In Re The Detention Of: Jack Leck Ii (Majority)
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2014 MAR -- 4
IN THE COURT OF APPEALS OF THE STATE ?
AM 9: 19
F WASHINGTON
DIVISION II
Gtr UTY
In
re
the Detention
No. 42573 -4 -II
of:
JACK LECK II,
Petitioner.
UNPUBLISHED OPINION
PENOYAR, J. P. T.
violent predator (
SVP).
1—
Jack Leek II appeals a jury verdict determining him to be a sexually
Leek contends that his right to due process was violated when ( 1) the
jury was instructed on an alternative means of proving his SVP status that was not alleged in the
petition, (
2) he was not allowed to appear in person at a reconsideration hearing addressing the
recent overt act requirement, and ( 3) the State' s expert witness was allowed to refer to hearsay in
expressing his opinion about Leek' s SVP status. Leek also argues that the State had no authority
to file an SVP petition against him in 2008 under the law, then in effect and that applying the
2009 law retroactively
violated
his
right
to due
process.
We hold that the State had authority to
file the petition under both versions of the law, as explained in In re Detention of Durbin, 160
Wn.
App.
414, 248 P. 3d 124,
review
denied, 172 Wn.2d 1007 ( 2011).
We hold further that the
jury instruction alleging that Leek suffered from a personality disorder did not constitute
manifest constitutional error enabling Leek to raise this issue for the first time on appeal, that the
trial court did not err by refusing to continue a reconsideration hearing addressing an issue of
law, and that the State' s expert appropriately referred to the evidence supporting his opinion.
We affirm Leek' s SVP commitment.
1 Judge Joel Penoyar is serving as a judge pro tempore of the Court of Appeals, Division II,
pursuant
to CAR 21(
c).
42573 -4 II
FACTS
FACTUAL BACKGROUND
I.
Leek was convicted in 1984 in Alaska of second degree sexual abuse of a minor and
second
degree
attempted sexual abuse of a minor.
71. 09 RCW, these two
chapter
released
on parole
for these
convictions amount
offenses
in
For purposes of Washington's SVP laws at
to " sexually
violent
2 Leek was
offenses. "
July 1996. After being in and out of confinement for
various parole violations, Leek was unconditionally released in September 2002.
In April 2003, Leek applied for a membership at the YMCA in Bremerton, Washington.
A YMCA employee, aware that Leek was a sex offender in Alaska, contacted Bremerton police.
Having been informed by Leek's family when Leek was released in 2002 that he might try to
enter the Bremerton YMCA, the police contacted the address Leek had left there; the address
was
for
a charitable
organization at which
Leek had begun volunteering
a week earlier.
The
police searched the organization's computer to which Leek had had access during that week,
discovering numerous images downloaded during that time of minors engaged in sexually
explicit conduct.
Leek was arrested and later convicted in Kitsap County Superior Court of 46
counts of possession of depictions of a minor engaged in sexually explicit conduct.
2 RCW 71. 09. 020( 17) defines " sexually violent offense."
3 Leek' s family lived in the Bremerton area at this time.
2
42573 -4 -II
PROCEDURAL BACKGROUND
I.
In April 2007, shortly before Leek completed serving his sentence for the Kitsap County
convictions, the State filed a petition in Thurston County alleging that Leek was an SVP.4 ' Leek
was transported first to the Thurston County jail and then, after a probable cause finding under
RCW 71. 09. 040, to the Special Commitment Center on McNeil Island to await his commitment
trial.
In May 2008, before Leek's trial, the Washington Supreme Court held that an SVP
petition was improperly filed in Thurston County where the alleged SVP had committed sexually
violent offenses outside Washington as well as offenses that were not sexually violent in Clark
In
County,
Washington.
view of
Martin, the State
the
request of
the
re
Det. of Martin, 163 Wn.2d 501, 504 -05, 182 P. 3d 951 ( 2008).
moved
Kitsap County
to dismiss the Thurston
County
petition against
Leek
In
and —at
filed a petition against Leek in Kitsap County in
prosecutof —
July 2008. 5
4 "`
Sexually violent predator' means 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."
