IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

In the Matter of the Detention of          )
                                           )       No. 69626-2-1
MICHAEL PITTMAN,                           )
                                           )       DIVISION ONE
                     Appellant.            )
                                           )       UNPUBLISHED OPINION
                                           )
                                           )       FILED: March 10, 2014


       Grosse, J. — Michael Pittman challenges his commitment as a sexually

violent predator (SVP) under chapter 71.09 RCW. He claims that he received

ineffective assistance of counsel during his commitment hearing because his

attorney failed to object to a jury instruction permitting the jury to find that Pittman

was likely to engage in acts of indecent liberties upon an incapacitated victim.

The State concedes that this instruction misstated the law and that counsel's

performance was deficient in failing to object to this instruction. Because Pittman

fails to show that counsel's deficient performance prejudiced him, we affirm.
                                                                                     ^—i   *- - L~'
                                        FACTS                                        =     -c:


       In 1997, Pittman, who was 32 years old at the time, befriended the fanSy o-.
                                                                                     CD     rS£c
of an 11-year-old boy. Pittman took the boy to a secluded area, and aftej £n
drinking alcohol and playing a "farting game" with the boy, fellated the boy whtfe    CO    o-


masturbating. When police arrested Pittman, they found clippings in his wallet

depicting boys in the same age range. On April 7, 1999, a jury convicted Pittman
No. 69626-2-1 / 2


of rape of a child in the first degree. The court sentenced him to 147 months of

confinement.


      On September 10, 2010, shortly before Pittman's release date, the State

filed a petition alleging that Pittman is an SVP as defined in chapter 71.09 RCW.

On November 22, 2010, the court ordered him transported to the Special

Commitment Center on McNeil Island.


       Dr. Lyne Piche, a licensed psychologist who specialized in evaluating sex

offenders, conducted SVP evaluations of Pittman.        To evaluate Pittman, she

reviewed his criminal history, health information, court documents, and

documents from the Department of Corrections.           She also spoke with his

caseworker and reviewed past psychiatric and psychological assessments.

Piche also interviewed Pittman.

       Piche found that Pittman suffers from pedophilia and antisocial personality

disorder that cause him serious difficulty controlling his sexually violent behavior

and make him more likely to engage in predatory acts of sexual violence unless

he is confined in a secure facility.   In forming her opinion, Piche considered

information related to Pittman's 1999 conviction and also documentation related

to two instances of reported but unadjudicated instances of Pittman's sexual

misconduct with young boys that occurred between 1990 and 1993.

       In one instance, after offering to provide a 12-year-old boy with drugs and

alcohol, Pittman played a "farting game" with the boy and asked the boy to rub

his penis on Pittman while Pittman masturbated. The State charged him with

child molestation in the second degree, but he was not convicted.
                                         2
No. 69626-2-1 / 3


          In another instance, Pittman befriended the family of a 10-year-old boy.

While babysitting the boy, Pittman entered his room and fondled his genitals

while the boy pretended to sleep. This occurred about two times per week for

approximately one year. Police investigated this incident, which the boy did not

report until he was 17 or 18 years old, but the State did not charge Pittman.

          To form her opinions, Piche also relied upon Pittman's behaviors while in

prison.      Despite a court order prohibiting Pittman from contacting minors,

developing relationships with females with minor children, or possessing any

depictions of minors, Pittman kept photographs in his cell depicting minor males,

contacted females in the community to ask about their children, and requested

cell moves to live with younger inmates. He kept a scrapbook that he made

containing photographs of children ages 5 to 14, articles about missing children,

child movie characters, nude photographs of children, and photographs from

advertisements for children's underwear. He kept a book with the "basic subject"

of "baby rape and child rape." Pittman also sought pamphlets from a children's

museum that depicted children walking through the museum. He also received

in the mail, packages from organizations that contained photographs of children.

Additionally, Pittman kept city maps in his cell color coded to indicate the

locations of daycare centers, Head Start programs, and elementary schools.

