In re the Detention of Marshall

fl Petitioner Raymond Marshall challenges a Court of Appeals decision affirming his commitment as a sexually violent predator. He claims that his detention is improper because the State was required to plead and prove a “recent overt act.” Marshall also challenges the State’s expert’s testimony, arguing, among other things, that the psychologist who testified was not licensed to practice in Washington and therefore was not authorized to conduct an evaluation to determine whether he is a sexually violent predator. We affirm the Court of Appeals.

Madsen, J.

FACTS

¶2 On November 6, 2000, the State filed a petition seeking to have Mr. Marshall committed as a sexually violent predator pursuant to chapter 71.09 RCW. Marshall has a history of sex offenses, including a conviction pursuant to a plea agreement for child molestation resulting from sexual contact with a six-year-old girl in 1989. This offense was a sexually violent offense, as the term is defined in RCW 71.09.020. At the same time, Mr. Marshall pleaded guilty to communicating with a child for immoral purposes; the offense was committed in 1989, and the victim was an 11-year-old boy. Marshall was sentenced to a 27-month prison term for these offenses and was released in June 1992. Mr. Marshall was convicted in 1992 of felony communication with a minor for immoral purposes, resulting from fondling a nine-year-old girl on August 14, 1992, while he worked as a ride attendant at a county fair. In exchange for his guilty plea on this charge, an additional charge of child molestation was dismissed. Marshall was sentenced to 16 months’ confinement and was released in August 1993.

¶3 In 1995, Mr. Marshall attempted to lure two 11-year-old girls to him and stared at the genital area of one of the girls. He was on community placement at the time, with conditions that prohibited him from having contact with minor girls. He received a community placement violation as a result of these acts.

¶4 In 1996, following a jury trial, Mr. Marshall was convicted of third degree rape, the offense for which he was incarcerated at the time the State filed the sexually violent predator petition. This conviction resulted from Marshall’s having nonconsensual sexual intercourse with an adult female on November 19, 1995. Although the victim was an adult, she was developmentally disabled and functioned at the level of a 10- to 12-year-old.

¶5 The certification of probable cause included the opinion of a Department of Corrections psychologist that Marshall met the criteria for commitment as a sexually violent predator. Neither the State’s petition nor the certificate alleged that Mr. Marshall was confined as a result of a conviction for a sexually violent act or an act that would qualify as a “recent overt act” under RCW 71.09.020(10). Marshall moved to dismiss the petition, arguing that due process required that the State plead and prove a recent overt act. The trial court denied the motion.

¶6 The trial court found that there was probable cause to believe that Marshall was a sexually violent predator and ordered him detained for an evaluation pursuant to RCW 71.09.040(4) before his commitment trial. At the special commitment center, a Washington licensed psychologist conducted the evaluation and prepared a report concluding that Mr. Marshall met the criteria for commitment as a sexually violent predator. The State also obtained an evaluation by another psychologist pursuant to a CR 35 court order. Shortly before the commitment trial was to begin, the trial court granted Mr. Marshall’s motion to exclude the evaluation and testimony by this psychologist in light of In re Detention of Williams, 147 Wn.2d 476, 55 P.3d 597 (2002), where this court held that CR 35 may not be used to compel a mental examination during pretrial discovery in civil commitment proceedings under chapter 71.09 RCW.

¶7 The State then retained Dr. Amy Phenix, who has been licensed as a clinical psychologist since 1992 in her home state of California. Dr. Phenix specializes in sex offender risk assessment and evaluation. She has conducted over 225 evaluations of individuals under sexually violent predator statutes in California, Washington, and other states.

¶8 Dr. Phenix did not conduct an in-person interview or evaluation of Mr. Marshall. Instead, she reviewed records of Marshall’s criminal and psychiatric history, including police reports, legal records, treatment records, juvenile records, psychological and psychiatric evaluations, and medical records. At the commitment trial, which was tried to the judge, Dr. Phenix testified that these are the type of records on which professionals in her field rely when evaluating individuals to determine whether they are sexually violent predators.

