In Re The Detention Of Tremayne Francis (Majority)

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FILED r: APPEALS WIVIS! ON E Z8I4JU _ 3 M1 8: 35 STATE OF WASHINGTON IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II No. 43404 -1 - II In re the Detention of TREMAYNE FRANCIS, UNPUBLISHED OPINION Appellant. HUNT, P. J. Tremayne Francis appeals the trial court' s order of commitment to the Special Commitment Center in Steilacoom based on a jury' s finding him to be a sexually violent predator ( SVP), to present strikes" assertion a chapter 71. 09 RCW. He argues that the trial court violated his due process right complete defense when it excluded testimony about his awareness of the " two law, RCW 9.94A.570, because this testimony was relevant to disprove the State' s that he was likely to reoffend. The State counters that the trial court did not abuse its discretion in excluding the evidence because it was confusing and potentially prejudicial to the jury, and any error was harmless. We affirm. No. 43404 -1 - II FACTS I. SEXUAL OFFENSE HISTORY A. Initial Rape Convictions Around June 17, 1998, Tremayne Francis invited allegedly for martial arts SM1, a 17- year -old male, to his home, Francis made sexual advances against SM, threatened to kill lessons. SM if he did not comply, raped SM, and held SM captive for three hours before SM convinced Francis to release him. A few weeks later, another 17- year old male, JB, agreed to attend martial arts training Francis' at took JB home, s home, where he implied that JB Francis raped would return him under threat of to Francis " voluntarily force. or by When Francis force." Clerk' s Papers ( CP) at 3. Police arrested Francis the next day for raping JB and SM. At first Francis told the arresting officers that " he didn' t understand and [ expressed] disbelief about two counts of rape "; later Francis emphasis omitted). compulsion I stated, " can see one but not two," referencing the two rape charges. CP at 18 Francis later pled guilty to two counts of second degree rape by forcible for these In December 1998, Francis was sentenced to 119 months offenses. confinement on each count, to run concurrently, plus 36 months of community custody after his release from prison. B. Sexual Assaults in Prison According to Dr. Brian W. Judd, during Francis' s prison. confinement, Francis faced multiple non adjudicated allegations 1 It is appropriate to provide some of sexual misconduct or attempted coercion of sexual confidentiality in this case. Accordingly, it is hereby ordered that initials will be used in the body of the opinion to identify some parties involved. 2 No. 43404 -1 - 1I acts." CP at 21. Francis was initially infracted on March 31, 2000, and placed in administrative segregation for allegedly threatening another inmate with harm if he did not submit to Francis' s sexual demands. inmate to On. July 8, Francis allegedly intimidated, threatened and coerced another sexual perform Corrections ( DOC) and segregation acts Francis on or suffer physical injury. The Department of found Francis guilty of an infraction and sentenced him to 10 days of to loss of 30 days of good time On October 12, yet another inmate credit. reported that Francis had hit him, raped him, and threatened to kill him and his family. On February involuntary of sexually 24, 2003, protective Francis was again placed in administrative segregation for custody" " explicit material." CP for extorting other inmates for sexual contact and possession at 22 ( emphasis omitted). A subsequent DOC investigation found information that inmate Francis was involved in pressuring other inmates for sex. The investigation is Due to inmate Francis.' demonstrated on- going.... desire to continue identifying and pursuing potential sexual assault victims; he is not appropriate for any general population setting. CP at 22 ( emphasis omitted) ( internal citations omitted). On June 9, 2005, Francis told hiscelhnate, JG, that he had overheard a group of other inmates planning to assault JG, that he ( Francis) would protect JG, but that he ( Francis) would require " payment" for his protection services. CP at 3. JG initially refused. But after Francis threatened to assault JG, JG acquiesced, and Francis had sexual intercourse with JG over his protests. The next Elimination Act ... day, Francis Officers," again JG. raped When first confronted by " Prison Rape Francis denied any sexual contact with JG, insisting that JG was lying. CP at 20. Francis later changed his story and said that he had had consensual sex with JG. As a result of these allegations, DOC placed Francis in administrative segregation on June 11, 3 No. 43404 -1 - II 2005, and charged him charged Francis with with two infractions for sexually assaulting inmate JG. counts of second degree rape The State also for sexually assaulting JG. A jury acquitted Francis of the charges, and DOC dismissed the institutional infractions for lack of DOC placed Francis in administrative segregation on three additional separate evidence. occasions between October 2006 and March 2007, for allegedly having coerced other inmates into performing sexual acts. II. PROCEDURE A. Psychological and Sexually Violent Predator Evaluations; SVP Petition On August 31, 2007, Dr. Judd, evaluated Francis at the request of the Washington State Dr. Judd is familiar with chapter 71. 