). When statutory language is unambiguous, we look only to that language to determine the legislative intent. State v. Delgado, 148 Wn.2d 723, 727, 63 P.3d 792 (2003). But it is also true that a statute must be read as a whole, giving effect to all of the language used. Wills v. Kirkpatrick, 56 Wn. App. 757, 761, 785 P.2d 834 (1990). And the significant liberty interest at stake requires that civil commitment statutes be strictly construed. Davis, 109 Wn. App. at 742.

Jagger acknowledges that subsection (2) of RCW 71.09.030 applies to persons who were found to have committed a sexually violent offense as a juvenile. But he says the confinement from which such a person is “about to be released” must be for a sexually violent offense, not for a crime such as the third degree rape that occasioned Jagger’s confinement.

The limitation suggested by Jagger is not found in subsection (2). He contends, however, that his suggested limitation is implied when RCW 71.09.030 is read as a whole, with all five subsections, and that it must be imposed upon the statute to make it internally harmonious.

It is true, as Jagger points out, that subsections (1) and (5) both modify the phrase “has been convicted” with the phrase “at any time previously”. The Legislature did not use the phrase “at any time previously” in subsection (2), the subsection that addresses persons “found to have committed a sexually violent offense as a juvenile”. But this difference is simply the result of subsection (2) having a slightly different syntax. Subsections (1) and (5) apply to persons who were “convicted” of a sexually violent offense “at any time previously”, while subsection (2) applies to persons “found to have committed” a sexually violent offense “as a juvenile”. Subsection (2), as Jagger acknowledges, is designed to ensure that juvenile offenses can be considered to the same extent as adult convictions. It would have been confusing and superfluous for the Legislature to describe juvenile offenses as having occurred “at any time previously” because it is already stated in subsection (2) that the person committed such offenses “as a juvenile”. The unambiguous phrasing of subsection (2) is effective on its own and fully harmonious with the other subsections. It is unusual for courts to “save” a statute by adding words to it. Jagger does not make a persuasive argument that RCW 71.09.030 creates a necessity for doing so.

Affirmed.

WE CONCUR: