                                                                           COURT OF /APPEAL
                                                                                DIVISIO    Ti

                                               2013 SEP
          IN THE COURT OF APPEALS OF THE STATE F                               WASHIlVGW4
                                                                          STATE OF WASINGTM-
                                            DIVISION II                    Y
                                                                                  E   TY
In   re   the Detention of:                                           No. 42573-
                                                                               4-I


JACK LECK, II,

                              Petitioner.


                                                                  PUBLISHED OPINION




            PENOYAR J. — Jack Leek II appeals a jury verdict determining him to be a sexually

violent predator (SVP). In 1984, Leek was convicted in Alaska of crimes that are considered

sexually violent offenses under Washington's SVP laws. After his release for these crimes, Leek

was convicted in 2003 in Kitsap County, Washington, for possession of depictions of a minor

engaged in sexually explicit conduct.

            In 2008, the State filed a petition in Kitsap County to have Leek committed as an SVP.

In the petition, the State ' alleged that Leek had a mental abnormality that predisposed him to

commit sexually violent acts in the future. At Leek's commitment trial, the jury was instructed

that it could find that Leek was an SVP based either on this mental abnormality or on a

personality disorder not mentioned in the petition. The jury found that Leek was an SVP, and
the court ordered him committed.


            Leek appeals, arguing that the State had no authority to file a petition against him under

the law in effect in 2008. Leek further argues that retroactive application of the law as amended

in 2009, which clearly gave the State authority to file a petition in situations like Leek's,would

deny him due process. Here we follow In re Detention ofDurbin, 160 Wn. App. 414, 248 P. d
                                                                                      3

124, review denied, 172 Wn. d 1007 (2011),
                          2              a          case   involving analogous facts, in which we held
42573 4 II
      - -




that the State had authority to file an SVP petition under the 2008 law and that retroactive

application of the 2009 law did not violate due process. Leek also argues, however, that his due

process right to notice was violated when the jury was instructed on the personality disorder.

Because the petition against Leek cannot be construed even liberally to include the personality

disorder element as a charged element and thus satisfy due process, we reverse and remand. On

remand;the State may either file a new SVP petition against Leek or amend the 2008 petition for

a new commitment proceeding.

                                                     FACTS


I.        FACTUAL BACKGROUND


          Leek was convicted in 1984 in Alaska of second degree sexual abuse of 'a minor and

second degree attempted sexual abuse of a minor. For purposes of Washington's SVP laws at

chapter      71. 9 RCW, these two convictions amount to "sexually violent
               0                                                                  offenses."'Leek      was


released on parole from confinement for these offenses in July 1996. After being in and out of

confinement for various parole violations, Leek was unconditionally released from confinement

in September 2002.

          In April 2003, Leek applied for a membership at the YMCA in Bremerton, Washington.

A YMCA employee, aware that Leek was a sex offender in Alaska, contacted Bremerton police.

Having been informed by Leek's family when Leek was released in 2002 that he might try to

enter the Bremerton YMCA, the police contacted the address -Leck had left there; the address

was    for   a   charitable   organization   at which Leek had   begun volunteering   a   week earlier. The


police searched the organization's computer to which Leek had had access during that week,

1 RCW 71. 9.
      020( 7)
         1
         0  defines "sexually violent offense."
2
    Leek's family lived in the Bremerton area at this time.
                                                        2
42573 4 II
      - -




discovering numerous images downloaded during that time of minors engaged in sexually

explicit conduct. Leek was arrested and later convicted in Kitsap County Superior Court of 46

counts of possession of depictions of a minor engaged in sexually explicit conduct.

II.      PROCEDURAL BACKGROUND


         In April 2007, shortly before Leek completed serving his sentence for the Kitsap County

conviction, the State filed   a   petition   in Thurston   County alleging   that Leek   was an   SVP. Leek

was transported first to the Thurston County jail and then, after a probable cause finding under

RCW 71. 9.to the Special Commitment Center on McNeil Island to await his commitment
    040,
      0

trial.


