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In re Detention of Nelson

Court of Appeals of Washington, Division 1

February 26, 2018

In the Matter of the Detention of ZACHARY SHANE NELSON, Petitioner. In the Matter of the Detention of LOUIS BROCK, Petitioner.

          Becker, J.

         These linked appeals are before us on discretionary review to address a recurring issue in the procedure for determining whether a person committed as a sexually violent predator may have a trial for release. We hold that at a show cause hearing under RCW 71.09.090(2)(b), the prosecuting agency is free to rely on experts of its choosing rather than relying exclusively on annual evaluations prepared under RCW 71.09.070.

         The issue involves two distinct sections of chapter 71.09 RCW. The first is the requirement for an annual evaluation. Each person committed as a sexually violent predator "shall have a current examination of his or her mental condition made by the department at least once every year." RCW 71.09.070(1). The second is the procedure for a show cause hearing, which is set forth in RCW 71.09.090(2).

         A committed person may petition the court once a year for conditional release to a less restrictive alternative or unconditional release. The court then sets a show cause hearing to determine whether probable cause exists for a trial on release. RCW 71.09.090(2)(a). The court performs "a critical gate-keeping function" at the show cause hearing; the court "must assume the truth of the evidence presented" but at the same time "must determine whether the asserted evidence, if believed, is sufficient to establish the proposition its proponent intends to prove." State v. McCuistion, 174 Wn.2d 369, 382, 275 P.3d 1092 (2012). cert, denied. 568 U.S. 1196(2013).

         At a show cause hearing, the prosecuting agency for the state "shall present prima facie evidence establishing that the committed person continues to meet the definition of a sexually violent predator and that a less restrictive alternative is not in the best interest of the person and conditions cannot be imposed that adequately protect the community." RCW 71.09.090(2)(b). If the state does not make this initial showing, the court "shall" set a release trial. RCW 71.09.090(2)(c).

         If the state does make this initial showing, the committed person will still be allowed to have a release trial if probable cause exists to believe that the person's condition has "so changed" that

(A) the person no longer meets the definition of a sexually violent predator; or (B) release to a proposed less restrictive alternative would be in the best interest of the person and conditions can be imposed that would adequately protect the community.

RCW 71.09.090(2)(c)(ii); see In re Det, of Petersen, 145 Wn.2d 789, 798, 42 P.3d 952 (2002) (two statutory ways for a court to determine there is probable cause to proceed to an evidentiary hearing: "(1) by deficiency in the proof submitted by the State, or (2) by sufficiency of proof by the prisoner.") Proof that the prisoner has "so changed" must be shown by current evidence from a licensed professional of a physiological change or a treatment-induced change to the person's mental condition. RCW 71.09.090(4); McCuistion, 174 Wn.2d at 382.

         Petitioners contend that the prosecuting agency's prima facie evidence required by RCW 71.09.090(2)(b) is limited to the annual evaluation. The objective of petitioners is to proceed to a trial. If the state fails to make its prima facie showing at the show cause hearing, the committed person will be granted a full trial even if there is no evidence that the person has "'so changed.'" McCuistion, 174 Wn.2d at 380 ("The court must order an evidentiary hearing if the State fails to meet its burden"); In re Det, of Marcum, 189 Wn.2d 1, 8, 403 P.3d 16 (2017). Thus, if the prosecuting agency's evidence at the show cause hearing were limited to an annual evaluation, and that evaluation did not meet the State's burden stated in RCW 71.09.090(2)(b), the matter would proceed to trial.

         Nelson

         Petitioner Zachary Nelson was committed as a sexually violent predator in 2011. Nelson's commitment was based on acts he committed as an adolescent.

         Nelson's annual evaluation in 2015 was performed by Pr. Robert Saari, a psychologist employed as a forensic evaluator by the Pepartment of Social and Health Services. An annual evaluation must include "consideration of whether... the committed person currently meets the definition of a sexually violent predator." RCW 71.09.070(2)(a). According to Dr. Saari's report, he does not think Nelson currently meets the definition. He said that his opinion was based not on any clear change in Nelson's mental condition but on a fundamental disagreement with his initial commitment.

         Dr. Saari's evaluation was sent to the King County Superior Court and the King County Prosecuting Attorney's Office as required by RCW 71.09.070(1). Citing Dr. Saari's acknowledged lack of expertise with adolescent sex offenders, the prosecutor's office contacted the department and requested a second evaluation. The department retained Dr. Christopher North to complete a second evaluation of Nelson. Dr. North has experience with juvenile sex offenders and had previously evaluated Nelson. According to Dr. North's evaluation, Nelson currently meets the definition of a sexually violent predator.

         The court scheduled a show cause hearing to determine whether Nelson was entitled to an unconditional release trial. Nelson moved to strike Dr. North's evaluation, arguing the state was required to rely exclusively on the annual evaluation performed by Dr. Saari. The trial court denied the motion to strike. If the only professional evaluation before the court had been Dr. Saari's report stating that Nelson does not meet the definition of a sexually violent predator, the state would not have carried its ...


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