Detention Of Brian Taylor-rose , 199 Wash. App. 866 ( 2017 )

Filed
Washington State
Court of Appeals
Division Two
July 25, 2017
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In re Detention of: No. 47975-3-II
BRIAN TAYLOR-ROSE.
PUBLISHED OPINION
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.
No. 47975-3-II
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.
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No. 47975-3-II
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
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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 Wash. 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 Wash. 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
1
RCW 71.09.020 has been amended since the events of this case transpired. However, these
amendments do not impact the statutory language relied on by this court. Accordingly, we do
not include the word “former" before RCW 71.09.020.
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No. 47975-3-II
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 Wash. 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
Wash. 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 Wash. 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 accurately stated the law and did not constitute a comment on the
evidence.
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No. 47975-3-II
2. Analysis
The SVP statute does not define the term “crime of sexual violence.” However, RCW
71.09.020(17) provides a list of offenses that qualify as a “sexually violent offense” and that list
includes second degree child molestation.
Taylor-Rose argues that “crime of sexual violence” cannot mean the same thing as
“sexually violent offense” based on the principle that when the legislature uses different
language in the same statute, different meanings are intended. State v. Costich, 152 Wash. 2d 463,
475-76, 98 P.3d 795 (2004).
Division One of this court addressed this issue in In re Detention of Coppin, 157 Wn.
App. 537, 238 P.3d 1192 (2010). In Coppin, the court stated that under general principles of
statutory interpretation, the meaning of “crime of sexual violence” in RCW 71.09.020(18) must
be considered in conjunction with other provisions in the same statute. Id. at 553; see State v.
Evans, 177 Wash. 2d 186, 192, 298 P.3d 724 (2013). The court also stated that the interpretation of
a statutory provision must avoid unlikely, absurd or strained results. Coppin, 157 Wash. App. at
553; see State v. Shirts, 195 Wn. App 849, 858, 381 P.3d 1223 (2016).
Applying these principles, the court looked to the definition of “sexually violent offense”
in RCW 71.09.020(17) to determine the meaning of “crime of sexual violence.” Coppin, 157
Wash. App. at 553. The court stated, “The legislature expressly defined ‘sexually violent offense’
to include statutory rape in the first degree. Given this definition, it would be absurd to
conclude that first degree statutory rape, a ‘sexually violent offense,’ is not also a ‘crime of
sexual violence.’ “ Id.
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No. 47975-3-II
The court in Coppin expressly rejected the argument Taylor-Rose makes here: that
because the legislature used different terms in subsections (17) and (18), it must have intended
different meanings. Id. The court stated that “there is no material difference between the term
‘violent’ used in subsection 17 and the term ‘violence’ used in subsection 18.” Id.
Taylor-Rose urges this court to reject Division One’s holding in Coppin. But we agree
with the analysis in Coppin. A crime that is expressly listed in the definition of “sexually violent
offense” in RCW 71.09.020(17) necessarily also qualifies as a “crime of sexual violence.”
Here, the trial court’s instructions correctly declared the law that second degree child
molestation is a crime of sexual violence under RCW 71.09.020(18) and therefore those
instructions did not relieve the State of its burden of proof. Accordingly, we hold that the trial
court did not err in instructing the jury that second degree child molestation was a crime of
sexual violence.
C. SUFFICIENCY OF THE EVIDENCE – LIKELIHOOD OF REOFFENDING
The third element the State must prove to show a person is an SVP is that the
respondent’s mental abnormality or disorder “makes the person likely to engage in predatory acts
of sexual violence if not confined in a secure facility.” RCW 71.09.020(18). Taylor-Rose
argues that the State presented insufficient evidence to establish this element because the State’s
expert relied on Taylor-Rose’s lifetime risk of committing such acts. He asserts that his lifetime
risk could not support a finding that he was “currently dangerous,” as required by due process.
We disagree.
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No. 47975-3-II
1. Standard of Review
We treat sufficiency challenges to SVP civil commitment determinations like sufficiency
challenges to criminal convictions. In re Det. of Thorell, 149 Wash. 2d 724, 744, 72 P.3d 708
(2003). We view the evidence in the light most favorable to the State and ask whether the
evidence was “sufficient to persuade a fair-minded, rational person that the State has proved
beyond a reasonable doubt that [the respondent] is a sexually violent predator.” State v.