         In May 2008, before Leek's trial,the Washington Supreme Court issued In re Detention

ofMartin, holding that an SVP petition was improperly filed in Thurston County where Martin,

the alleged SVP, had committed sexually violent offenses outside Washington and offenses that

were not sexually violent in Clark County, Washington. 163 Wn. d 501, 504 05, 182 P. d 951
                                                             2            -        3

2008).In view of Martin,the State moved to dismiss the Thurston County petition against Leek




3
 RCW 71. 9.governs filing SVP petitions. The 1995 version of the statute was in effect
        030  0
when the State filed'the petition against Leek in Thurston County. The legislature amended this
version of the statute in 2008, but this amendment merely made one technical correction to the
statute that is immaterial to analysis here. See LAWS OF 1995, ch. 216, § 3; LAWS OF 2008,
                                  our

ch. 213, § 12. The 2008 version of the statute was in effect when the State refiled its petition
against Leek in Kitsap County. The current version of the statute reflects the legislature's
substantive amendments in 2009. See LAWS OF 2009, ch. 409, §3.

4 "`
    Sexually violent predator' means 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."RCW 71. 9. The previous version of RCW 71. 9.in force when
                          020( 8).
                                1
                                0                                       020 0
the State filed its petitions against Leek in Thurston and Kitsap Counties provided this same
definition of sexually violent predator."See former RCW 71. 9. (
              "                                            020( 6)
                                                                 1
                                                                 0        2006).
                                                       3
42573 4 II
      - -




andat the request of the Kitsap County prosecutorfiled a petition against Leek instead in
   —                                              —

Kitsap County in July 2008.

        The Kitsap County petition was based on consulting psychologist Dale Arnold's 2006

evaluation of Leek in which Arnold diagnosed Leek with pedophilia. As grounds for filing the

petition, the   State   alleged   that Leek had   a   mental   abnormality —namely, pedophiliabut did not
                                                                                              —

allege any personality disorder.
        Leek moved to dismiss the petition in December 2008 for lack of jurisdiction and

probable cause, arguing that he was unlawfully detained at the time the State filed the petition in

Kitsap County. Relying on In re Detention of Keeney, 141 Wn. App. 318, 330, 169 P. d 852
                                                                                 3

2007), trial court concluded that an unlawful detention under a criminal proceeding does not
     the

divest the court of its power to process an SVP petition, and so the court denied Leek's motion in

May 2009.




5
 Leek refused an interview with Arnold in 2005 for purposes of Arnold's initial evaluation of
Leek; as a result,Arnold based his evaluation on a review of records alone.
6
  Although the SVP definition included the term "personality disorder" as early as 2006, the
legislature did not include a definition for " ersonality disorder" in RCW 71. 9.until 2009.
                                             p                             020
                                                                             0
See LAWS     of   2009, ch. 409, § 1. When the State filed its SVP petitions against Leek in 2007 and
2008, however, the definition of "sexually violent predator" already included "personality
disorder" as an alternative precondition to establishing a person's status as an SVP. See RCW
020( 6)
71. 9. (
   1
   0  2006).
                                                           4
42573 4 II
      - -




        Then, in October 2010, the State moved for a ruling that, as a matter of law, Leek's 2003

conviction for possession of depictions of minors engaged in sexually explicit conduct qualified

as a recent overt act,which would relieve the State of its burden to prove a recent overt act at

trial. Attached to the State's motion was an update to Arnold's evaluation based on Arnold's

face to face interview with Leck in
      - -                                     September    2010.   In the updated evaluation, Arnold

diagnosed Leck with a personality disorder that predisposed him to commit criminal sexual acts.

At no point, however, did the State amend the petition to include this personality disorder as

grounds for the petition.

        Treating the State's recent -overt- ct motion as one for partial summary judgment, the
                                          a

trial court denied the motion, pointing to conflicting expert opinion on Leek's mental condition.

The State moved for reconsideration.             At the reconsideration hearing, with Leck present




7 "`Recent overt act' means any act, threat, or combination thereof 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
or behaviors."RCW 71. 9.The previous version of RCW 71. 9.in force when the
                  020( 2).
                     1
                     0                              020
                                                      0
State filed its petitions against Leck in Thurston and Kitsap Counties provided a substantially
                      recent overt act." See former RCW
similar definition of "                                             020( 0)
                                                                       1
                                                                       0   2006). The
                                                                    71. 9. (                    minor

changes made to this definition in 2009 do not affect our analysis here. See Durbin, 160 Wn.
App. at 426.