09 RCW and has experience in Joint Forensic Unit. evaluating, diagnosing, and treating sex offenders, including making evaluations for possible SVP Dr. Judd reviewed police reports, court documents, health information, civil commitment. psychological evaluations, and DOC documents; he also interviewed Francis for four hours on August 31, 2007. Dr. Judd meets the criteria Specified ( NOS) opined for and 2; narcissistic traits) " a that ( 1) " sexually to a reasonable violent predator; ( Personality degree of psychological certainty," Francis 2) he suffers from " Paraphilia, Not Otherwise Disorder, Not Otherwise Specified ( NOS) ( with antisocial and and ( 3) Francis' s paraphilia is a mental abnormality, as defined in RCW 71. 09. 020, and, in conjunction with his personality disorder, causes him serious difficulty in controlling his sexually violent behavior and makes him " likely to engage in predatory acts of 2CPat5. 4 No. 43404 -1 - II sexual violence if not confined in a secure CP facility." at 6. Dr. Judd further noted, " Francis has either declined sexual deviancy treatment or been deemed not amenable to sexual deviancy treatment due to extreme minimization or denial of his crimes." CP at 27 ( internal citations omitted). In making this determination, Dr. Judd conducted a risk assessment, using two actuarial instruments: or 6 CP on at the Static -99, 6. percent the Static -99 According likelihood and the Sex Offender Appraisal Guide ( SORAG). which corresponds to the Static -99, of reconviction for to a " a " moderately- high" to " Francis scored a 5 high" risk of reoffending. moderately- high" risk means that Francis had a 40 a new sexual offense over a 15 -year period. CP at 6. Francis' s score of 8 on the SORAG corresponds to a 39 percent probability of committing another sexual offense within 7 years and a rate of a 59 percent probability of reoffending within 10 years. Dr. Judd also reviewed Francis' s history for static and dynamic risk factors not included in the Static -99 age, general or SORAG. Dr. Judd opined that, when considering factors such as Francis' s criminality, lifestyle instability, and psychopathy, his likelihood to reoffend increased. Dr. Judd further concluded that there are no participated factors mitigating [ Francis' s] risk for recidivism. [ He] has not in offense specific treatment [ and] has attempted to deflect responsibility for his offending through malingered mental illness and amnesia. . Moreover, incarceration, repeated referral to administrative segregation, and /or the threat of a life sentence without the possibility of parole has not served as a protective or referral to mitigating factor. ... administrative segregation Moreover, as incarceration and repetitive has not mitigated [ Francis' s] sexually assaultive behaviors, there is no reason to believe that community supervision will appreciably mitigate [ Francis' s] risk of assaultive behavior. 5 No. 43404 -1 - II I believe Mr. Francis meets the criteria for a sexually violent predator as described in Chapter 71. 09. 020 of the Revised Code of Washington. I hold this opinion to a reasonable degree of psychological certainty. CP at 6 -7 ( some alterations in original). Based on Dr. Judd' s report and Francis' s medical history, the State petitioned the superior court to find that Francis is a sexually violent predator for purposes of chapter 71. 09 RCW and to commit him under RCW 71. 09. 060. The case was tried to a jury. B. SVP Trial 1. State' s Witness, Dr. Judd The State presented testimony from Dr. Judd, a licensed psychologist since 1991 and a f] ully of sex offender certified ... Proceedings ( VRP) at 88. treatment His " provider" " since 2001 or 2002." 1 Verbatim Report expertise has been examining and evaluating offenders, particularly sexual offenders, and looking at risk assessment and risk for recidivism, as well as providing treatment explained to the services jury that to 3" sexual offenders " he had court records, Hospital." 2 VRP at 1993, 1994." 