Hoisington, 123 Wash. App. 138, 147, 94 P.3d 318 (2004). We defer to the trier of fact on
determinations of witness credibility and evidentiary weight. In re Det. of Sease, 149 Wash. App.
66, 80, 201 P.3d 1078 (2009).
2. Legal Principles
In order for the civil commitment process to comply with due process requirements, the
State must prove that the alleged SVP is both mentally ill and currently dangerous. In re Det. of
Moore, 167 Wash. 2d 113, 124, 216 P.3d 1015 (2009) (citing Foucha v. Louisiana, 504 U.S. 71,
112 S. Ct. 1780, 118 L. Ed. 2d 437 (1992)). However, our Supreme Court in Moore held that
“by properly finding all the statutory elements are satisfied to commit someone as an SVP, the
fact finder impliedly finds that the SVP is currently dangerous.” 167 Wash. 2d at 124.
In Moore, the court stated that “[l]ikely to engage in predatory acts of sexual violence” as
defined in RCW 71.09.020(7) contains a temporal component. Id. For example, the court noted
that “if an expert predicts that an alleged SVP will reoffend only in the far distant future, then
there is less likelihood that the ‘more probable than not’ standard has been legally satisfied.” Id.
But the court stated that whether that standard is satisfied depends on the specific facts of the
case and the expert testimony, including the statistical likelihood of reoffending. Id. at 124-25.
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No. 47975-3-II
The court in Moore held that if a jury properly finds a person to be an SVP – that the
person will more probably than not engage in predatory acts of sexual violence if not confined to
a secure facility – “it is implied that the person is currently dangerous.” Id. at 125. The court
concluded that “[w]e do not deem it necessary to impose on the State the additional burden that it
prove the SVP will reoffend in the foreseeable future.” Id.
3. Sufficiency Analysis
Hoberman testified that he performed a risk assessment based on multiple risk assessment
approaches and measures in order to form an opinion about whether Taylor-Rose was likely to
engage in predatory acts of sexual violence over his remaining lifetime if not confined to a
secure facility. He stated that to reach his conclusion he used various actuarial instruments, his
structured professional judgment, and an analysis of dynamic risk factors, which involved
identifying predispositions or enduring characteristics that may convey risk for sexual offending
in the future. He also considered other factors that might bear on overall risk. Hoberman
concluded that in his expert opinion Taylor-Rose would more likely than not commit a predatory
act of sexual violence if not confined in a secure facility.
Taylor-Rose argues that Hoberman’s testimony improperly relied on Taylor-Rose’s
lifetime risk for reoffending, and that some other formulation must be used to express a person’s
overall risk. Taylor-Rose relies on the United States Supreme Court’s decision in Foucha, which
stated that due process requires that civil commitment be based on a finding that a person is both
mentally ill and currently dangerous. 504 U.S. at 77, 80. He argues that lifetime risk cannot
show the required current dangerousness.
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However, Taylor-Rose does not provide any legal authority supporting his interpretation
of “currently dangerous” as excluding lifetime risk. And our Supreme Court clearly stated in
Moore that current dangerousness is not a separate factor, but is inherent in the existing
definition of an SVP. 167 Wash. 2d at 125. The court expressly rejected the idea that the State’s
burden should include showing a likelihood of reoffending within the foreseeable future. Id.
Therefore, we reject Taylor-Rose’s assertion that consideration of lifetime risk is improper or
represents insufficient evidence.
Further, Hoberman’s testimony was not the only evidence the State presented. The
testimony regarding Taylor-Rose’s prior offenses, his conduct while on community supervision,
and his own statements during treatment about creating new victims if released support the jury’s
finding that Taylor-Rose was likely to engage in predatory acts of sexual violence if not confined
to a secure facility.
Accordingly, viewing Hoberman’s testimony and other supporting evidence in the light
most favorable to the State, there was sufficient evidence to support the jury’s finding that
Taylor-Rose more probably than not would commit predatory acts of sexual violence if not
confined in a secure facility.
