      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
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                                                                                      en
IN THE MATTER OF THE DETENTION                                                        C

OF:                                         )      No. 71460-1-1
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                                                                                      CO
                                            )      DIVISION ONE
                                                                                               oornl—'

RICHARD ALLEN RUDE, JR.,                    )      UNPUBLISHED OPINION                up       r-slf)



                                                                                      ro
                     Appellant.
                                            )      FILED: June 8, 2015

       Spearman, C.J. —A person committed as a sexually violent predator may

petition a court for conditional release to a less restrictive alternative (LRA). At a trial on
the petition, the State bears the burden of proving beyond a reasonable doubt that the
LRA is not in the committed person's best interest or does not include conditions to

adequately protect the community. RCW 71.09.090(3)(d). Because the State in this
case proved that releasing Richard Rude to his proposed LRA was not in his best               ST1AT0SHCOURT
interest, we affirm the trial court's denial of Rude's LRA petition.
                                                                                                      DIVi
                                            FACTS

       Based on Rude's history of sexually violent offenses, the State petitioned to have

him committed as a sexually violent predator (SVP). In June 2012, a jury determined

that Rude is a SVP and he was civilly committed.

       On July 24, 2013, Rude petitioned for a LRA. The State conceded that because
the court had not previously considered a LRA for Rude, he was not required to show
No. 71460-1-1/2



that his condition had changed in order to receive a LRA trial. The State also conceded

that Rude met the statutory criteria for a LRA trial and agreed to a trial on stipulated

facts. Those facts included evidence from Rude's commitment trial and the results of his

most recent annual review.1 The reviewer, Dr. Steven Marquez, found that Rude is at

"High risk" to reoffend, ranking in the 99.9 percentile of adult sex offenders for re-

offense. Clerk's Papers (CP) at 105. That risk is compounded by Rude's avoidance of

treatment, which includes "the established process of transparently examining his risks,

constructing viable intervention strategies and effectively practicing them under clinical

supervision." CP at 109.

        At trial, the parties disagreed on the effect of the following emphasized language

inRCW71.09.090(2)(d):


      1 We recounted some of that evidence in our unpublished decision affirming Rude's SVP
commitment, stating in part:

            At 18, [Rude] forcibly raped a 16 year old girl with another man while
       intoxicated. Rude and his friend took turns holding the girl down while the
       other raped her. ...
           While out of custody and awaiting admittance at [Western State
       Hospital], Rude sexually assaulted a woman he drove home in a taxi cab. .

           After about a year at WSH, Rude was accused of trying to force
       another patient to perform oral sex on him. Rude admitted to punching the
       man . . . .

            In June 1994, after Rude's release from prison, he committed another
       rape. The victim was in the Skagit Speedway parking lot and had lost track
       of her friend. Rude offered to drive her around to look for her friend, but
       once she got in his truck, he sped away to a remote gravel pit. Rude made
       the victim take off her shirt and told her to perform oral sex. When she
       refused, Rude punched her in the face. Rude then raped her orally,
       vaginally, and anally. . . .
            In August 2008, Rude's cellmate, John Frost, reported that Rude
       sexually assaulted him. Frost claimed that they had an altercation that led
       to Rude "shadow boxing" him. Frost tried to push Rude away, but Rude
       grabbed Frost, pulled Frost down on his bed, and "shoved his fingers in
       [Frost's] ass." Frost struggled and eventually kicked over Rude's television,
       breaking it. Rude then became angry and hit Frost in the face. Rude was
       charged with an infraction for assaulting Frost.

In re Detention of Rude, 179 Wn. App. 1011, review denied, 180Wn.2d 1017(2014). (Footnotes omitted.
No. 71460-1-1/3



              If the court has not previously considered the issue of
       release to a less restrictive alternative ... the court shall
       consider whether release to a less restrictive alternative would
       be in the best interests of the person and conditions can be
       imposed that would adequately protect the community, without
       considering whether the person's condition has changed.
       (Emphasis added.)

