 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON                                      rn _




In the Matter of the Detention of                                                 CO     -i-u'|'

                                                  No. 70750-7-1                   k %£.
DENNIS WAYNE BREEDLOVE,                                                           kj~>   } '•", tr>
                                                  DIVISION ONE                    ^      ^o
                     Respondent.
                                                  UNPUBLISHED OPINION



                                                  FILED: May 18, 2015


       Trickey, J. — An individual confined as a sexually violent predator (SVP)

must present sufficient evidence that he has "so changed" to obtain an

unconditional release trial. Here, the petitioner relies on a report that does not

meet the necessary criteria to establish a sufficient change such that a release trial

should be granted. Accordingly, we reverse the trial court's decision granting an

unconditional release trial.

                                       FACTS


       Dennis Breedlove is confined as a sexually violent predator (SVP) under

chapter 71.09 RCW, Washington's SVP statute. That statue requires annual

review of an SVP status. RCW 71.09.070(1). Breedlove's annual reviews, since

his commitment in 2004, have supported his continued detention. In June 2011,

the trial court found that Breedlove continued to meet the criteria for commitment

as an SVP and that he failed to present prima facie evidence that his progress

warranted an unconditional release trial. Breedlove did not demonstrate that a
No. 70750-7-1 / 2


less restrictive alternative (LRA) was in his best interest or that conditions could be

imposed that would adequately protect the community.1

       On January 28, 2013, the Special Commitment Center (SCC) completed

another review pursuant to RCW 71.09.070(1).              In that review, Wendi L.

Wachsmuth, Ph.D, opined that Breedlove continued to meet the criteria for

commitment as an SVP and that no less restrictive alternatives could be imposed

that would adequately protect the community, nor would such restrictions be in

Breedlove's best interest.      Dr. Wachsmuth cited specific examples of failed or

ignored treatment along with a history of malfeasance at the SCC.

       In 2012, Breedlove retained Christopher J. Fisher, Psy.D to assess his

current condition. Dr. Fisher noted that since Breedlove's commitment in 2004, he

"only participated in two brief periods offocused sex offender treatment."2 In 2007,
Breedlove was a "stellar participant" in a 12-week introductory group, "Awareness

and Preparation."3 Breedlove did not continue into the Cohort group at that time.

       In early 2009 he started a Cohort group, but only stayed in the group for

approximately one month. Three years later, in March 2012, Breedlove completed

a 12- or 24-week "Biblical Counseling Foundation Self Confrontation Course"

designed to assist individuals in changing their cognitive thoughts, feelings, and
behaviors based on biblical principles.4 After receiving a behavioral management

report for marijuana possession, Breedlove attended a "Counselor Assisted Self



1 The Mack House (the LRA) does not provide adequate supervision for an
untreated high-risk sex offender.
2 Clerk's Papers (CP) at 168.
3 CP at 168.
4 CP at 169.
No. 70750-7-1 / 3


Help Group," in 2008 through 2009, where he was described to be diligently

working on sobriety, including the relationship between his drug addiction and

sexual offending.5

        Dr. Fisher noted and agreed with the most recent annual review that

focused on "Breedlove's mental disorder, namely pedophilia, and states that there

is little indication that his mental disorder has changed since his initial

commitment."6

            Dr. Fisher set forth the definition of "pedophilia" in the Diagnostic and

Statistical Manual of Mental Disorders, Fourth Edition, Text Revision (DSM-IV-TR)

and had "little doubt" that Breedlove "continue^] to show evidence of pedophilia"

as defined in DSM-IV-TR.7 Even so, Dr. Fisher criticized the annual review for its

failure to address the considerable changes that have occurred in the field of sex

offender risk assessment. Those changes, he opines, form the basis to judge

Breedlove's risk level as quite different now from when he was first committed. As
an example, he cited a 2003 chapter 71.09 RCW evaluation performed by Dr.
Packard that used what Dr. Fisher described as outdated and obsolete

methodologies and a "gross simplification" of an adequate sex offender risk
assessment.8

            Dr. Fisher concluded that Breedlove no longer met the definition of an SVP

"by virtue of the changes he has made in himself through treatment and a
generalized maturational process over the last 12 years, combined with wholesale