¶9 Dr. Phenix determined that Mr. Marshall suffers from multiple mental abnormalities described in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (4th ed. 2000) (DSM-IV-TR), a reference relied on by experts. Specifically, she found he suffers from pedophilia, sexual sadism, and paraphilia not otherwise specified (nonconsenting adults or rape-like behavior).1 In reaching these conclusions, Dr. Phenix also relied on Mr. Marshall’s self-reported fantasies and results of phallometric assessment. In addition, Dr. Phenix testified, Marshall suffers from antisocial personality disorder. Dr. Phenix testified that in her opinion Marshall’s mental abnormalities made it very likely that he would commit predatory acts of sexual violence in the future if he were not confined in a secure facility.

¶10 The State also called Mr. Marshall as a witness, who admitted to a jail guard that he might pose a risk to children but denied that he would be a danger to children if released. Additionally, the jail guard testified that he had transported Marshall to the courtroom that day and that during a short conversation, Marshall said that “your children aren’t safe.” Report of Proceedings (RP) at 229. The State introduced copies of the records of Marshall’s conviction for the 1989 child molestation that was a sexually violent offense, as well as copies of the records of Marshall’s convictions for other sex-related offenses.

fll The trial court determined that Mr. Marshall is a sexually violent predator and entered an order committing him to the custody of the Department of Social and Health Services for placement in a secure facility pursuant to chapter 71.09 RCW. Mr. Marshall appealed, arguing that the State was required to plead and prove a “recent overt act,” that Dr. Phenix was not qualified to testify, and that her testimony should have been excluded because she relied on inadmissible hearsay evidence to form her testimony. The Court of Appeals affirmed. In re Det. of Marshall, 122 Wn. App. 132, 90 P.3d 1081 (2004). We granted Marshall’s petition for discretionary review.

ANALYSIS

¶12 Mr. Marshall contends that because he was not incarcerated for a sexually violent offense when the sexually violent predator petition was filed, the State was required as a matter of due process to plead and prove beyond a reasonable doubt that he had committed a “recent overt act” in order to commit him as a sexually violent predator. The State maintains that the third degree rape for which Marshall was incarcerated at the time the sexually violent predator petition was filed was a crime that itself qualified as a recent overt act and therefore the State was not required to allege and prove that Marshall had committed a recent overt act.

f 13 The State may file a petition alleging an individual is a sexually violent predator when “it appears that [a] person who at any time previously has been convicted of a sexually violent offense is about to be released from total confinement.” RCW 71.09.030(1). Under RCW 71-.09.020(16), a “sexually violent predator” is one 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.” RCW 71.09.020(8) defines “mental abnormality” which “is tied directly to present dangerousness.” In re Det. of Hen-rickson, 140 Wn.2d 686, 692, 2 P.3d 473 (2000). This tie to present dangerousness is constitutionally required, as recognized in In re Personal Restraint of Young, 122 Wn.2d 1, 27, 857 P.2d 989 (1993), because due process requires that an individual must be both mentally ill and presently dangerous before he or she may be indefinitely committed. Accord In re Det. of Albrecht, 147 Wn.2d 1, 7-8, 51 P.3d 73 (2002).

¶14 Proof of a recent overt act may be required to establish current dangerousness. A “recent overt act” is “any act or threat that has either caused harm of a sexually violent nature or creates a reasonable apprehension of such harm in the mind of an objective person who knows of the history and mental condition of the person engaging in the act.” RCW 71.09.020(10). However, RCW 71.09.060(1) provides that the State must prove beyond a reasonable doubt that an individual has committed a recent overt act only if on the day the petition is filed, the individual was living in the community after release from custody. The statute “unambiguous [ly] direct [s] that the State need not prove a recent overt act when the subject of a sexually violent predator petition is incarcerated on the day the petition is filed.” Henrickson, 140 Wn.2d at 693.

¶15 Moreover, as we expressly held in Henrickson, due process does not require the State to prove a recent overt act “[w]hen, on the day a sexually violent predator petition is filed, an individual is incarcerated for a sexually violent offense, RCW 71.09.020[(15)], or for an act that would itself qualify as a recent overt act, RCW 71.09.020[(10)].” Henrickson, 140 Wn.2d at 695; see Albrecht, 147 Wn.2d at 8.