8 Due process requires showing that the alleged SVP, if released into the community, is currently
dangerous; showing         a                       dangerousness element. In re Det. of
                               recent overt act satisfies this

Albrecht, 147 Wn. d 1, 10 11, 51 P. d 73 (2002). The State does not need to show a recent
                2         -       3
overt act to prove current dangerousness, however, when, on the day the State files the petition,
the alleged SVP is confined for an act that meets the statutory definition of a recent overt act. In
re   Det.   of Marshall,   156 Wn. d 150, 157, 125 P. d 111 ( 2005).
                                 2                  3                      T] e inquiry whether an
                                                                           "[ h
individual is incarcerated for an act that qualifies as a recent overt act is for the court, not a jury."
Marshall, 156 Wn. d at 158.
                2
                                                       5
42573 4 II
      - -



telephonically, the trial court vacated its previous ruling and granted the State's motion, ordering

that Leek's 2003 conviction qualified as a recent overt act.
         At trial, the court gave the following jury instruction on finding whether Leek was an

SVP:


                 To establish that Jack Leek, II is a sexually violent predator, the State
         must prove each of the following elements beyond a reasonable doubt:
                1)  That Jack Leek, 1I has been convicted of a crime of sexual violence,
         namely the Alaska offense of Sexual Abuse of a Minor in the Second Degree
         and or Attempted Sexual Abuse of a Minor in the Second Degree;
             /
                2)That Jack Leek, II suffers from a mental abnormality or personality
         disorder which causes serious difficulty in controlling his sexually violent
         behavior; and
                  3)  That this mental abnormality or personality disorder makes Jack Leek,
         II likely to engage in predatory acts of sexual violence if not confined to a secure
         facility.
                 If you find from the evidence that each of these elements has been proved
         beyond a reasonable doubt, then it will be your duty to return a verdict that Jack
         Leek, II is a sexually violent predator.
                 On the other hand, if, after weighing all of the evidence, you have a
         reasonable doubt as to any one or more of these elements, then it will be your
         duty to return a verdict that Jack Leek, 11 is not a sexually violent predator.

Clerk's Papers ( CP) at 1580 ( emphasis      added). The court further instructed the jury with

definitions on "
               mental




9
    Leek argues that his due process right to be present was violated when he was not allowed to be
physically present    for this reconsideration   hearing. Because we reverse and remand for the
petition's failure to give Leek adequate notice of the basis for the petition, we do not reach the
issue of whether due process required that Leek have had the opportunity to be physically
present at this hearing.
                                                   6
42573 4 II
      - -



                10
abnormality"             personality disorder. "
                     and "                          Leek made no objections to these instructions.

          The jury returned a verdict that the State had proved beyond a reasonable doubt that Leek

was an SVP. The court ordered Leek be committed to the Special Commitment Center. Leek

timely appeals.

                                                 ANALYSIS


1.        AUTHORITY TO FILE THE PETITION


          Leek first argues that the State did not have authority to file a petition against him under

the law in effect in 2008. Leek further argues that retroactively applying the law as amended in

2009 under which the State would have had authority to file the petitionwould deny him due
     —                                                                  —

process. But in Durbin, a recent case with facts analogous to those here, we held that the State

had authority under the 2008 law to file the SVP petition in question. 160 Wn. App. at 429. We

10
     Instruction 6 read:


                 Mental abnormality" means a congenital or acquired condition affecting
          the emotional or volitional capacity which predisposes the person to commit
          criminal sexual acts to a degree that makes the person a menace to the health and
          safety of others.
                     Volitional capacity"means the power or capability to choose or decide.

CP at 1582. This definition of " ental abnormality" substantially follows the language of the
                               m
statutory definition at RCW 71. 9. The statutory definition has been constant since the
                            020(
                               8
                               0 ).
legislature first enacted Washington's SVP laws. Compare LAWS OF 1990,ch. 3, § 1002, with
LAWS OF 2009, ch. 409, § 1 ( reflecting the most recent version of RCW 71. 9.
                                                                       020).
                                                                         0
11
     Instruction 7 read:


                     Personality disorder"means an enduring pattern of inner experience and
          behavior that deviates markedly from the expectations of the individual's culture,
          is pervasive and inflexible, has onset in adolescence or early adulthood, is stable
          over time and leads to distress or impairment.