Rude's counsel claimed this language applied to the LRA trial, precluded the court from

considering Rude's lack of treatment, and limited it to considering whether his LRA plan

was in his best interests and adequately protected the community. The State offered a

different view of the statute:

       ... we completely disagree on what this statute says. But when
       you look at it, this whole thing about the Court not considering
       whether the person has changed, if you look at the statute, look
       at subsection (2), and then you look at subsection (3), it's very
       clear that that is the initial. . . burden that they need.
               The Court, in order to get to this trial, does not have to
       consider whether the person has changed, but once we get to
       the trial, it's absolutely relevant. It's absolutely relevant to his
       risk to the community safety, to everything.

Verbatim Report of Proceedings (VRP) at 82. The State argued that Reed's proposed

LRA was "a good plan for someone that has progressed and has gotten to the level in

treatment where this would be safe for everyone" but was inappropriate "for someone at

the level [Rude is] at, which is completely refusing to do treatment." VRP at 81.

       The court denied Rude's request for a LRA and entered findings of fact and

conclusions of law. The court found that Rude had not participated in sex offender

treatment since his commitment in 2010, disagreed with important aspects of his

treatment plans, including his diagnoses and risk factors, and would not participate in

group therapy out of concern that any information he disclosed would be used against

him. The court noted the long-term risk factors identified in Rude's annual review,
No. 71460-1-1/4



including "sexualized violence, sexual preoccupation, lack of emotional intimate

relationships with adults, grievance thinking, poorly-managed anger, resistance to rules

and supervision, and dysfunctional coping."2 The court found that these risks were

compounded by Rude's refusal to participate in treatment.3 The court added that "Rude

wants to manipulate and control his environment such that any treatment he receives is

on his own terns."4 Based on these findings, the court concluded as follows:

                The Court recognizes that it has the authority to grant an LRA
        in this case despite the fact that Mr. Rude is not participating in sex
        offender treatment at the SCC. The Court also recognizes that it has
        the authority to grant an LRA in this case despite the fact that there
       has been no change in Mr. Rude's mental condition since his
       commitment. However, the Court finds that Mr. Rude's history of
       treatment participation and his attitude towards treatment is relevant
       to his overall risk to the community and relevant to whether an LRA is
       in his best interests or will adequately protect the community.
               The Court finds that the proposed LRA is not appropriate at this
       time for Mr. Rude given his sexual offending history, his lack of
       transparency and poor participation in SOTP, his lack of
       understanding of his offending patterns, risks, and interventions, his
       disagreement with his diagnosed disorders and risk factors, and his
       ongoing refusal to address any of these issues in sex offender
        treatment.


              The evidence . . . proves beyond a reasonable doubt that the
        proposed LRA is not in Mr. Rude's best interests and does not include
        conditions that would adequately protect the community.5

Rude appeals.




       2 Finding of Fact 17. CP at 799.

        3!d\

        4 Finding of Fact 18. CP at 780

      5 Findings of Fact 19 and 20; Conclusion of Law 3. CP at 800-01. Conclusions of law
denominated as findings of fact will be treated as conclusions of law. State v. Gaines, 122 Wn.2d 502,
508, 859 P.2d 36 (1993).
No. 71460-1-1/5



                                         DECISION


       Rude contends the State did not carry its burden of showing, beyond a

reasonable doubt, that his proposed LRA was not in his best interests or that adequate

conditions could not be imposed to protect the community.6 He contends the State's

proof, and the court's decision, relied largely on evidence that could not be considered

under RCW 71.09.090(2)(d). We disagree.

       When construing a statute, we first examine the statute's plain meaning. State v.

Bunker, 169 Wn.2d 571, 578, 238 P.3d 487 (2010). We determine a statute's plain

meaning from the ordinary meaning of its language, as well as from the statute's

general context, related provisions, and the statutory scheme as a whole. State v.

Jacobs, 154 Wn.2d 596, 600, 115 P.3d 281 (2005). If the statute's meaning is plain, we

give effect to that meaning. Id. RCW 71.09.090 (2)(3) provide in pertinent part as

follows:

          (2)(a) Nothing contained in this chapter shall prohibit the person
       from otherwise petitioning the court for conditional release to a less
       restrictive alternative or unconditional discharge without the
       secretary's approval. The secretary shall provide the committed
       person with an annual written notice of the person's right to petition
       the court for conditional release to a less restrictive alternative or
       unconditional discharge over the secretary's objection. The notice
       shall contain a waiver of rights. . .. If the person does not
       affirmatively waive the right to petition, the court shall set a show
       cause hearing to determine whether probable cause exists to
       warrant a hearing on whether the person's condition has so
       changed that: (i) He or she no longer meets the definition of a
       sexually violent predator; or (ii) conditional release to a proposed
       less restrictive alternative would be in the best interest of the person
       and conditions can be imposed that would adequately protect the
       community. (Emphasis added.)