LAWS OF 1995,
RCW 71. 09. 020( 18).
ch.
This definition has
remained unchanged since
1995. See
216, § 1.
5 RCW 71. 09. 030 governs filing SVP petitions. The 1995 version of the statute was in effect
when
the State filed the
petition against
Leek in Thurston
County.
The legislature amended this
version of the statute in 2008, but this amendment merely made one technical correction to the
statute
ch.
that
213, §
against
is immaterial to
12.
our analysis
here. See LAWS OF 1995,
ch.
216, § 3; LAWS OF 2008,
The 2008 version of the statute was in effect when the State refiled its petition
Leek in Kitsap County.
substantive amendments
The current version of the statute reflects the legislature' s
in 2009. See LAWS
OF
2009,
ch.
409, § 3.
42573 -4 -II
The Kitsap County petition was based on consulting psychologist Dale Arnold's 2006
evaluation of
petition,
Leek in
the State
which
alleged
Arnold diagnosed Leek
that Leek had
a mental
6
with pedophilia.
As grounds for filing_
the
namely,
abnormality —
but
pedophilia —
did not
allege any personality disorder.
Leek moved to dismiss the petition in December 2008 for lack of jurisdiction and
probable cause, arguing that he was unlawfully detained at the time the State filed the petition in
Kitsap County. Relying on In re Detention of Keeney, 141 Wn. App. 318, 330, 169 P. 3d 852
2007),
the trial court concluded that an unlawful detention under a criminal proceeding does not
divest the court of its power to process an SVP petition,*and so the court denied Leek's motion in
May 2009.
Then, in October 2010, the State moved for a ruling that, as a matter of law, Leek's 2003
convictions for possession of depictions of minors engaged in sexually explicit conduct qualified
as a recent overt act, which would relieve the State of its burden to prove a recent overt act at
trial.
Attached to the State' s motion was an update to Arnold's evaluation based on his personal
interview
a
with
Leck in September 2010. In the updated evaluation, Arnold diagnosed Leek with
personality disorder that
predisposed
him to
commit
criminal
sexual
acts.
At no point,
however, did the State amend the petition to include this personality disorder as grounds for the
petition.
6
Leek refused an interview with Arnold in 2005 for purposes of Arnold' s initial evaluation of
Leek; as a result, Arnold based his evaluation on a review of records alone.
4
42573 -4 -II
Treating the State' s recent -overt- act motion as one for partial summary judgment, the trial
court
State
denied the
moved
motion,
for
pointing to conflicting
At
reconsideration.
the
expert opinion on
reconsideration
Leek' s
mental condition.
hearing,
with
Leek
The
present
telephonically, the trial court vacated its previous ruling and granted the State' s motion, ruling
that Leek's 2003 conviction qualified as a recent overt act.
After Leek'
s
first trial
ended
in
a mistrial,
he
was retried.
At the end of that second trial,
the court instructed the jury as follows:
To establish that Jack Leek, II is a sexually violent predator, the State
must prove each of the following elements beyond a reasonable doubt:
1)
That Jack Leek, II has been convicted of a crime of sexual violence,
namely the Alaska offense of Sexual Abuse of a Minor in the Second Degree
and /or Attempted Sexual Abuse of a Minor in the Second Degree;
2) That Jack Leek, II suffers from a mental abnormality or personality
disorder which causes serious difficulty in controlling his sexually violent
behavior; and
3) That this mental abnormality or personality disorder makes Jack Leek,
II likely to engage in predatory acts of sexual violence if not confined to a secure
facility.
If you find from the evidence that each of these elements has been proved
beyond a reasonable doubt, then it"will be your duty to return a verdict that Jack
Leek, II is a sexually violent predator.
On the other hand, if, after weighing all of the evidence, you have a
reasonable doubt as to any one or more of these elements, then it will be your
duty to return a verdict that Jack Leek, II is not a sexually violent predator.
5
42573 -4 -II
Clerk' s Papers ( CP)
at
1580 (
emphasis
8
7
and "
abnormality"
Additional instructions defined both "
added).
personality disorder. "
mental
Leek did not object to any of these instructions.