CP at 1583.          This definition of " ersonality disorder" reflects verbatim the language of the
                                        p
statutory definition       at RCW 71. 9. The legislature added this definition to RCW
                                     020(   9
                                            0 ).
020 in
71. 9. 2009. See LAWS
  0                                 OF   2009, ch. 409, § 1.
                                                       7
42573 4 II
      - -




also held in Durbin that applying the 2009 law retroactively, which the legislature clearly had

intended, did   not violate due process.      160 Wn. App at 431.      Accordingly, the State was not

precluded here from filing the petition against Leek under either version of the law.
II.      DUE PROCESS RIGHT TO NOTICE


         Leek next argues that his statutory and due process right to notice was violated when the

trial court instructed the jury on an alternative means (personality disorder)not mentioned in the

petition alleging that Leek was an SVP. The State responds that Leek waived this argument by
not   challenging the instructions    at trial.   But instructing the jury on an alternative means not

alleged in the petition is a manifest constitutional error that Leek may raise for the first time on

appeal. We review such challenges raised for the first time on appeal more strictly against the

challenger, liberally construing the petition to see whether the apparently missing element can be

implied from the petition's language. Here, the missing alternative means (personality disorder)

cannot be implied from the petition even under the most liberal of constructions. Evidence that

Leek had a personality disorder was presented to the jury, and the jury was instructed that it

could use the existence of this condition -o find a necessary element of the State's casethat
                                          t

Leek had a mental illness. All necessary elements of the case, however, must appear in the SVP

petition to satisfy the due process requirement of notice. Because the State did not include the

personality disorder alternative to the mental illness element in its petition against Leek, we must
reverse and remand.


         A.      RIGHT TO NOTICE IN AN SVP PROCEEDING


         When the State files an SVP petition, the petition must "alleg[e]that a person is a

sexually   violent   predator   and   stat[ ] sufficient
                                          e                facts to support such   allegation." RCW



                                                       E
42573 4 II
      - -




030(
71. 9.And although SVP proceedings are civil, a person who is the subject of this kind
   1
   0 ).
of proceeding is nonetheless entitled to certain due process protections guaranteed by the

Fourteenth Amendment. Specht v. Patterson, 386 U. .605, 608 10,87 S. Ct. 1209, 18 L.Ed. 2d
                                                S           -

326 (1967); re Det. ofStout, 159 Wn.2d 357, 369, 150 P. d 86 (2007). right to notice is
          In                                          3            The
an essential requirement of due process that applies to civil as well as criminal proceedings. See

Downey v. Pierce County, 165 Wn. App. 152, 164, 267 P. d 445 (2011) essential principle of
                                                     3              (

due process is right to notice and a meaningful opportunity to be heard) citing Cleveland Bd. of
                                                                         (

Educ. v. Loudermill, 470 U. . 532, 542, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985)),
                          S                                                     review

denied, 174 Wn. d 1016 (2012).To ensure due process, the State must give pretrial notice with
              2                "

all necessary elements of the charge." In re Pers. Restraint of Benavidez, 160 Wn. App. 165,

171, 246 P. d 842 ( 2011) citations omitted). The existence of a mental abnormality or
          3               (

personality disorder from which a person suffers is an element the State must prove beyond a
reasonable doubt if that person is to be committed as an SVP. In re Det. ofPost, 170 Wn. d 302,
                                                                                       2

309 10,241 P. d 1234 (2010).Mental abnormality' and `personality disorder' are two distinct
    -       3               "`

means of establishing the mental illness element in SVP cases." In re Det. of Halgren, 156

Wn. d 795, 811, 132 P. d 714 (2006).Accordingly, if the State seeks to commit a person as an
  2                  3

SVP on grounds that he has a personality disorder, the State must allege that personality disorder

in the petition.




12 Former RCW 71. 9.2008),
              030 (
                0        under which the State filed its petition against Leck in Kitsap
County, had this same requirement.

13 " These commitment proceedings [of sex offenders] whether denominated civil or criminal are
subject ... to the Due Process Clause."Specht, 386 U. .at 608.
                                                    S
                                                 9
42573 4 II
      - -



         Leek clearly has a right to have pretrial notice in the petition of the necessary elements of

the State's SVP       allegation. The State must allege in the petition whether Leek has a mental

abnormality, a personality disorder, or both because the existence of such •a condition is a

necessary element in an SVP case. If the State failed to allege the existence of a personality

disorder in the petition, the State was not entitled to an instruction on personality disorder. If the

trial court instructed the jury that it could find that Leek was an SVP based upon a non -alleged

personality disorder, the court clearly violated Leek's due process right to know of and prepare

to defend himself against this allegation.