5 CP   at   170.
6 CP   at   184.
7 CP   at   186.
8 CP   at   184.
No. 70750-7-1 / 4



changes in the field of risk assessment and large amounts of new empirical data

now available that was not available at the time of his initial commitment."9

       After review of the documents and oral argument, the trial court issued the

following order:

       [Pursuant to RCW 71.09.080 the court finds Mr. Breedlove has
       shown cause to schedule a trial on (1) whether he has changed [and]
       that he no longer meets criteria of a sexually violent predator; and (2)
       whether he should be released to a less restrictive alternative.[10]

       The trial court denied the State's motion to reconsider the order granting

Breedlove an unconditional release trial. The State does not object to a trial on

whether Breedlove should be released to a less restrictive alternative.

       The State filed a motion for discretionary review arguing that the trial court

committed obvious error in granting a release trial when Breedlove showed no

evidence of change under the statutory criteria. The State also argued that the

statutory term "treatment" is limited to sex offender specific treatment and the trial

court erred in failing to support the State's interpretation.

       A commissioner of this court agreed that the lack of evidence of change in

Breedlove's mental condition of pedophilia warranted discretionary review, but

found the trial court's rejection of the State's statutory interpretation of the term

"treatment" did not. Accordingly, the commissioner granted discretionary review

as to only whether the trial court erred in granting an unconditional release trial on

the basis that Breedlove had changed.




9 CP at 186.
10 CP at 10.
No. 70750-7-1 / 5


                                   ANALYSIS

      A sexually violent predator is defined 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."
RCW 71.09.020(18). The standard for "[Ijikely" is "more probably than not." RCW

71.09.020(7).

       Because indefinite civil commitment gives rise to serious constitutional

concerns, the SVP statute contains certain procedural safeguards, including

mandating annual order toshow cause hearings under RCW 71.09.090. At a show
cause hearing, the State must make a prima facie case that the individual still
meets the criteria of an SVP. The SVP also has the opportunity to present

evidence that they have "so changed" since the time of their commitment to
warrant a new full evidentiary hearing or a new commitment trial. In re Meirhofer,
_ Wn.2d _, 343 P.3d 731 (2015); In re Pet, of Petersen, 145 Wn.2d 789, 798,
42 P.3d 952 (2002). The trial court may not weigh the evidence, but rather must
simply determine whether sufficient evidence has been presented to establish
probable cause that the SVP's continued civil commitment is unlawful. Petersen,
145 Wn.2d at 797-98 ("Probable cause exists if the proposition to be proven has
been prima facie shown."); In re Pet, of Ambers, 160 Wn.2d 543, 557, 158 P.3d
 1144(2007).

        Each year, as required by statute, the State had a qualified professional
 review Breedlove's mental condition to determine whether or not his confinement
No. 70750-7-1 / 6


was still warranted. RCW 71.09.070(1); WAC 388-880-031. Under the statutory

scheme, after each annual review, a show cause hearing is held to determine

whether probable cause exists for a new evidentiary hearing on the civil

commitment. RCW 71.09.090(1 ),(2)(a). The court must order a new evidentiary

hearing if, at the annual show cause hearing, the State fails to 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

warranted. RCW 71.09.090(2)(a)-(c). In making this showing, the State can rely

exclusively on the annual review report. RCW 71.09.090(2)(b).
       Even if the State meets its prima facie burden, the confined person may still

obtain a new evidentiary hearing if the court determines that "probable cause exists
to believe that the person's condition has so changed," that he is no longer a
sexually violent predator, or that a less restrictive alternative than full confinement
is appropriate. RCW 71.09.090(2)(c). Apart from the annual review process, the
confined person may independently petition the court for release atany time. RCW
71.09.090(2)(a); WAC 388-880-050(3)(b).

       As a result of legislation in 2005, the confined person cannot establish
probable cause merely by showing advancing age or any other "single
demographic change." RW 71.09.090(4)(c). If the State satisfies its prima facie
burden, a full evidentiary hearing is available only upon a showing that the confined
 person has undergone either (1) a profound and permanent physiological change,
such as a stroke, paralysis, or dementia, potentially rending him no longer
 dangerous; or (2) a profound mental change by receiving psychological treatment
No. 70750-7-1 / 7


services during confinement—potentially rendering him no longer mentally ill.