After the jury returned a verdict finding that the State had proved beyond a reasonable
doubt that Leek was an SVP, the court ordered him committed to. the Special Commitment
Center. Leek appeals.
ANALYSIS
I.
AUTHORITY TO FILE THE PETITION
Leek first argues that the State did not have authority to file a petition against him under
the law in
effect
2009 —under
in 2008.
which
Leek further argues that retroactively applying the law as amended in
the State
would
have had authority to file the
would deny him due
petition —
process. But in a recent case with analogous facts, we held that the State had authority under the
2008 law to file the SVP
petition
in
question.
Durbin, 160 Wn.
App.
at
429.
We also held in
Durbin that applying the 2009 law retroactively, which the legislature had clearly intended, did
7 Instruction 6 read: - - - Mental abnormality"
means a congenital or acquired condition affecting the
emotional or volitional capacity which predisposes the person to commit criminal
sexual acts to a degree that makes the person a menace to the health and safety of
others.
Volitional capacity" means the power or capability to choose or decide.
CP at 1582.
8 Instruction 7 read:
Personality
disorder"
means an enduring pattern of inner experience and
behavior that deviates markedly from the expectations of the individual' s culture,
is pervasive and inflexible, has onset in adolescence or early adulthood, is stable
over time and leads to distress or impairment.
CP at 1583.
6
42573 -4 -II
not violate
due
160 Wn.
process.
App.
at
431.
Accordingly, the State was not precluded from
filing the petition against Leek under either version of the law.
INSTRUCTION ON UNCHARGED ALTERNATIVE
II.
Leek argues next that his statutory and due process right to notice was violated because
the trial court instructed the.jury on an alternative means ( personality disorder) not mentioned in
the
petition
by
not
alleging that Leek
was an
SVP.
challenging instruction 4, the " to
The State responds that Leek waived this argument
commit"
instruction,
at
trial.
Leek argues that he may
raise this issue for the first time on appeal under In re Personal Restraint ofBrockie, 178 Wn.2d
532, 309 P. 3d 498 ( 2013).
In Brockie, the Supreme Court explained that failing to properly notify a defendant of the
nature and cause of
at
the
accusation of a criminal charge
536 ( citing U. S. CONST.
amend
VI; WASH. CONST.
is
art.
a constitutional violation.
178 Wn.2d
I, § 22; State v. Kjorsvik, 117 Wn.2d
The Brockie court explained further that when a defendant claims
93, 97, 812 P. 2d 86 ( 1991)).
for the first time on appeal that the jury was instructed on an uncharged alternative means of
committing a crime, the reviewing court should apply the line of cases beginning with State v:
Severns, 13 Wn.2d 542, 125 P. 2d 659 ( 1942).
Brockie, 178 Wn.2d
at
537. This case law stands
for the proposition that it is error for a trial court to instruct the jury on an uncharged alternative
means in a criminal case and that, on appeal, it is the State' s burden to prove that the error was
harmless.
App.
Brockie, 178 Wn.2d at 536 ( citing Severns, 13 Wn.2d at 548; State v. Bray, 52 Wn.
30, 34 -35, 756 P. 2d 1332 ( 1988)).
The error of offering an uncharged means as a basis for
a criminal conviction is presumed prejudicial and is harmless only " if ` subsequent instructions
in
the
crime charged was
clearly
quoting Severns, 13 Wn.2d
and
at
specifically defined to the
549);
jury. "' Bray, 52 Wn. App. at 34 -35
see also State v. Doogan, 82 Wn. App. 185, 189, 917 P. 2d
7
42573 -4 -II
155 ( 1996) (
error of offering uncharged means as a basis for conviction is prejudicial if the jury
might have convicted the defendant under the uncharged alternative).
To commit a person as an SVP, the State must prove that he suffers from a mental
abnormality
or
personality disorder.
In re Det. of Post, 170 Wn.2d 302, 309 -10, 241 P. 3d 1234
M] ental abnormality' and ` personality disorder' are two
2010) ( citing RCW 71. 09. 020( 18)). "'[
distinct
establishing the
means of
mental
illness
element
in SVP
cases."