1 VRP reviewed " victim and witness reports" actions; " trial transcripts from [ Francis' reports, since s] 1998 trial "; charging documents," and " and Francis' s" at 88. Dr. Judd relating to Francis' s DOC records, ... police mental health records from Western State 117, 118. Dr. Judd had also interviewed Francis in person, which interview included an evaluation of Francis' s mental health, history, and development, and an opportunity for Francis to have an open discussion about his offenses. 3 1 VRP at 74. 6 No. 43404 -1 - II Dr. Judd further in evaluating Francis, he had used two that explained actuarial instruments " generally accepted for use in the field of doing risk assessment of sex offenders, "4 . the " Static 99" ( in 251. use since 1993 He diagnosed Francis or with " 1994) and the " SORAG" ( in use since 1998). 2 VRP at consent)" Paraphilia, Not Otherwise Specified ( Non - and testified that this condition affected [ Francis' saying that s] ability to inhibit acting upon [ his] urges. And the basis for even after being incarcerated for [ SM] and for [ JB], that is the fact that we have a pattern of conduct over the years that indicated that he continued to act in at being placed in administrative segregation and other sanctioning while he was upon these urges which resulted continued sanctioning at this point incarcerated. 2 VRP at 242. Dr. Judd added that his opinion about Francis' s condition was also based on. other allegations that [ had infracted in 2003[, arisen and] in prison] allegations with regard that he was to Mr. Francis, . . . trying to extort the fact that he was sexual favors again." 2 VRP at 243. Dr. Judd menace agreed with the to commission of and similar instruments, Dr. Judd the State' safe[ ty] acts." VRP concluded s assertions that ( 1) Francis' 5 2 VRP at 252. 2 VRP at 250 -51. diagnosis make[ s] him a 2) " predispose[ s] _ Mr. Francis to the of others," and ( at . 243 -44. Based on his evaluation and the actuarial that " to a reasonable degree Francis would likely reoffend if not committed to a secure facility. 4 s" 5 of psychological certainty, " No. 43404 -1 - I1 2. Francis' s witnesses Francis' s uncle, Michael Joseph Wilson, testified that he would be a source of support for Francis in the community. Francis also presented testimony from Dr. Betty Richardson, a former psychotherapist for DOC who currently is in private practice, and who had previously interacted with Dr. Richardson testified that, during her employment through the McNeil Island Francis. Center, ( 1) Corrections evaluations[,] if issues], traumatic show had she met with Francis " weekly for therapy and psychological and [ would] work with his counselors for recommendations [ for mental health 6; needed, " over difficulty in memory for disturbing situations, and [ he was] very child like around authority or any inmate that would experiences ... authority 2) Francis had " and ( him, and very unpredictable." 4 VRP at 447. Pat Capozzola, the operations manager in food service at the Special Commitment Center, testified that Francis' s work habits were "[ v] ery good" and Francis psychology, mental also who disorder." his attitude was " testimony from Dr. Richard Wollert, a doctor in clinical presented that Francis' opined 5 VRP at 558. not positive rate [ of] error, chances are, VRP at that beat that it behavior is 546; ( 3) Francis' s " were " criminal s actions ( not a product of a the diagnosis made by Dr. Judd) generally has a " terrible" 5 VRP chance," identify due to behavior ... at 544 -45; ( 2) this diagnosis people ... will over - not behavior[,]. Dr. Wollert testified that ( 1) the diagnosis of "Paraphilia Not consent" Otherwise Specified, Non - reliability that " does 4 VRP at 456. okay." a mental illness creates a " false as having a mental illness when the at all; it' s due to criminal decisions," 5 does meet the threshold criterion because it' s criminal behavior, but it' s not recurrent, intense, sexually arousing fantasies or sexual urges that are of a 64 VRP at445. 8 No. 43404 -1 - II deviant, bizarre They' re] nature. [ disorder," 5 VRP at behavior. criminal 557 -58; ( 4) that Francis has not engaged in sexual assault while at the Special Commitment Center demonstrates that " he' circumstances They' re not a product of a mental that would believe that Francis had discourage [ such s conduct]," responsive to the contingencies ... or 5 VRP at 570; and ( 5) Dr. Wollert did not Dr. Wollert did not provide any diagnosis of alternate personalities. Francis' s conditions. Francis also testified in his own defense. 3. Sustained objection to " two strikes" law question During Francis' s testimony, his counsel asked: DEFENSE COUNSEL]: All Mr. Francis, right. are you aware of the Washington two strikes law for sex offenses? PROSECUTOR]: Objection, Your Honor. COURT]: 4 VRP at I' m going to sustain that objection. 