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In re Detention of Taylor-Rose

Court of Appeals of Washington, Division 2

July 25, 2017

In re Detention of: BRIAN TAYLOR-ROSE.

          Maxa, A.C.J.

         Brian Taylor-Rose appeals his civil commitment as a sexually violent predator (SVP) under RCW 71.09.060 following a jury trial.

         We hold that (1) the trial court did not err in instructing the jury that second degree child molestation is a crime of sexual violence, (2) the State provided sufficient evidence that Taylor-Rose was likely to engage in predatory acts of sexual violence if not confined to a secure facility, (3) the trial court did not err in instructing the jury to determine Taylor-Rose's risk level if released "unconditionally" from detention on the SVP petition, (4) the trial court did not err in declining to expressly include "placement conditions" as evidence the jury could consider in determining whether Taylor-Rose was likely to engage in predatory acts of sexual violence if not confined to a secure facility, and (5) the trial court did not err by declining to give Taylor-Rose's proposed instruction about the State's ability to bring a new SVP petition based on a recent overt act following his release.

         Accordingly, we affirm Taylor-Rose's commitment as an SVP.

         FACTS

         Taylor-Rose has two criminal convictions for sex offenses. In 1998, he pleaded guilty to second degree child molestation. In 2009, he pleaded guilty to third degree child molestation. In December 2012, before the end of Taylor-Rose's sentence, the State filed an SVP petition against him. The State used Taylor-Rose's 1998 conviction as the predicate sexually violent offense for the petition.

         Trial Testimony

         At trial, the State presented several witnesses to testify about the conduct leading to Taylor-Rose's two convictions. Lourene O'Brien-Hooper, a community corrections officer who supervised Taylor-Rose on and off for more than 10 years after he was released following his 1998 conviction, testified about his violations, arrests and high risk behavior while on supervision. She also stated her concerns about Taylor-Rose's deviant fantasies and arousal to children and his violating the condition to not have contact with children.

         Dr. Harry Hoberman, a forensic psychologist, testified that in his expert opinion it was more likely than not that Taylor-Rose would commit an act of sexual violence if not confined to a secure facility. Hoberman explained how he arrived at that conclusion using various assessments. His analysis included determining Taylor-Rose's lifetime risk of sexual reoffending. Hoberman also noted that the fact that Taylor-Rose would be under community supervision if released did not impact his opinion about Taylor-Rose's risk of reoffending.

         Taylor-Rose also testified. He stated that he no longer had deviant thoughts about children. He also stated that he would not have an issue being around children if released. However, he acknowledged that during earlier treatment sessions he had stated that, if released, he probably would create more victims.

         Jury Instructions

         The trial court instructed the jury on the three elements required to find Taylor-Rose met the definition of SVP. The first element was that he had been convicted of a crime of sexual violence. Two of the court's instructions informed the jury that second degree child molestation was a crime of sexual violence.

         The second element, which is not in dispute here, was that Taylor-Rose suffered from a "mental abnormality or personality disorder which causes serious difficulty in controlling his sexually violent behavior." Clerk's Papers (CP) at 18.

         The third element was that Taylor-Rose was likely to engage in predatory acts of sexual violence if not confined to a secure facility. The trial court gave instruction 15, which explained that " ' [l]ikely to engage in predatory acts of sexual violence if not confined in a secure facility' means that the person more probably than not will engage in such acts if released unconditionally from detention in this proceeding." CP at 27. The instruction stated that the jury could consider certain voluntary treatment options in making this determination. Taylor-Rose argued against this instruction, and proposed an instruction similar to instruction 15 that removed any reference to unconditional release and allowed the jury to consider his placement conditions if released. The court declined to give Taylor-Rose's proposed instruction.

         Verdict and Appeal

         The jury returned a verdict finding that the State had proved beyond a reasonable doubt that Taylor-Rose met the definition of an SVP. Pursuant to that verdict, the trial court issued an order of commitment confining Taylor-Rose to a special commitment center until such a time when his mental abnormality and/or personality disorder had changed so that he could be conditionally released or unconditionally discharged.

         Taylor-Rose appeals his commitment as an SVP.

         ANALYSIS

         A. Legal Principles

         For a person to be committed as an SVP, RCW 71.09.060(1) requires the State to prove beyond a reasonable doubt that the person is a sexually violent predator within the meaning of the commitment statute. In re Det. of Post, 170 Wn.2d 302, 309-10, 241 P.3d 1234 (2010). RCW 71.09.020 (18)[1] defines a "[s]exually violent predator" as:

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.

         This definition contains three elements:

(1) that the respondent "has been 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)).

         Regarding the third element, a person is "likely to engage in predatory acts of sexual violence" within the meaning of RCW 71.09.020(18) if "the person more probably than not will engage in such acts if released unconditionally from detention on the sexually violent predator petition." RCW 71.09.020(7).

         B. Instructions on "Crime of Sexual Violence"

         The first element the State must prove to show a person is an SVP is that the respondent "has been convicted of or charged with a crime of sexual violence." RCW 71.09.020(18) (emphasis added). Taylor-Rose argues that the trial court improperly commented on the evidence and relieved the State of its burden of proof when it gave two instructions stating that second degree child molestation was a "crime of sexual violence." We disagree.

         1. Legal Principles

         Article IV, section 16 of the Washington Constitution states, "Judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law." A trial court makes an improper comment on the evidence if it gives an instruction that (1) conveys to the jury his or her personal attitude on the merits of the case or (2) instructs the jury that matters of fact have been established as a matter of law. State v. Levy, 156 Wn.2d 709, 721, 132 P.3d 1076 (2006). But because it is the trial court's duty to declare the law, a jury instruction that does no more than accurately state the law pertaining to an issue is proper. State v. Brush, 183 Wn.2d 550, 557, 353 P.3d 213 (2015). We review the instructions de novo to determine if the trial court has improperly commented on the evidence. Levy, 156 Wn.2d at 721.

         Here, the trial court's instructions stating that second degree child molestation was a crime of sexual violence reflected a legal conclusion on that issue. If that legal conclusion was correct, the court's instructions ...


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