In re Det. of Halgren,
156 Wn.2d 795, 811, 132 P. 3d 714 ( 2006). Here, the State did not allege in the SVP petition that
Leek suffered from a personality disorder, but instruction 4 informed the jury that it could find
that Leek was an SVP if it found that he suffered from a mental abnormality or a personality
disorder.
While tacitly conceding that error occurred, the State argues that neither Brockie nor the
Severns line
of
cases
applies
As stated, those cases describe the rights of criminal
here.
defendants in criminal prosecutions. Brockie relied on the Sixth Amendment as well as article I,
section 22 and the Kjorsvik decision in stating that failing to properly notify a defendant of the
nature and cause of
at
536 -37.
The
the
accusation of a criminal charge
Sixth Amendment
and
article
I,
is
a constitutional violation.
section
22,
178 Wn.2d
expressly refer to criminal
prosecutions, and Kjorsvik stands for the proposition that all essential elements of a crime must
be included in
a
charging document. 117 Wn.2d at 97.
Washington courts have repeatedly held that SVP proceedings are civil and not criminal,
and they have added that the rights afforded to criminal defendants under the Sixth Amendment
and article I, section 22 do not attach to SVP petitioners. In re Det. of Strand, 167 Wn.2d 180,
191, 217 P. 3d 1159 ( 2009);
In re Det. of Ticeson, 159 Wn. App. 374, 377, 246 P. 3d 550 ( 2011),
abrogated on other grounds,
State
v.
Sublett, 176 Wn.2d 58, 292 P. 3d 715 ( 2012). Instead, SVP
8
42573 -4 -II
petitioners
must
rely
on
the guaranty
of "
fundamental fairness"
provided by the due process
clause. Strand, 167 Wn.2d at 191.
Consequently, to raise his claim of instructional error for the first time on appeal, Leek
must show that the error violated this due process guaranty of fundamental fairness and that he
was prejudiced as a result.
RAP 2. 5(
a)(
3); State v. Gordon, 172 Wn.2d 671, 676, 260 P. 3d 884
2011).
Due
particular
process
situation
quoting Mathews
is
a
flexible
Sherman
demands. "'
v.
concept,
v.
requiring "` such
procedural
protections
as the
State, 128 Wn.2d 164, 184, 905 P. 2d 355 ( 1995)
Eldrige, 424 U. S. 319, 334, 96 S. Ct. 893, 47 L. Ed. 2d 18 ( 1976)).
At its
core is the right to notice and the opportunity to be heard, but its minimum requirements depend
on what
is fair in
a particular. context.
2007); Sherman, 128 Wn.2d
at
184.
In re Det. of Stout, 159 Wn.2d 357, 370, 150 P. 3d 86
In determining what process, is due in a given context,
particularly where SVP proceedings are concerned, courts employ the Mathews test, which
balances: (
1) the
private
interest
affected, (
2) the risk of erroneous deprivation of that interest
through the procedures used and the probable value, if any, of additional procedural safeguards,
and (
3)
the governmental interest, including costs and administrative burdens of additional
procedures. Mathews, 424 U.S. at 335; Stout, 159 Wn.2d at 373.
As stated, Leek argues that the instruction informing the jury that it could find he was an
SVP based on the uncharged " personality disorder" alternative violated his due process right to
notice.
In applying the Mathews test to this claim, we recognize that Leek has a significant
interest in his
physical
liberty. As to the second factor, we do not see that trying Leek on the
personality disorder alternative risked an erroneous deprivation of that liberty.
9
42573 -4 -II
We
are
guided
to this
in
conclusion,
part,
by
CR 15( b),
which provides
that "[
w]hen
issues not raised by the pleadings are tried by express or implied consent of the parties, they shall
be treated in
failure to
all
respects
formally
CR 15( b); Green
as
the
amend
v.
if they had been
pleadings "
Hooper, 149 Wn.
in the
raised
pleadings."
The rule adds that the
does not affect the result of the trial of these issues."
App. 627,
636, 205 P. 3d 134 ( 2009).
Under CR 15( b),
w]here evidence raising issues beyond the scope of the pleadings is admitted without objection,
the
pleadings
be deemed
will
amended
to
conform
to the
proof."