501 -02. Francis' s counsel neither responded nor attempted to rephrase the question to elicit more precisely Francis' s understanding of the consequences if he were to commit additional sexual offenses. Instead, Francis' s counsel switched to another line of questioning. After cross- examination and re- direct examination, Francis concluded his testimony, and the trial court excused the jury. Before adjourning for the housekeeping matters ?" 4 VRP day, at the trial 510. court asked counsel if there were " Any other Francis' s counsel engaged in the following colloquy with the trial court: DEFENSE COUNSEL]: ... You sustained the State' s objection when I asked him about Washington two strikes law, and I don' t have a clue why, and I need to learn why. COURT]: Okay. My concern was that the jury might be confused and if [Francis] had pled guilty to two sex would start to speculate about why offenses, why he wouldn' t be potentially subject to life in prison without parole, 9 No: 43404 -1 - II and I didn' t want them speculating, and maybe improperly so, that the reason that Francis] went to trial on [ the matter of inmate JG] was because it would have been he' d be a persistent offender, and so I didn' t want to open up those particular Plus I don' t know there was no foundation laid suggesting that Mr. Francis has any kind of expertise or personal knowledge about Washington cans of worms. statutes and whether or not he' d be a persistent offender or could face life in prison DEFENSE COUNSEL]: I think COURT]: for a second offense. DEFENSE COUNSEL]: that was my question is if he was aware of those laws. And I had planned to ask him then if he believes he has one strike from the 1998 cases and that another sex offense would resulta conviction would result in his being life without possibility of parole. That' s where I had intended to go. 4 VRP at 512 -13. Counsel did not ask for permission to rephrase the question or to recall Francis to the stand to testify more generally about his knowledge of the consequences for committing additional offenses, aside from knowledge about the persistent offender law in particular. 4. Jury' s SVP finding The jury returned a verdict finding that the State had proved beyond a reasonable doubt that Francis was a sexually violent predator. That same day, the trial court ordered Francis committed to the Special Commitment Center in Steilacoom, Washington, to the custody of the Department of Social and Health Services, for control, care, and treatment until such time as his mental abnormality and /or personality disorder has so changed that [ he] is safe to be conditionally released to a less restrictive alternative or unconditionally discharged. CP at 102. Francis appeals. 10 No. 43404 -1 - I1 ANALYSIS Francis argues that when the trial court excluded testimony about his knowledge of Washington' to two s" 7 law8, strikes" present a complete defense.' it his due violated process right to "` a meaningful opportunity Br. of Appellant at 8 ( quoting State v. Wittenbarger, 124 Wn.2d 467, 474, 880 P.2d 517 ( 1994) and citing In re Welfare ofHansen, 24 Wn. App. 27, 36, 599 P. 2d 1304 ( 1979)); RCW 9. 94A. 570. He contends that this testimony was relevant to show that he was less likely to reoffend because he knew he faced mandatory life in prison for any future We note, however, that ( 1) the trial court excluded testimony only sexual offense conviction. about Francis' knowledge s of the " two strikes" law in particular; ( 2) defense counsel did not ask Francis whether he knew in general that he faced mandatory life in prison for any future sexual offense or any other question pertaining to Francis' s state of mind about punishment for future crimes and its opportunity to possible rule on deterrent effect; and ( 3) the admissibility of this latter the kind trial of court, therefore, knowledge. never had an See 4 VRP at 501 -02. We hold that the trial court acted within its discretion when it excluded Francis' s testimony about his knowledge of the " two strikes" law. I. STANDARD OF REVIEW To be only have ` admissible evidence must be relevant. ER 402. " To be relevant, evidence need any tendency to make the existence of any fact that is of consequence to the 7 Br. of Appellant at 7. 8 RCW 9. 94A. 570, the " two law discussed in In re Pers. Restraint of Carrier, 173 provides a mandatory sentence of life in prison without the possibility of parole for offenders who are convicted a second time of a crime listed Wn.2d 791, strikes" 797 -98, 272 P. 3d 209 ( 2012), in RCW 9. 94A.030( 37)( b). 