D. INSTRUCTION ON LIKELIHOOD OF REOFFENDING
The trial court’s instruction 15 addressed the third element the State must prove to show a
person is an SVP: the likelihood that the respondent will “engage in predatory acts of sexual
violence if not confined in a secure facility.” RCW 71.09.020(18). Taylor-Rose argues that the
trial court erred in giving instruction 15 because that instruction (1) required the jury to
determine Taylor-Rose’s risk level if released “unconditionally” from detention in the SVP
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No. 47975-3-II
proceeding, (2) did not include a reference to “placement conditions,” and (3) did not include
language instructing the jury about the State’s ability to bring a new SVP petition in the future if
he was not confined. We disagree.
1. Standard of Review
“Jury instructions are generally sufficient if they are supported by the evidence, allow
each party to argue its theory of the case, and when read as a whole, properly inform the trier of
fact of the applicable law.” Fergen v. Sestero, 182 Wash. 2d 794, 803, 346 P.3d 708 (2015); see
also In re Det. of Monroe, 198 Wash. App. 196, 202, 392 P.3d 1088 (2017) (applying general rule
to SVP case). When we review a jury instruction, we consider all the trial court’s instructions as
a whole to ensure that both parties are allowed to fairly state their case.2 Rekhter v. Dep’t of Soc.
& Health Servs., 180 Wash. 2d 102, 120, 323 P.3d 1036 (2014).
We review alleged errors in law in a trial court’s jury instructions de novo. Fergen, 182
Wash. 2d at 803. However, absent a legal error we review a trial court’s decision regarding the
specific language of the instruction for an abuse of discretion. Terrell v. Hamilton, 190 Wn.
App. 489, 498, 358 P.3d 453 (2015). A trial court has broad discretion in determining the
wording of jury instructions. State v. Walters, 162 Wash. App. 74, 82, 255 P.3d 835 (2011). We
also review a trial court’s decision not to give a proposed instruction for abuse of discretion.
2
Taylor-Rose argues that we must review the jury instructions to determine whether the relevant
legal standard was “manifestly apparent” to the average juror, citing State v. Kyllo, 166 Wash. 2d
856, 864, 215 P.3d 177 (2009). But the court in that case was tasked with determining whether
one incorrect instruction and one correct instruction read together made the correct standard
apparent to the jury. Id. at 864-65. Taylor-Rose does not argue that there were contradictory
instructions given in this case as in Kyllo. Accordingly, we reject Taylor-Rose’s request to apply
the standard from Kyllo.
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No. 47975-3-II
Rekhter, 180 Wash. 2d at 120. A trial court abuses its discretion when its decision is manifestly
unreasonable or based on untenable grounds. Terrell, 190 Wash. App. at 499.
Because Taylor-Rose’s arguments regarding instruction 15 involve word choice and the
trial court’s decision to not include his proposed additional language, we apply an abuse of
discretion standard.
2. Reference to “Unconditional” Release
Instruction 15 stated:
“Likely 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.
....
In determining whether the respondent is likely to engage in predatory acts of
sexual violence if not confined to a secure facility, you may consider all evidence
that bears on the issue. In considering voluntary treatment options, however, you
may consider only voluntary treatment options that would exist if the respondent is
unconditionally released from detention in this proceeding.
CP at 27 (emphasis added). Taylor-Rose’s proposed instruction removed the word
“unconditionally” from this instruction. He argues that using that term was inappropriate
because his release from detention would not have been unconditional if the jury found that he
was not an SVP. Taylor-Rose emphasizes that he would have been subject to 36 to 48 months of
community supervision under the sentence for his 2009 conviction.
But instruction 15 contained language that was almost identical to the applicable statutes.
RCW 71.09.020(7) states:
“Likely 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 on the sexually violent predator petition.
(Emphasis added.) RCW 71.09.060(1) states:
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No. 47975-3-II
In determining whether or not the person would be likely to engage in predatory
acts of sexual violence if not confined in a secure facility, the fact finder may
consider only placement conditions and voluntary treatment options that would
exist for the person if unconditionally released from detention on the sexually
violent predator petition.