¶16 Instead, where the individual is incarcerated on the day the petition is filed, the question is whether the confinement is for a sexually violent act or an act that itself qualifies as a recent overt act. We agree with the analysis in State v. McNutt, 124 Wn. App. 344, 350, ¶ 12, 101 P.3d 422 (2004), that the inquiry whether an individual is incarcerated for an act that qualifies as a recent overt act is for the court, not a jury. The court must either determine from the materials relating to the individual’s conviction whether the individual is incarcerated for an act that actually caused harm of a sexually violent nature, or it must determine whether the individual was incarcerated for an act that qualifies as a recent overt act under a two step analysis described by the Court of Appeals in McNutt: first, an inquiry must be made into the factual circumstances of the individual’s history and mental condition; second, a legal inquiry must be made as to whether an objective person knowing the factual circumstances of the individual’s history and mental condition would have a reasonable apprehension that the individual’s act would cause harm of a sexually violent nature. Id.

¶17 That this is a question for the court is demonstrated by our decision in. Henrickson. There, one of the petitioners, Henrickson, had a history of sexual assaults on young girls and was incarcerated for attempted kidnapping and communicating with a minor — based on abducting a six-year-old girl and showing her a pornographic picture. The other petitioner, Halgren, had a history of sexual related offenses including first degree rape and was incarcerated for unlawful imprisonment of a prostitute. After holding that the State does not have to prove a recent overt act where the individual is incarcerated at the time a sexually violent predator petition is filed for an act that qualifies as a recent overt act, we concluded in each case that the petitioner was incarcerated for an act that constituted a recent overt act. Henrickson, 140 Wn.2d at 696 (Henrickson’s convictions “would certainly qualify as ... a recent overt act” and Halgren’s conviction “would also qualify as a. . . recent overt act”).

¶18 Here, the trial court concluded that the act for which the petitioner was convicted, third degree rape, was a recent overt act based upon the nature of the rape, as alleged in the charging document and proved at the rape trial, and petitioner’s history of offenses and mental condition. We agree with the trial court’s conclusion. Marshall’s history includes numerous incidents of seeking out and molesting young children. He was diagnosed as suffering from pedophilia, sexual sadism, and nonspecified paraphilia. His diagnosis of sexual sadism resulted in part from Marshall’s fantasies of molesting and hurting or killing young girls. In light of Marshall’s history and mental condition, the third degree rape, which involved non-consensual sex with a developmentally disabled woman who functioned at the level of a 10- or 12-year-old, would create a reasonable apprehension of harm of a sexually violent nature in the mind of an objective person.

¶19 Mr. Marshall’s reliance on Albrecht and In re Detention of Broten, 115 Wn. App. 252, 62 P.3d 514 (2003), is misplaced. In each of these cases, the offenders had been released into the community following total confinement and were then incarcerated again for violating the conditions of community placement. In each case, the court noted that where the offender has not been released from total confinement, due process does not require proof of a recent overt act. Albrecht, 147 Wn.2d at 10; Broten, 115 Wn. App. at 256.

¶20 Mr. Marshall next argues that Dr. Phenix was not licensed in Washington and therefore was not authorized to perform an evaluation under RCW 71.09.040(4). That statute requires that offenders submit to a sexually violent predator evaluation conducted “by a person deemed to be professionally qualified to conduct such an examination pursuant to rules developed by the department of social and health services.” RCW 71.09.040(4). Former WAC 388-880--010(12)(d) (Supp. 2000) defined a “psychologist” in relevant part as “a person licensed as a doctor of psychology under chapter 18.83 RCW.”2 Under chapter 18.83 RCW, psychologists must obtain a license to practice psychology in this state. RCW 18.83.020. Pursuant to RCW 18.83.082, a psychologist licensed in another state may obtain a temporary permit to practice in Washington state. Here, Dr. Phenix had obtained a temporary permit, but the record does not establish that it was valid at the time she conducted her evaluation of Marshall.3

¶21 But, as the Court of Appeals determined, Dr. Phenix did not conduct an evaluation pursuant to RCW 71-.09.040(4), and therefore whether she was qualified to conduct an evaluation under this statute is not relevant. Rather, her role in Mr. Marshall’s commitment trial was as an expert witness. She qualified as an expert witness based on her knowledge, skill, experience, training and education, and her knowledge assisted the trial judge in understanding the evidence and determining the facts at issue, i.e., whether Mr. Marshall suffered from a mental abnormality or personality disorder that made him likely to commit a predatory sexually violent act unless confined. See ER 702. RCW 71.09.040(4) simply does not address a psychologist’s expert testimony at trial.