Reichelt v. Johns- Manville
Corp., 107 Wn.2d 761, 766 -67, 733 P. 2d 530 ( 1987).
The civil rules " govern the procedure in the superior court in all suits of a civil nature,"
with
the
exceptions set out
597 ( 2002); In
that "[
rules
re
Det. of
in CR 81.
Cherry,
CR l; In re Det. of Williams, 147 Wn.2d 476, 488, 55 P. 3d
166 Wn.
App.
70, 74, 271 P. 3d 259 ( 2011).
CR 81( a) states
e] xcept where inconsistent with rules or statutes applicable to special proceedings, these
shall
govern
proceedings within
all
civil
Proceedings under chapter 71. 09 RCW are special
proceedings."
the meaning
of
CR 81.
Cherry, 166 Wn. App. at 74 ( citing In re Det. of
Mathers, 100 Wn. App. 336, 340, 998 P. 2d 336 ( 2000)).
RCW 71. 09. 030 governs the information that must be contained in an SVP petition, but
there is no statute in chapter 71. 09 RCW that discusses the amendment of such petitions.
Consequently, our review of whether Leck consented to and thereby had notice of his trial on an
uncharged alternative is governed by CR 15. See In re Det. ofMcLaughlin, 100 Wn.2d 832, 849,
676 P. 2d 444 ( 1984) ( applying CR 15 to
involuntary
commitment
proceeding).
In determining
whether the parties consented to the trial of an unpleaded issue, we consider the record as a
whole.
Mukilteo Ret. Apartments, LLC
v.
Mukilteo Investors L.P.,
P. 3d 814 ( 2013).
10
176 Wn. App. 244, 257, 310
42573 -4 -II
During closing argument in Leek' s first trial, the State informed the jury that it had to
find that Leek suffered from a mental abnormality or a personality disorder to determine that he
SVP.
was an
the
diagnosis that'
other
Report
The State asserted that Leek suffered from a mental abnormality and added that
s not
in dispute in this
Proceedings ( RP) ( Feb. 28, 2011)
of
at
case
is
1232.
antisocial
personality disorder."
2/ 28/ 11
The defense conceded that the evidence
showed that Leek `,` ay have an antisocial personality disorder" and asserted that the " big issue"
m
was whether Leek suffers from a mental abnormality or personality disorder. RP ( Feb. 28, 2011)
at 1253.
During Leek' s second trial, the State sought to allow its expert, Dale Arnold, to refer to
information regarding Leek' s molestation of his sister and her daughter to support the diagnosis
of antisocial
personality disorder
and
The defense responded that there was no
pedophilia.
disagreement about the personality disorder diagnosis, since both Arnold and Richard Wollert,
the
defense
expert,
agreed
counsel referred to the
learn that he has
that Leek
jury in
an antisocial
suffers
from
antisocial
personality disorder.
adding that "[ t] he diagnosis has been
personality disorder."
RP (
Aug.
made....
1, 2011)
at
Defense
They' re going to
161.
After the trial
court observed that both experts had clearly concluded that Leek has an antisocial personality
disorder, it limited Arnold' s testimony about his sister' s allegations.
During his testimony, the State questioned Arnold about the " mental abnormalities and
personality disorders"
part of
the
SVP definition. RP ( Aug. 8, 2011)
at
221.
Arnold responded
that Leek suffers from the mental disorders of pedophilia and antisocial personality disorder,
with
both
attorney
conditions
asked
about
supporting his
commitment
as
an
SVP.
the personality disorder diagnosis,
and
On cross examination, Leek' s
Arnold
replied, "[
W] hen I say
antisocial personality disorder and pedophilia, that' s the mental abnormality and the personality
11
42573 -4 -II
disorder that drive the behavior."
RP (
Aug. 8,
2011)
at
374.
Defense counsel then asked
whether a personality disorder would compel a person to commit a crime.
Wollert testified for the defense that the fact that Leek suffers from antisocial personality
disorder does not mean that he has a mental abnormality.