   6RCW71.09.090(3)(d).
No. 71460-1-1/6



          (b).. . At the show cause hearing, the prosecuting agency shall
       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 in the best interest of the
       person and conditions cannot be imposed that adequately protect
       the community. In making this showing, the state may rely
       exclusively upon the annual report prepared pursuant to RCW
       71.09.070. The committed person may present responsive affidavits
       or declarations to which the state may reply.

           (c) Ifthe court at the show cause hearing determines that either:
       (i) The state has failed to present prima facie evidence that the
       committed person continues to meet the definition of a sexually
       violent predator and that no proposed less restrictive alternative is in
       the best interest of the person and conditions cannot be imposed
       that would adequately protect the community; or (ii) probable cause
       exists to believe that the person's condition has so changed that:
       (A) The person no longer meets the definition of a sexually violent
       predator; or (B) release to a proposed less restrictive alternative
       would be in the best interest of the person and conditions can be
       imposed that would adequately protect the community, then the
       court shall set a hearing on either or both issues. (Emphasis added.)

           (d) If the court has not previously considered the issue of release
       to a less restrictive alternative, either through a trial on the merits or
       through the procedures set forth in RCW 71.09.094(1), the court
       shall consider whether release to a less restrictive alternative would
       be in the best interests of the person and conditions can be imposed
       that would adequately protect the community, without considering
       whether the person's condition has changed. The court may not
       find probable cause for a trial addressing less restrictive alternatives
       unless a proposed less restrictive alternative placement meeting the
       conditions of RCW 71.09.092 is presented to the court at the show
       cause hearing. (Emphasis added.)

          (3)(a) At the hearing resulting from subsection (1) or (2) of this
       section, the committed person shall be entitled to be present and to
       the benefit of all constitutional protections that were afforded to the
       person at the initial commitment proceeding.

Rude contends the emphasized language in subsection (2)(d) prohibits a court from

considering "an offender's participation and progress in treatment" at trial on a first
No. 71460-1-1/7



petition for a LRA. Brief of Appellant at 20. This contention is flawed in several

respects.

        First, the location and last sentence of subsection (d) indicate that the

emphasized language applies to the show cause hearing, not the LRA trial, and that it

merely allows a court to grant a trial without the normal showing that the committed

person's condition has changed. Second, even if the language applies to the LRA trial, it

does not limit the court's inquiry in the manner Rude suggests. Prohibiting a court from

considering whether a person's "condition has 'so changed'" only precludes considering

whether there has been "a substantial change in the person's physical or mental

condition." RCW 71.09.090(4)(a). It does not prohibit a court from considering

treatment-related behaviors bearing on that person's suitability for a LRA, including the

person's attitude toward, or behavior in, treatment.7

       This reading of the statute is consistent with, and supported by, a related

provision that precludes release to an LRA unless the court finds "the person is willing

to comply with the treatment provider and all requirements imposed by the treatment

provider and by the court. . . ." RCW 71.09.092(4). It is also consistent with the



        7 We note that our State Supreme Court deferred to a similar view of the LRA statutes advanced
by the State in In re Detention of Thorell 149 Wn.2d 724, 752-753, 72 P.3d 708 (2003) (emphasis added):

          The State emphasizes . . . that the time for LRA evaluation must be
       spent in intensive inpatient treatment, which occurs only after
       commitment. . . . Successful treatment and evaluation for LRAs . . .
       depends on openly discussing and understanding one's past violent
       sexual behavior and the desire to commit acts of sexual violence in the
       future. The State argues that it is only after commitment that SVPs tend
       to participate in treatment fully and the appropriateness of LRAs can
       accurately be evaluated.
                Given the deference we must afford the legislative classification,
       in this case, we conclude that the State's reasons for delaying
       consideration of LRA's [until the committed person's first annual review]
       are rationally related to the treatment of sexually violent predators.
No. 71460-1-1/8



statutory requirement that an LRA be in the SVP's "best interest." RCW 71.09.090(3)(d).