¶22 Mr. Marshall also contends, however, that allowing Dr. Phenix to testify contravenes our decision in Williams. In Williams, the petitioners contended that the State could not obtain court ordered mental evaluations under CR 35 in advance of their sexually violent predator commitment trials. We agreed. Williams, 147 Wn.2d at 491. However, Marshall was not compelled to submit to an evaluation by Dr. Phenix, whether under CR 35 or otherwise, and in fact, Dr. Phenix did not interview Marshall in person. Nothing in Williams forecloses the type of evaluation conducted by Dr. Phenix or her expert testimony at the commitment trial.

¶23 Next, Mr. Marshall argues that Dr. Phenix’s opinion testimony was improperly based on a review of inadmissible hearsay records and violated ER 703 because it was conducted solely for the purpose of litigation.

¶24 ER 703 provides that if “facts or data ... upon which an expert bases an opinion or inference [are] of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.” The judicial comment to ER 703 notes, however, that an expert opinion should not be permitted “if the expert can show only that he [or she] customarily relies upon such material or that it is relied upon only in preparing for litigation.” ER 703 cmt.; see State v. Ecklund, 30 Wn. App. 313, 317-18, 633 P.2d 933 (1981).

¶25 Marshall contends the practice of psychology in Washington is defined by RCW 18.83.010(1), which, he says, contemplates that a psychologist will evaluate, diagnose, and treat based upon the observation of behavior and objective testing and measurement. He argues the definition does not contemplate that a psychologist would base a diagnosis on the records of others. He urges that the diagnostic method used by Dr. Phenix would be used only to prepare to testify in a lawsuit, and her opinion was therefore not admissible under ER 703.

¶26 The statutory definition of the practice of psychology is clearly broader than Mr. Marshall claims.4 Moreover, Dr. Phenix testified that her particular area of expertise is sex offender risk assessment and evaluation of sex offenders. She testified that the documents that she reviewed are of the type that other mental health professionals rely on when evaluating individuals to determine whether they are sexually violent predators. While Marshall objected, he presented no evidence to rebut Dr. Phenix’s testimony that the records are of the type reviewed by experts in the field.

¶27 Admission of Dr. Phenix’s testimony under ER 703 was proper. See Young, 122 Wn.2d at 58 (admission of expert testimony in sexually violent predator commitment trials upheld where the testimony was based on records reasonably relied on by others to diagnose future dangerousness).

¶28 Finally, Marshall contends that Dr. Phenix’s testimony should have been excluded because she related inadmissible hearsay as factual assertions. As noted, ER 703 permits an expert to base his or her expert opinion on facts or data that are not otherwise admissible provided that they are of a type reasonably relied on by experts in the particular field. Thus, the rule allows expert opinion testimony based on hearsay data that would otherwise be inadmissible in evidence. State v. Russell, 125 Wn.2d 24, 73-74, 882 P.2d 747 (1994); Group Health Coop, of Puget Sound, Inc. v. Dep’t of Revenue, 106 Wn.2d 391, 399, 722 P.2d 787 (1986) (“[t]he trial court may allow the admission of otherwise [inadmissible] hearsay evidence and inadmissible facts for the purpose of showing the basis of the expert’s opinion”). However, “ ‘ “it does not follow that such a witness may simply report such matters to the trier of fact: The Rule was not designed to enable a witness to summarize and reiterate all manner of inadmissible evidence.” ’ ” State v. DeVries, 149 Wn.2d 842, 848 n.2, 72 P.3d 748 (2003) (quoting State v. Martinez, 78 Wn. App. 870, 880, 899 P.2d 1302 (1995) (quoting 3 David W. Louisell & Christopher B. Mueller, Federal Evidence § 389, at 663 (1979))).