         B.       CHALLENGE FOR THE FIRST TIME ON APPEAL


         A party may raise a manifest error affecting a constitutional right for the first time on

appeal. RAP 2. (Because a challenge to the sufficiency of a charging document—
            a).
             5                                                               including,
as   here, an SVP petition —involves the constitutional due process right to notice, a party may

initially make the challenge to this court. See State v. Leach, 113 Wn. d 679, 691, 782 P. d 552
                                                                      2                  2

1989).When a party first challenges a charging document's sufficiency on appeal, we review

the challenge more strictly against that party by liberally construing the document in favor of its

validity.     State   v.   Kjorsvik,   117 Wn. d
                                             2     93, 105, 812 P. d 86 ( 1991). Included within this
                                                                 2


heightened standard of review are an essential -elements prong and an actual -prejudice prong.

Kjorsvik, 117 Wn. d at 105. Under the essential -elements prong, we review the document for
                2

language from which we can imply the allegedly missing element; if we cannot find any such

language, the challenging party prevails. Kjorsvik,           117 Wn. d at 106.
                                                                    2             If we do find such


language, but it is vague or inartful, then the challenging party, under the actual -prejudice prong,

has a second chance at prevailing if this language prevented the party from receiving actual

notice of the missing element. Kjorsvik, 117 Wn. d at 106.
                                               2
                                                       10
42573 4 II
      - -




          Because Leek's argument is that his constitutional due process right to notice was

violated when the court instructed the jury on a personality disorder an element not included in
                                                                      —
                                                                            14
the     petitionLeck
                —      may raise this issue for the first time   on   appeal.    We review the issue by,

first, liberally construing the petition for language that may imply this missing element.

          C.      ALTERNATIVE MEANS MISSING IN PETITION


          Under the liberal-
                           construction standard of review, the essential -elements prong is the first

prong that this court must consider by "look[ ng] to the face of the charging document itself"
                                            i

Kjorsvik, 117 Wn. d at 106. Citing Hagner v. United States, the court in Kjorsvik expounded
                2
on this standard with respect to elements apparently missing from the charging document:

           E]en if there is an apparently missing element, it may be able to be fairly
            v
           implied from language    within the   charging   document.    Many cases utilize the
          Hagner standard and hold that if the necessary facts appear in any form, or by a
           fair construction can be found within the terms of the charge, then the charging
           document will be upheld on appeal. Thus, when an objection to an indictment is
           not timely made the reviewing court has considerable leeway to imply the
           necessary allegations from the language of the charging document.

Kjorsvik, 117 Wn. d at 104 (citations omitted).Merely giving the name of the offense and citing
                2

to the proper statute, however, insufficiently charges an offense unless its name apprises the
                                      16
accused of all essential elements.         State v. Vangerpen, 125 Wn. d 782, 787, 888 P. d 1177
                                                                     2                  2

1995).



14 Because we reverse on grounds that Leek's constitutional due process right to notice was
violated, we do not address Leek's argument that his statutory right to notice was also violated
when the trial court instructed the jury on a personality disorder not alleged in the petition. We
note, however, that, as a non -constitutional issue, Leck may have waived this argument when he
failed to object to this instruction at trial.

    285 U. . 427, 433, 52 S. Ct. 417, 76 L.Ed. 861 (1932).
         S
16 "[
  D]     efendants should not have to search for the rules or regulations they are accused of
violating."City ofAuburn v. Brooke, 119 Wn. d 623, 635, 836 P. d 212 (1992).
                                            2                   2
                                                    11
42573 4 II
      - -




       With respect to the essential -elements prong here, the State made no explicit mention

within the SVP petition of any personality disorder, alleging as the mental -illness element only

Leek's mental abnormality (pedophilia). Where two alternative means of meeting the mental-

illness element are available, but the State unequivocally alleges only one in the petition, the

other simply cannot be read into the petition.

       At the beginning of the petition, the State did allege that Leck was an SVP as defined in

former RCW     020( 6).
               71. 9. This
                  1
                  0                       definition does include the " mental abnormality or

personality disorder" alternatives. But this definition is not included in the petition's text. And

the petition goes on to specifically mention mental abnormality, clarifying that this abnormality

is the sole allegation put forth to meet the mental -illness element. Nothing else in the petition

even suggests using a personality disorder as grounds for committing Leck as an SVP. Because

the petition fails under the essential -elements prong, we do not need to consider the actual -

prejudice prong. We therefore reverse and remand. On remand, the State may either file a new

SVP petition against Leck or amend the 2008 petition for a new commitment eceefing.
                                                                          - ,'



                                                             Pf   no   I --


IV,nnnrnr




    Bjo Kn,J.

17 This definition is now at RCW 71. 9.
                                 020( 8).
                                    1
                                    0
                                                 12