During
closing
the State
argument,
asserted
that the diagnosis that " everybody agrees
with" is antisocial personality disorder. RP ( Aug. 15, 2011) at 1097. Defense counsel responded
that while Leek might have antisocial personality disorder, he was not incapable of making
choices about whether
to
commit additional crimes.
On rebuttal, the State again explained that
the case was about whether Leek has a mental abnormality or personality disorder that causes
him serious difficulty in controlling his sexually violent behavior.
There
were
no
objections
to the
testimony
or
arguments
cited
above.
Leek clearly
received notice of the State' s intent to allege that he suffered from a mental abnormality or a
personality disorder; indeed, he conceded the latter allegation in an attempt to limit unfavorable
testimony.
As a result, the State' s failure to formally amend its petition to include the
personality disorder
alternative
did
not risk
erroneous
an
deprivation
of
Leek' s
liberty.
The
pleadings were deemed amended when Leek defended against the allegation that he suffers from
a personality disorder without objection. There would be no value in retrying the case following
a
formal
amendment of
the
petition.
The second Mathews factor clearly weighs in the State' s
favor.
The third Mathews factor also favors the State, which has a substantial interest in
protecting the cormnunity from
sexual predators.
It would be costly and burdensome, as well as
meaningless, to give Leek a third opportunity to raise the same defense he used in the prior two
trials.
Under the due
process
clause,
notice
must
12
be "
reasonably calculated, under all the
42573 -4 -II
circumstances, to apprise interested parties of the pendency of the action and afford them an
opportunity to
present
their
objections."
Mullane
306, 314, 70 S. Ct. 652, 94 L. Ed. 865 ( 1950).
case,
we
see
instructional
Ill.
no
error
due
process
further.
violation.
v.
Cent. Hanover Bank & Trust Co., 339 U. S.
The purpose of notice having been served in this
Accordingly, we decline to address Leek' s claim of
9
RECENT OVERT ACT RECONSIDERATION HEARING
Leek argues here that the trial court violated his due process right to be present when it
denied his motion to continue the recent overt act reconsideration hearing so that he could attend
the hearing in person.
Due process requires that, before indefinitely committing a person to a secure facility, a
jury must find beyond a reasonable doubt that he is both mentally ill and presently dangerous. In
re
Det. of Marshall, 156 Wn.2d 150,
157,
125 P. 3d. 111 ( 2005).
When a person is not
incarcerated at the time the State files the commitment petition, due process requires the State to
prove present dangerousness with evidence of a recent overt act. In re Det. ofLewis, 163 Wn.2d
1883 193 -94, 177 P. 3d 708 ( 2008). A recent overt act is " any act, threat, or combination thereof
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
10
act."
RCW 71. 09. 020( 12).
The due process requirement of proving dangerousness may be satisfied by the person' s
prior conviction when the petition is filed while the offender is incarcerated for a prior act that
9
Leek' s claim that his statutory right to notice was violated is also waived under RAP 2. 5( a).
io The minor changes made to this definition after the State filed its petition against Leek do not
affect our analysis here. See former RCW 71. 09. 020( 10) ( 2006); Durbin, 160 Wn. App. at 426.
13
42573 -4 II
would itself qualify as a recent overt act. In re Det. ofHendrickson, 140 Wn.2d 686, 695, 2 P. 3d
Whether the act resulting in a conviction underlying the alleged SVP' s confinement
473 ( 2000).
is a recent overt act is a question of law for the trial court, not a question of fact to be decided by
the jury. Marshall, 156 Wn.2d at 158.
The trial court initially denied the State' s motion to treat Leek' s 2003 convictions for
possession of child pornography, for which he was confined when the SVP petition was filed, as
a recent overt act as a matter of law. When the State moved for reconsideration, the court held a
hearing
at which
Leck
was present
telephonically.
Defense counsel moved for a continuance
because Leck wanted to attend the hearing in person, but the trial court denied that motion after
explaining that its decision would be based on the existing record and not additional testimony.
The court added that if Leck wanted to submit further information, it would consider that request
at the end of argument.
The State. argues that the trial court did not err by denying Leek' s motion to continue a
hearing
at which
purely legal issues
were considered.
