In the Matter of the Detention of TROY BELCHER, Petitioner.
2011, at the age of 26, Troy Belcher was civilly committed as
a sexually violent predator. In 2015, the superior court
ordered that he continue to be indefinitely committed. It
based its decision on two sexually violent crimes he
perpetrated as a juvenile, a diagnosis of antisocial
personality disorder with high levels of psychopathy, and a
finding that he was more likely than not to recommit if
order to civilly commit a sexually violent predator, the
finder of fact must determine that (1) the person has been
convicted or charged with a sexually violent crime, (2) he or
she suffers from a mental abnormality, and (3) that
abnormality makes the person likely to engage in sexually
predatory acts if released. RCW 71.09.020(18). We have held
that juvenile offenses may be predicate offenses when an
adult has committed a more recent sexually overt act.
However, we have not yet ruled on whether commitment can be
continued using juvenile crimes as the sole predicate
offenses. Belcher argues commitment under this act violates
due process because it has the potential to permanently
confine a person for a juvenile offense. See WASH.
CONST, art. I, § 3. However, because of the robust
commitment procedure, confining individuals only so long as
they are a danger to society, we disagree. We hold that
juvenile convictions can be predicate offenses for continued
commitment proceedings under RCW 71.09.090. We further find
that a diagnosis of antisocial personality disorder is
sufficient for a finding of mental abnormality under the
statute, and that the use of an actuarial tool grounded in
both sexual and nonsexual offenses does not violate due
process when applied to a sexually violent offender.
AND PROCEDURAL HISTORY
1998, at the age of 13, Troy Belcher sexually assaulted a
13-year-old girl. He followed the girl from a park before
forcing his way inside the house in which she was
babysitting, pushing her upstairs, and vaginally raping her.
He was found guilty of rape in the second degree and
sentenced to 65 weeks with the Department of Social &
Health Service's Juvenile Rehabilitation. Two years
later, while on parole, Belcher assaulted another 13-year-old
girl. He offered to show her a shortcut through the woods,
but instead pulled down her pants, pinned her to the ground,
and threatened to harm her if she screamed. He was found
guilty of attempted rape in the second degree and sentenced
to a further 256 weeks. In 2004, when he was 19 and in
custody with the Department of Corrections, Belcher asked a
fellow inmate about having Belcher's first victim killed.
He was charged with solicitation to commit murder in the
first degree and intimidating a witness, but pleaded guilty
to the latter charge and was sentenced to 27 months in
2007, before Belcher was eligible for release, the State
moved to have him civilly committed as a sexually violent
predator (SVP). He was detained pending trial and, following
a jury trial in 2011, was formally committed to the Special
Commitment Center pursuant to RCW 71.090.020.
2015, after waiving his right to a jury, Belcher was retried
at a bench trial to determine if he still met the criteria of
an SVP pursuant to RCW 71.09.090. In his second trial, the
court heard testimony from the State's expert
psychologist, Dr. Brian Judd. Judd diagnosed Belcher with
antisocial personality disorder (ASPD) with high levels of
psychopathy. Judd also gave him a "rule out, " or
provisional, paraphilia diagnosis, indicating Belcher had
exhibited certain paraphilic traits in the past but did not
exhibit enough now for a full diagnosis. Judd utilized the
American Psychiatric Association's Diagnostic and
Statistical Manual of Mental Disorders (5th ed. 2013),
as well as the Hare Psychopathy Checklist-Revised (PCL-R) to
come to his conclusions. Judd also used the Violence Risk
Appraisal Guide-Revised (VRAG-R), an actuarial tool based on
both sexually and nonsexually violent offenses, to determine
Belcher's risk of reoffense.
opined that Belcher's ASPD was significant enough to
qualify as a "mental abnormality." 2B Verbatim
Report of Proceedings (VRP) (Feb. 4, 2015) at 464. He worried
that Belcher's high level of psychopathy would impair his
emotional control and that it could correlate with more
offenses encompassing greater violence. Using the VRAG-R,
Judd further determined Belcher was in the highest risk group
for reoffense, putting him at a 76 percent chance of
reoffense within five years of release and an 87 percent
chance within 12 years of release. Id. at 545-46.
trial court agreed with Judd and found that Belcher continued
to meet the definition of an SVP. The court first found that
"the predicate conviction requirement under the sexually
violent predator statute has been satisfied" by
Belcher's two sexually violent adjudications. Findings of
Fact, Conclusions of Law, & Order of Commitment (FF/CL)
at 3. It also found that Judd's diagnosis of
"Antisocial Personality Disorder with High Levels of
Psychopathy" was a mental abnormality under the statute.
Id. at 6-7. The court accepted Judd's use of the
VRAG-R to determine Belcher's likelihood of committing
future sexually violent offenses. It noted further that
numerous other factors, not just the VRAG-R result,
influenced the court's conclusion that Belcher would
likely reoffend. The court ultimately found that
"[Belcher] is a sexually violent predator, as that term
is defined by RCW 71.09.020(18), " and continued his
civil commitment. Id. at 12.
appealed, arguing that his civil commitment violated due
process. He claimed that because his crimes occurred when he
was a child and because he has not committed any further
sexually violent acts, the State could not prove he lacked
control as required to commit him. He also claimed that the
State failed to prove he was likely to commit sexually
violent offenses if released because the VRAG-R does not
differentiate sexual offenses from nonsexual offenses. He
finally claimed that his ASPD diagnosis was insufficient to
prove lack of control for due process purposes.
Two of the Court of Appeals affirmed the trial court. In
re Del of Belcher, 196 Wn.App. 592, 385 P.3d 174 (2016).
The court noted that Belcher's argument appeared to
center on parallels between the commitment of juvenile
offenders and a series of United States Supreme Court cases
addressing "how juvenile sentences may violate the
Eighth Amendment's ban on cruel and unusual
punishment." Id. at 607; U.S. CONST, amend.
VIII. However, the court distinguished those cases because
SVP commitment is a civil proceeding distinct from criminal
adjudication. Id. at 606. Further, additional
procedures ensure commitment "only last[s] as long as
the SVP continues to meet the criteria for commitment."
Id. Finally, it noted juvenile adjudications have
already been upheld as proper predicate offenses for
commitment under the SVP statute. Id. at 607 (citing
In re Del of Anderson, 185 Wn.2d 79, 89, 368 P.3d
court also analyzed Belcher's likelihood to reoffend and
his mental abnormality but opined they were "sufficiency
of the evidence" arguments, not constitutional ones.
Id. at 608, 610. It found that Judd "did not
make his assessment of Belcher solely on [the VRAG-R]."
Id. at 609. Because the trial court reviewed
Judd's entire testimony, including his clinical
observations of Belcher and the PCL-R analysis, the Court of
Appeals held that "a rational trier of fact could find
that Belcher continued to meet the definition of an SVP
beyond a reasonable doubt." Id. at 610.
Similarly, it noted that ASPD was a legitimate diagnosis.
Id. at 611. Because the trial court coupled this
diagnosis with evidence of Belcher's prior sexually
violent behavior and serious lack of control, the Court of
Appeals found that there was sufficient evidence to determine
that Belcher had a mental abnormality under the statute.
petitioned this court for review, which was granted. In
re. Del ofBelcher,187 ...