¶29 At trial, Marshall’s counsel objected to admission of facts in the records that Dr. Phenix reviewed as substantive evidence. The trial court sustained the objection, ruling that Dr. Phenix could relate otherwise inadmissible material only for the purpose of explaining the basis for her expert opinion. This ruling was consistent with ER 705, which grants the court discretion to allow the expert to relate hearsay or otherwise inadmissible evidence to the trier of fact to explain the reasons for his or her expert opinion, subject to appropriate limiting instructions. 5B Karl B. Tegland, Washington Practice: Evidence Law and Practice §§ 705.4, 705.5 (4th ed. 1999).

¶30 In accord with the trial court’s ruling and ER 703 and 705, Dr. Phenix related a number of facts that would have been inadmissible if offered to prove their truth to explain how she reached her conclusions about the likelihood that Mr. Marshall would commit a predatory sexually violent act unless confined. Mr. Marshall contends, however, that Dr. Phenix’s testimony rested entirely on inadmissible evidence.5 We do not agree that the State failed to present any admissible evidence to support the factual bases for Dr. Phenix’s testimony. For example, the State introduced the records of Mr. Marshall’s prior sex and sex-related offenses, as well as his testimony and that of the jail guard.

¶31 We find no error in allowing Dr. Phenix to relate otherwise inadmissible hearsay to explain the basis for her expert opinion.

CONCLUSION

¶32 The State was not required to plead and prove that Mr. Marshall committed a recent overt act in order for him to be committed as a sexually violent predator because at the time the sexually violent predator petition was filed, Marshall was incarcerated for an act that itself constituted a recent overt act. The question whether an individual is incarcerated for an act that itself qualifies as a recent overt act is for the court, not a jury. Further, the trial court did not err in admitting the testimony of the State’s expert psychologist, allowing her to base her testimony on otherwise inadmissible evidence, and allowing her to refer to that evidence during her testimony.

¶33 The Court of Appeals is affirmed.

Alexander, C.J., and C. Johnson, Bridge, Owens, Fairhurst, and J.M. Johnson, JJ., concur.

1 “Pedophilia” is characterized by “recurrent, intense sexually arousing fantasies, sexual urges, or behaviors involving sexual activity with a prepubescent child... (generally age 13 years or younger).” DSM-IV-TR at 572. “Sexual sadism” is characterized by “recurrent, intense sexually arousing fantasies, sexual urges, or behaviors involving acts (real, not simulated) in which the psychological or physical suffering (including humiliation) of the victim is sexually exciting to the person.” DSM-IV-TR at 574. “Paraphilia not otherwise specified” is a catchall category for paraphilias that do not fall within one of the other specified categories. DSM-IV-TR at 576.

2 WAC 388-880-010 has been amended to define “psychologist” as “a person licensed as a doctor of psychology in this state, or licensed or certified in another state, in accordance with chapter 18.83 RCW.”

3 Dr. Phenix testified that she believed she had a temporary license in Washington but was unsure of its expiration date. RP at 131.

4 RCW 18.83.010(1) provides:

When used in this chapter:

(1) The ‘practice of psychology5 means the observation, evaluation, interpretation, and modification of human behavior by the application of psychological principles, methods, and procedures for the purposes of preventing or eliminating symptomatic or maladaptive behavior and promoting mental and behavioral health. It includes, but is not limited to, providing the following services to individuals, families, groups, organizations, and the public, whether or not payment is received for services rendered:

(a) Psychological measurement, assessment, and evaluation by means of psychological, neuropsychological, and psychoeducational testing;

(b) Diagnosis and treatment of mental, emotional, and behavioral disorders, and psychological aspects of illness, injury, and disability; and

(c) Counseling and guidance, psychotherapeutic techniques, remediation, health promotion, and consultation within the context of established psychological principles and theories.

5 Marshall does not, however, address the facts and data that Dr. Phenix relied on in reaching her opinion and explain how all of it constituted inadmissible evidence.