See State v. Eller, 84 Wn.2d 90, 95, 524
whether to grant continuance is within trial court' s discretion; denial is
P. 2d 242 ( 1974) (
disturbed only if accused has been prejudiced and /or result likely would have differed had
continuance
been
granted).
A defendant has the right to be present at proceedings where his
presence has a reasonably substantial relationship to the fullness of his opportunity to defend
against
the
charge.
In
re
Det. of Morgan, 161 Wn.
denied, 177 Wn.2d 1001 ( 2013).
discussion
of
purely legal
App. 66,
74, 253 P. 3d 394 ( 2011),
review
A defendant does not have a right to be present during a
matters, or where
his
presence would
App. at 74
14
be
useless.
Morgan, 161 Wn.
42573 -4 -II
The trial court must determine whether an individual is incarcerated for an act that
qualifies
as
a
recent
overt
act.
Marshall,
156 Wn.2d
at
158.
When the act resulting in
confinement has not caused harm of a sexually violent nature, an adjudication of the recent overt
act question requires
McNutt, 124 Wn.
circumstances
of
both
App.
the
factual
a
and
legal
inquiry. Marshall, 156 Wn.2d at 158; State v.
344, 350, 101 P. 3d 422 ( 2004).
alleged
SVP'
history
s
and
mental
The factual inquiry determines the
condition,
and the legal inquiry
determines whether, an objective person knowing those factual circumstances would reasonably
apprehend that the act resulting in his current confinement would cause harm of a sexually
violent nature.
Marshall, 156 Wn.2d
at
158.
The court' s role under the factual inquiry prong is
not that of a fact finder; the court need only review facts already established, including those
resulting in incarceration.
established
in the
Wn.
116, 125, 225 P. 3d 1028 ( 2010).
App.
record of
the
conviction
In re Det. of Brown, 154
The original criminal proceeding provides an
individual with an opportunity to contest the factual allegations supporting the conviction, and
the recent overt act inquiry is not meant to provide a second opportunity to litigate those facts.
Brown, 154 Wn. App. at 125.
The trial court noted here that a motion for reconsideration is generally decided on the
basis of the motion submitted. The court requested argument, however, because it had questions
about
part test
how to apply the two -
outlined
in Marshall to the
record
before it.
Following
argument, the court noted that it was relying only on uncontroverted facts in making its ruling.
The trial court concluded that based on the record in the case and the material filed in support of
the motion for reconsideration, the facts of Leck' s 2003 conviction constituted an act or acts that
could create a reasonable apprehension of harm of a sexually violent nature in the mind of an
objective person who knows of Leck' s history and mental condition.
15
42573 -4 -II
Leek now argues that the trial court relied on disputed facts in granting reconsideration of
its recent overt act ruling, including the fact that he had a mental condition that predisposed him
to commit acts of a sexually violent nature, that he was searching for pornography sites on a
state -owned computer in 2001, and that he applied for membership at the Bremerton YMCA to
meet children. Leek alleges further that when he made statements to the police at the time of his
2003 arrest to which the court' s findings referred ( i.e., that he " had a problem" and was " trying
so
hard to stay away from this "),
he did not mean he had a problem staying away from child
pornography. CP at 767.
Assuming
that the issues
were
as
Leek
now
frames them,"
he does not show that his
presence was required at the hearing or that the trial court erred by denying his motion to
continue
that
hearing.
additional evidence
during
the
hearing,
Leek had the opportunity to speak during the hearing and to offer
following
he
argument at
the
hearing. Although he consulted with his attorney
offered no additional materials.
The trial court did not err by denying the
motion for a continuance and by holding the reconsideration hearing while Leek was present
telephonically.
III.
BASIS FOR EXPERT OPINION
Finally, Leek claims that his due process right to cross examination was violated when
Arnold relayed a prejudicial out - - ourt statement from Leek' s sister without Leek having the
of c
opportunity to cross examine her about her motive and bias.
ii
It does not appear that the trial court considered anything but the undisputed facts before it:
Leek' s access to pornographic websites, his YMCA application, and his statements to the police
at his arrest.