RCW 71.09.090(4)(b)(i),(ii); State v. McCuistion. 174 Wn.2d 369, 392, 275 P.3d

1092 (2012), cert, denied. _ U.S._, 133 S. Ct.1460, 185 L. Ed. 2d 368 (2013).

      This court reviews de novo a trial court's legal conclusion as to whether

evidence meets the standard of probable cause required for a sexually violent

predatorto obtain a newcommitment trial. Petersen, 145Wn.2d at 799. The court

must order a full evidentiary hearing on the person's civil commitment if the court

finds either (1) a deficiency in the State's prima facie case for continued
commitment, or (2) sufficiency of proof by the committed person that he has "so
changed" that he no longer meets the criteria for a sexually violent predator. RCW
71.09.090(2)(c); see Petersen, 145 Wn.2d at 798.

       As to the first issue, no one claims the State's evidence is deficient. As to

the second issue, Breedlove's own evidence is insufficient to show that he has "so
changed" that confinement is no longer warranted. Dr. Fisher's report failed to
identify a substantial change in Breedlove's mental disorder, pedophilia. His report
stated:

          The most recent Annual Review focuses on Mr. Breedlove's mental
          disorder, namely pedophilia, and states that there is little indication
          that this mental disorder has changed since his initial commitment. I
          agree with this finding.!111
          Dr. Fisher contends that Breedlove's risk level should be judged differently

in light of changes in sexual recidivism risk assessment, including research
findings of age as a protective factor and declining base rates of sexual recidivism
 in the country.      Dr. Fisher criticized the risk assessment method used for

 11 CPat184.
No. 70750-7-1 / 8


Breedlove's initial commitment and opined that Breedlove's risk score at his initial

commitment is "now associated with dramatically lower recidivism estimates."12
       Essentially, Dr. Fisher challenges the initial commitment finding that
Breedlove met the criteria for an SVP. This issue was recently addressed in

McCuistion, where the Supreme Court held that evidence from a detainee that he
was not and had never been mentally ill, would not support relief through the

annual review process because it was in effect a collateral attack on the initial order
of commitment. 174 Wn.2d at 386. The initial finding is "a verity in determining
whether an individual is mentally ill and dangerous at a later date." McCuistion,
174 Wn.2d at 384-85. The 2005 amendments are "intended only to provide a
method of revisiting the indefinite commitment due to a relevant change in the
person's condition, not an alternative method of collaterally attacking a person's
indefinite commitment for reasons unrelated to a change in condition." Laws of

2005, ch. 344, §1.

        Dr. Fisher's report did not identify any evidence demonstrating that
 Breedlove had experienced a substantial change. As the report noted:
        [l]n examining the considerable changes to the field of sex offender
        risk assessment that have occurred since Mr. Breedlove's initial
        commitment, as well as the changes that he himself has undergone,
        it is far too simplistic to say that because he was once found to be an
        SVP, he still meets criteria today.'131
 Dr. Fisher's conclusory opinion is that Breedlove never was an SVP. Dr. Fisher's
 report did state that Breedlove had changed through treatment, but failed to
 substantiate that statement with any evidence of that change. Indeed, the

 12 CP at 185.
 13 CP at 184.


                                             8
No. 70750-7-1 / 9



evidence is conflicting as to whether the treatment was 12 or 24 weeks long. No

specific evidence of the content of the meetings was presented.          Further, the

awareness program that Breedlove did complete was merely an informational

course about the treatment offered.

         The trial court "must look beyond an expert's stated conclusions to

determine if they are supported by sufficient facts." In re Pet, of Ward, 125 Wn.

App. 381, 387, 104 P.3d 747 (2005), superseded bv statute on other grounds as

recognized bv McCuistion, 174 Wn.2d at 397-98. The State put forth evidence

that Breedlove continued to show sexual interest in children even when he was in

custody.

         Pr. Fisher's report fails to cite any changes that Breedlove has made.

Attending a group based on "biblical principles" does not demonstrate change. It

only demonstrated participation.

         Because Breedlove has failed to demonstrate any change, we need not and

do not discuss whether the trial court appropriately defined treatment. The trial

court's decision to grant an unconditional release trial is reversed; the less
restrictive alternative trial may proceed by agreement of the parties.




                                             fT^i/ko^i , -J
WE CONCUR:
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