Pittman wrote letters to a woman with two small children, asking about the

children's ages, what the children looked like, what clothing they liked to wear,

and the types of activities they enjoyed. Further, he kept materials from the

North American Man/Boy Love Association, a photograph depicting an
                                           3
No. 69626-2-1 / 4


elementary school class, and a drawing depicting a nude adult male and a young

boy embracing.      Pittman received routine sanctions for possessing these

materials.


       Piche also considered Pittman's behavior while he stayed at the Special

Commitment Center after the State filed the SVP petition and he awaited trial.

He kept cutout pictures of children ages 8 to 12, pictures of families, pictures of

children "spending the night over in sleeping bags," a phonebook containing

depictions of minors, and drawings depicting "vaginas and penises on a fence,"

and also a drawing depicting a man holding a gun.         He also kept magazine

clippings depicting young boys and index cards containing information about

child actors. A security guard observed Pittman watching and replaying movie

scenes depicting adolescents.

       To determine if Pittman was likely to engage in predatory acts of sexual

violence if not confined to a secure facility, Piche assessed Pittman's risk using

two actuarial instruments that provided a baseline indication of recidivism risk.

Considering the results of the actuarial instruments, as well as dynamic risk

factors and psychopathy, Piche concluded that Pittman's risk to reoffend was

high and that he met the criteria for commitment as an SVP.

       Pittman presented no witnesses, nor did he testify at trial. On November

8, 2012, a jury found that the State proved beyond a reasonable doubt Pittman is

an SVP.      The court entered an order committing Pittman to the Special

Commitment Center.


       Pittman appeals.
No. 69626-2-1 / 5


                                    ANALYSIS


       Indecent liberties requires proof that a person "knowingly causes another

person who is not his or her spouse to have sexual contact with him or her or

another. . . [b]y forcible compulsion"1 or "[wjhen the other person is incapable of

consent by reason of being mentally defective, mentally incapacitated, or

physically helpless."2 Forcible compulsion is "physical force which overcomes

resistance, or a threat, express or implied, that places a person in fear of death

or physical injury to herself or himself or another person, or in fear that she or he

or another person will be kidnapped."3

       Pittman claims that he received ineffective assistance of counsel because


defense counsel failed to object to jury instruction 15, which defined indecent

liberties by forcible compulsion:

             A person commits the crime of indecent liberties by forcible
       compulsion when he knowingly causes another person who is not
       his spouse to have sexual contact with him or another by forcible
       compulsion, or when the other person is incapable of consent by
       reason of being mentally defective or mentally incapacitated, or
       when the other person is incapable of consent by reason of being
       physically helpless.[4]


1 Former RCW 9A.44.100(1)(a) (2007).
2 Former RCW 9A.44.100(1)(b) (2007).
3RCW9A.44.010(6).
4 11 Washington Practice: Washington Pattern Jury Instructions: Criminal
49.01, at 182 (3d ed. Supp. 2011) states:
       A person commits the crime of indecent liberties when he or she
   knowingly causes another person who is not [his] [her] spouse or
    registered domestic partner to have sexual contact with [him] [her]
       [by forcible compulsion] [or]
       [when the other person is incapable of consent by reason of being
       mentally defective or mentally incapacitated] [or]
       [when the other person is incapable of consent by reason of being
       physically helpless][.]
                                          5
No. 69626-2-1 / 6


Pittman asserts,

             The court's instruction is an erroneous statement of the law.
      Because only indecent liberties by forcible compulsion is "sexual
      violence," the single sentence that makes up instruction 15 should
      have ended before the first "or." By expanding the types of conduct
      that make up indecent liberties by forcible compulsion, the trial
      court improperly lessened the State's burden of proving Pittman
      was "likely to engage in predatory acts of sexual violence if not
      confined in a secure facility."
             Stated another way, the expanded definition of forcible
      compulsion gave the jury the option of finding Pittman was likely to
      engage in acts of indecent liberties upon an incapacitation victim,
      which would not be possible under the more narrow definition.