11 No. 43404 -1 - II determination of the action more probable or less probable than it would be without the In evidence. "' We review a re trial Det. of Post, 170 Wn.2d 202, 311, 241 P. 3d 1234 ( 2010) ( court' s ruling on the admissibility for of evidence abuse of quoting ER 401). discretion. Post, 170 Wn.2d at 309 ( citing City ofAuburn v. Hedlund, 165 Wn.2d 645, 654, 201 P. 3d 315 ( 2009)). A trial court abuses its discretion if it relies on unsupported facts, applies the wrong legal standard, or adopts a position no reasonable person would take." In re Det. ofMcGary, 175 Wn. App. 328, 337, 306 P. 3d 1005 ( citing State v. Lord, 161 Wn.2d 276, 284, 165 P. 3d 1251 ( 2007)), review denied, 178 Wn.2d 1020 ( 2013). absent manifest abuse of discretion." Thus, we will not overturn such a discretionary ruling State v. Wilson, 60 Wn. App. 887, 890, 808 P. 2d 754 citing State v. Hughes, 106 Wn.2d 176, 201, 721 P. 2d 902 ( 1986)). 1991) ( At proved, an SVP determination trial, the fact finder beyond a reasonable doubt, that the must resolve one question: " respondent is an Has the State SVP ?" Post, 170 Wn.2d at 309 citing RCW 71. 09. 060( 1)). To answer this respondent ` has question[,] been the jury must determine three elements: ( 1) that the convicted of or charged with a crime of sexual violence,' ( 2) that the respondent ` suffers from a mental abnormality or personality disorder,' and ( 3) that such abnormality or disorder ` makes the person likely to engage in predatory acts of sexual violence if not confined in a secure facility.' Post, 170 Wn.2d at 309 -10 ( quoting RCW 71. 09. 020( 18) and citing In re Det. of Audett, 158 Wn.2d 712, 727, 147 P. 3d 982 ( 2006)). which requires future acts" the jury The sole SVP element at issue here is the third one, to find both that the " abnormality or disorder causes the likelihood of and that there is a greater than 50 percent probability that the defendant will 12 No. 43404 -1 - II Post, 170 Wn.2d reoffend. 310. at 9 In order to challenge the trial court' s exercise of its discretion, Francis must show that the excluded evidence was relevant to this third SVP element. Post, 170 Wn.2d at 311. In this endeavor, he fails. II. RELEVANCE AND ADMISSIBILITY OF EXCLUDED " TWO STRIKES" TESTIMONY Our Supreme Court has observed that a defendant' s " knowledge of the consequences for engaging in [ prohibited] conduct may well serve as a deterrent to such conduct and, therefore, has some tendency to diminish the likelihood of his committing another predatory act of sexual violence. at This likelihood, 316 -17 ( legality of of course, emphasis added) ( the " two strikes" citing is an element that the RCW 71. 09. 020( 18)). jury Post, 170 Wn.2d must address." 10 But Francis' s understanding of the law, RCW 9. 94A.570, is not the same as knowledge of the consequences for engaging in prohibited conduct relevant to his risk of reoffense, 11 about which defense 9( counsel did 12 not ask. See Post, 170 Wn.2d at 316; RCW 71. 09. 020( 18). Citing In re Det. of Thorell, 149 Wn.2d 724, 736, 742, 72 P. 3d 708 ( 2003) and quoting In re overruled on other grounds by Det. of Brooks, 145 Wn.2d 275, 298, 36 P. 3d 1034 ( 2001), Thorell). 10 Francis' s argument relies on an overly expansive reading of Post. In Post our Supreme Court expressly declined to rule that evidence of the SVP respondent' s knowledge about the " two strikes" law was admissible, only that it was relevant. Post, 170 Wn.2d at 317. 11 Even if Francis' s testimony about his knowledge of Washington' s " two strikes" law were relevant to his risk of reoffense, the trial court still had discretion to preclude it under ER 403 for prejudice or confusion. See Post, 170 Wn.2d at 317. 12 We note, however, that by the time defense counsel asked Francis about his awareness of the two strikes" parole when law, Francis had already raised the issue of a potential sentence of life without he testified about ( 1) his alleged 2005 sexual assault against inmate JG; ( 2) his experience being interrogated about the incident by law enforcement; and ( 3) his " understanding mind at the time ... that [ he] was in very big trouble and the possibility that [ he] would in [ his] remain in prison for the his] life." 4 VRP at 488. rest of [ 13 No. 43404 -1 - II Francis does not show that ( 1) his proffered testimony about the " two strikes" law was relevant to his knowledge of future punishment and its impact on his likelihood to reoffend, and 2) that the trial court' s rejection of 258, 893 P. 2d 615 ( 1995), Wn. App. at 337. it was either " untenable," or a position that " State v. Powell, 126 Wn.2d 244, no reasonable person would take." McGary, 175 Accordingly, we hold that the trial court did not abuse its discretion in excluding this narrow testimony, and we affirm. 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: 14

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