16
42573 -4 -II
During Arnold' s testimony, and before he referred to facts from the record, the court
orally instructed the jury as follows:
Dr. Arnold is about to testify regarding information contained in file
records he reviewed about Mr. Leek, which is part of the basis for his opinion.
You may consider this testimony only in deciding what credibility and weight
You may not consider it as evidence
that the information relied upon by the witness is true or that the events described
should
be
given
to Dr. Arnold' s
opinion.
actually occurred.
RP ( Aug. 8, 2011) at 243.
Arnold then testified about Leek coming to Bremerton after his 2002 release and
accessing child pornography on the internet.
And after doing that for a couple days and saturating himself in the child
YMCA.
That' s really
important to me because that' s how he found his last victim was at the YMCA in
pornography, he then
went
to
get
a
membership
at
the
Anchorage.
RP ( Aug. 8, 2011) at 263.
Leek testified during his direct and redirect testimony that he applied to the Bremerton
YMCA
so
he
could use
its
shower
facilities.
On rebuttal, Arnold answered as follows when
asked about the significance of Leek' s application to the Bremerton YMCA:
I think it' s quite significant for a couple of reasons.
One reason is because it' s very clear that he had obtained victims for child
molestation in the past. at the YMCA.
And the other reason I think it' s particularly important, is because that' s
how he was really caught in 2003 is because his sister knew that he had this
pattern of contacting YMCAs, and she informed local law enforcement to watch
out for him.
RP (
Aug.
15, 2011)
at
1043.
Leek' s attorney made a hearsay objection, and the trial court
excused the jury so that it could hear argument on the objection. The State argued that the court
had given a limiting instruction about Arnold' s testimony and that he was entitled to rely on facts
in the record to support his opinion about the significance of Leek' s YMCA application. Leek' s
17
42573 -4 -II
attorney responded that the testimony was too prejudicial, but the court overruled the objection
because the fact at issue was part of the basis for Arnold' s expert opinion.
The trial court later gave the jury a written limiting instruction stating in part as follows:
When
Dr.
Arnold / r.
D
Wollert
testified,
I
informed
you
that
some
information was admitted as part of the basis for his opinions, but may not be
considered
for
You must not consider this testimony as proof that
by the witness is true. You may use this testimony
other purposes.
the information
relied upon
only for the purpose of deciding what credibility or weight to give the witness' s
opinion.
CP at 1579.
ER 703 permits an expert to base his opinion on facts that are not otherwise admissible if
they are of a type reasonably relied on by experts in the particular field. Marshall, 156 Wn.2d at
162. "
Thus, the rule allows expert opinion testimony based on hearsay data that would otherwise
be inadmissible in
evidence."
Marshall, 156 Wn.2d
at
162.
In addition, ER 705 grants the trial
court discretion to allow the expert to relate hearsay or otherwise inadmissible evidence to the
trier of fact to explain the reasons for his expert opinion, subject to appropriate limiting
instructions. _ Marshall, 156 Wn. 2d
EVIDENCE LAW
AND
at _16'
); 5B KARL B. TEGLAND, WASHINGTON PRACTICE:
PRACTICE §§ 705. 4, 705. 5 ( 5th ed. 2007).
In an SVP trial, experts may rely on psychological reports and the criminal history of an
SVP detainee in testifying.
1993).
In re Pers. Restraint of Young, 122 Wn.2d 1, 58, 857 P.2d 989
In referring to Leek' s sister' s statement, Arnold was drawing from information in the
2003 Kitsap County presentence report to which he had referred in evaluating Leek in 2006.
Arnold testified appropriately, and the trial court gave a limiting instruction to which the
defense did
not object.
constitutional
We reject Leek' s attempt to transform this evidentiary issue into one of
magnitude.
Furthermore, we observe that during the deposition played for the
18
42573 -4 -II
jury, Leek admitted to molesting his sister when she was a child, stated that she had wrongfully
accused him of molesting her children, and added that she was jealous of his relationship with
their father. This testimony provided ample basis for Leek to argue that his sister was biased and
had
a
motive
to
lie.
We see no error in the court' s ruling regarding the scope of Arnold' s
testimony.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with .RCW
2. 06. 040, it is so ordered.
We concur:
Bjo
en, J. "
M
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