      Claims of ineffective assistance of counsel are mixed questions of law and

fact, which we review de novo.5 To prevail, a defendant must show (1) that

counsel's performance fell below an objective standard of reasonableness based

on a consideration of all the circumstances and (2) that the deficient performance

prejudiced the trial.6      The reasonableness inquiry presumes effective

representation and requires the defendant to show the absence of legitimate

strategic or tactical reasons for the challenged conduct.7 To show prejudice, the

defendant must prove that but for the deficient performance, there is a

reasonable probability that the outcome would have been different.8 Sufficient



5 In re Pers. Restraint of Fleming. 142 Wn.2d 853, 865, 16 P.3d 610 (2001).
Generally, when an appellant did not object at trial, we will not consider an
alleged instructional error unless the appellant first demonstrates that the error is
a "manifest error affecting a constitutional right." RAP 2.5(a)(3). But because
Pittman also argues that his trial counsel was ineffective for failing to object to
this instruction, we address these arguments regardless of whether they are
manifest errors affecting a constitutional right. See State v. Gerdts, 136 Wn.
App. 720, 726, 150 P.3d 627 (2007).
6 State v. Nichols. 161 Wn.2d 1, 8, 162 P.3d 1122 (2007).
7 State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251 (1995).
8 In re Pers. Restraint of Pirtle. 136 Wn.2d 467, 487, 965 P.2d 593 (1998).
                                         6
No. 69626-2-1 / 7


jury instructions permit each party to argue its theory of the case and properly

inform the jury ofthe applicable law.9

       The State concedes that the challenged instruction misstated the law and

that defense counsel's performance was deficient because he failed to object to

this erroneous instruction. Pittman does not challenge any of the court's other

jury instructions.

       Pittman alleges that counsel's deficient performance prejudiced his trial

because Pittman "purportedly showed a willingness to repeatedly fondle a boy

who at least appeared physically helpless." He cites State v. Puapuaaa,10 in
which we held that a sleeping victim is "physically helpless" for the purpose of

establishing the crime of indecent liberties.

       Piche testified, "My opinion is that, yes, that the likelihood of future

offending would likely parallel past offending which had to do with Mr. Pittman

getting to know families with young boys, spending time with boys, and working

towards sexually offending them." The court provided a limiting instruction to the

jury not to consider for the truth of the matters asserted the underlying file

information that Piche cited, but only to determine her credibility.

       Pittman claims, "The court's improperly expanded definition of indecent

liberties by forcible compulsion added weight to Piche's opinion regarding

likelihood of reoffense. Additionally, regardless of the limiting instruction, it is




9 State v. Rilev, 137 Wn.2d 904, 909, 976 P.2d 624 (1999) (quoting State v.
Bowerman, 115 Wn.2d 794, 809, 802 P.2d 116 (1990)).
1054Wn. App. 857, 860, 776 P.2d 170 (1989).
                                          7
No. 69626-2-1 / 8


reasonable to believe the details of the purported molestation of the 'sleeping'

boy influenced the jury to Pittman's detriment."

       Pittman fails to show that the outcome of his trial would have been


different if counsel objected to the improper jury instruction. The State presented

overwhelming evidence of Pittman's ongoing fascination with young males, even

while incarcerated.    At trial, Pittman presented no evidence that he had an

interest in sexual contact with adults who were mentally defective, mentally

incapacitated, or physically helpless. And neither party at any point argued that if

released, he was likely to reoffend in this manner.

       During closing arguments, neither party referenced the improper jury

instruction, or otherwise suggested that Pittman was likely to reoffend by having

sexual contact with a mentally defective, mentally incapacitated, or physically

helpless person. And despite the improper instruction, Pittman was able to argue

his theory of the case that the instruments and information upon which Piche

relied were not reliable. Because Pittman fails to show a reasonable probability

that but for defense counsel's deficient performance, the outcome would have

been different, he fails to establish ineffective assistance of counsel.

                                   CONCLUSION


       Because Pittman fails to show a reasonable probability that but for his

attorney's deficient performance in failing to object to the court's improper jury




                                          8
No. 69626-2-1 / 9


instruction, the outcome of his trial would have been different, we affirm.




WE CONCUR:




^Qic-o~< >\J ,                                        jLs.e