(Emphasis added.) The word “unconditionally” also is included in the applicable pattern jury
instruction on which instruction 15 was based: WPI 365.14. 6A WASHINGTON PRACTICE:
WASHINGTON PATTERN JURY INSTRUCTIONS: CIVIL 365.14, at 577 (6th ed. 2012) (WPI).
Further, instruction 15 allowed Taylor-Rose to argue that the conditions of his release
from confinement on his criminal conviction made him less likely to reoffend. The instruction
states that the jury could consider “all evidence that bears on the issue.”3 CP at 27. In fact, the
challenged portions of instruction 15 do not even address the conditions of Taylor-Rose’s release
from confinement on his criminal conviction. They refer to release “in this proceeding,” CP at
27; i.e., on the SVP petition. Taylor-Rose argues that a jury would not understand this nuance.
But an instruction is not erroneous simply because counsel may need to explain certain language
to the jury, particularly when the legislature has chosen that language. See State v. Harris, 164
Wash. App. 377, 387, 263 P.3d 1276 (2011) (stating that “a trial court should use the statute’s
language” when instructing the jury).
Removing the word “unconditionally” from instruction 15 as Taylor-Rose proposed
would have been contrary to the statutory language. And when read as a whole, the instruction
would not lead the jury to believe that it could not consider Taylor-Rose’s community
3
This portion of instruction 15 did not come from any part of the SVP statute. RCW
71.09.060(1) is unartfully written, and it could be argued based on that statute that the only
evidence regarding the likelihood of reoffending that a jury could consider was the respondent’s
placement conditions and voluntary treatment options. But because Taylor-Rose does not
challenge this language, we do not consider this issue.
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No. 47975-3-II
supervision for his criminal conviction. Therefore, we hold that the trial court did not err in
referencing unconditional release in instruction 15.
3. Failing to Include “Placement Conditions”
Taylor-Rose’s proposed instruction added language to the final paragraph of instruction
15. He proposed that the instruction should include “placement conditions” in addition to
“voluntary treatment options” as something the jury could consider in determining whether he
would likely engage in predatory acts of sexual violence if not confined in a secure facility. He
emphasizes that both RCW 71.09.060(1) and WPI 365.14 support including that language.
RCW 71.09.060(1) refers to placement conditions. That statute states:
In determining whether or not the person would be likely to engage in predatory
acts of sexual violence if not confined in a secure facility, the fact finder may
consider only placement conditions and voluntary treatment options that would
exist for the person if unconditionally released from detention on the sexually
violent predator petition.
(Emphasis added.)
WPI 365.14 includes “placement conditions” as language that can be included in the
instruction:
[In determining whether the respondent is likely to engage in predatory acts of
sexual violence if not confined to a secure facility, you may consider all evidence
that bears on the issue. In considering [placement conditions or] voluntary
treatment options, however, you may consider only [placement conditions or]
voluntary treatment options that would exist if the respondent is unconditionally
released from detention in this proceeding.]
(Emphasis added.) The note on use accompanying the pattern instruction states that the
bracketed paragraph “should be used when evidence of . . . ‘placement conditions’ has been
introduced into evidence. Use the bracketed phrase ‘placement conditions’ only if the evidence
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No. 47975-3-II
indicates that the respondent will be subject to court-ordered supervision, even if released on the
predator petition.” WPI 365.14 note on use at 577.
The comment to WPI 365.14 states that the instruction allows “consideration of court-
ordered conditions that would exist if the SVP petition were dismissed. . . . ‘Conditions that
would exist’ are typically pre-existing community supervision conditions placed on respondent
in connection with a prior criminal conviction.” WPI 365.14 comment at 578-79.
Based on the statute and pattern jury instruction, it would have been appropriate for the
trial court to include “placement conditions” in the instruction because evidence was admitted at
trial regarding Taylor-Rose’s community supervision. However, the fact that it would be proper
to include certain language in a jury instruction does not mean that the trial court was required to
include that language. See Terrell, 190 Wash. App. at 506. The issue here is whether the trial
court abused its discretion in not including the “placement conditions” language.
As noted above, instruction 15 stated that the jury may consider “all evidence that bears
on the issue” of whether Taylor-Rose was likely to engage in predatory acts of sexual violence if
released. CP at 27. This instruction did not prevent or prohibit the jury from considering
Taylor-Rose’s community supervision. Although it would have been more helpful to Taylor-
Rose if the instruction explicitly drew the jury’s attention to placement conditions, the instruction
allowed the jury to consider “all evidence.” The trial court admitted the terms of his community
supervision into evidence. Taylor-Rose’s community supervision was also discussed by
Hoberman when he testified about the risk assessment he performed on Taylor-Rose. Therefore,
instruction 15 as given did not prevent Taylor-Rose from arguing his theory that he could be
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No. 47975-3-II
safely released from the SVP petition because his community supervision would prevent him
from engaging in predatory acts of sexual violence.
When read as a whole, instruction 15 would not lead the jury to believe that it could not
consider placement conditions such as Taylor-Rose’s community supervision and allowed
Taylor-Rose to argue those placement decisions. Accordingly, we hold that even though
including a reference to “placement conditions” in instruction 15 would have been appropriate,
the trial court did not abuse its discretion in declining to include that language.4
4. State’s Ability to Bring a New SVP Petition
Taylor-Rose’s proposed version of instruction 15 included language stating that the State
could bring a new SVP petition if Taylor-Rose committed a recent overt act following his
release. Under RCW 71.09.030(1)(e), the State can file an SVP petition if a person who has
previously been convicted of a sexually violent offense and later is released from confinement
commits a recent overt act. Taylor-Rose argues that the trial court erred by refusing to include
that language because without it, he was unable to argue that he was less likely to reoffend
because certain acts could subject him to future confinement. We disagree.
Taylor-Rose relies on Post, 170 Wash. 2d at 316-17. In Post, the court held that “[e]vidence
that a respondent in an SVP proceeding who is subsequently released could be subject to another
SVP proceeding if he commits a recent overt act is relevant and is a condition that would exist
upon placement in the community.” Id. at 316. The court noted that this evidence is relevant
4
Although we hold that the trial court did not err in giving instruction 15, we believe that the
language of WPI 365.14 – on which instruction 15 was based – could be clearer. The second
sentence of the final paragraph does not follow from the first sentence. Adding the following
second sentence would be helpful: “This evidence includes the respondent’s [placement
conditions and] voluntary treatment options.”
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No. 47975-3-II
because the threat of a new SVP petition would have “some tendency to diminish the likelihood
of [respondent] committing another predatory act of sexual violence.” Id. at 317.
However, Post did not require that a trial court give a proposed jury instruction regarding
the possibility of a new SVP petition and in fact did not address jury instructions at all.
Therefore, the issue here is whether Taylor-Rose’s proposed language was necessary for him to
argue his theory that the threat that the State could file a new SVP petition would make him less
likely to reoffend. See Monroe, 198 Wash. App. at 202.
Here, as noted above, instruction 15 stated that the jury could consider all evidence that
bears on the issue of whether Taylor-Rose was likely to engage in predatory acts of sexual
violence if not confined to a secure facility. The threat that the State would file a new SVP
petition based on certain conduct was evidence relating to that issue, and therefore this
instruction allowed Taylor-Rose to argue his theory without the need for more specific language.
Further, in this case there was no evidence presented at trial that Taylor-Rose would be
less likely to reoffend because of the potential for new SVP petitions. Therefore, Taylor-Rose’s
proposed language was not supported by the evidence. A trial court does not abuse its discretion
when it refuses to give an instruction that is not supported by the evidence. See State v. Green,
182 Wash. App. 133, 152, 328 P.3d 988 (2014).
Accordingly, we hold that the trial court did not abuse its discretion by refusing to
include in instruction 15 Taylor-Rose’s proposed language regarding the State’s ability to file a
new SVP petition.
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No. 47975-3-II
E. APPELLATE COSTS
Taylor-Rose requests that we not impose appellate costs if the State prevails because he is
indigent. We decline to consider this issue. A commissioner of this court will consider whether
to award appellate costs in due course under RAP 14.2 if the State decides to file a cost bill and
if Taylor-Rose objects to that cost bill.
CONCLUSION
We affirm Taylor-Rose’s commitment as an SVP.
MAXA, A.C.J.
We concur:
LEE, J.
SUTTON, J.
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