As we noted in In re Detention of Bergen,8

          ... the "best interests" standard accounts for the inherent
          dangerousness of SVPs and their unique, extended treatment
          needs: it relates to the SVP's successful treatment, ensuring that
          the LRA does not remove "incentive for successful treatment
          participation" or "distract[ ] committed persons from fully engaging
          in sex offender treatment" and is the "appropriate next step in the
          person's treatment.". . . The "best interests" standard is directly
          related to the SVP's dangerousness and mental illness and is
          narrowly tailored to serve the State's compelling interest in
          appropriately treating dangerous sex offenders.

In short, Rude's interpretation of the statute is contrary to its plain meaning. The trial

court did not err in considering Rude's attitude toward treatment.

          Rude next contends the court's findings regarding his attitude toward treatment

are not supported by sufficient evidence.9 We review findings in SVP proceedings for

substantial evidence to support the findings beyond a reasonable doubt.10 We view the

evidence in a light most favorable to the State and defer to the trier of fact on matters

involving the persuasiveness and credibility of the evidence.11

          Rude claims the court's findings ignore the fact that he has long sought one-on-

one treatment and has sound reasons for not wanting to participate in group therapy.

He also claims there is no evidence supporting the court's implicit assumption that

group therapy is a better treatment modality than one-on-one treatment. The challenged

findings are supported by substantial evidence.


   8146 Wn. App. 515, 529, 195 P.3d 529 (2008) (quoting Laws of 2005, ch. 344, § 1).

   9 These include Findings of Fact 9, 11, 12, 15, 17, 19, and 20.

   10 In re Detention of Halgren, 156Wn.2d795, 811, 132 P.3d 714 (2006): Thorell. 149 Wn.2d at 744.

   11 See In re Detention of Broten. 130 Wn. App. 326, 334-35, 122 P.3d 942 (2005); Thorell, 149 Wn.2d
at 744.


                                                     8
No. 71460-1-1/9



       The evidence before the trial court included the commitment trial testimony of

Shandra Carter, a mental health supervisor at the Airway Heights Correction Center.

She testified that "[g]roups are primary for [sex offender] treatment" that treatment is

provided "based on what research says works [.]" CP at 585. Carter and Michael

Jacobsen, Rude's prison treatment providers, both testified to his treatment interfering

behaviors. In an unchallenged finding, the court below found the following occurred

during Rude's pre-commitment treatment with Jacobsen:

       Mr. Rude was hesitant to discuss details of his sexual offending
       history, and the complete nature of his sexual criminal history is in
       serious question. Mr. Rude's resistance to treatment continued to a
       substantial degree throughout treatment. Mr. Rude was not
       transparent with his treatment providers, which would have helped
       them discover his risks and negative behavior patterns and create
       successful intervention strategies. Mr. Rude was unwilling to divulge
       the full nature of his risks, vulnerabilities, and triggers. Mr Rude
       appeared to manipulate and disclose information in such a way as to
       make him appear less of a risk to the community.... Mr. Rude
       lacked understanding of his specific offending patterns, risks,
       vulnerabilities, triggers, and intervention strategies.12

       This pattern of behavior continued during Rude's subsequent commitment at the

Special Commitment Center (SCC). During a discussion concerning his treatment plan,

Rude disagreed with his diagnoses, dynamic risks, interventions, and history. He

showed "notable rigidity" and an unwillingness to accept critical feedback. CP at 255.

Despite being repeatedly informed that group therapy was the primary treatment

modality and that "individual session modality is seen as less effective because of the

likelihood of [the] therapist being manipulated and [the] absence of peer feedback,"

Rude insisted on receiving one-on-one treatment and eschewed the available treatment




       12 Finding of Fact 10. CP at 798.
No. 71460-1-1/10



options. CP at 262. The credibility and persuasiveness of this evidence, which supports

the challenged findings, was for the trial court.13

        Finally, Rude contends the court's findings do not support its conclusions that the

proposed LRA is not in his best interest and does not include conditions that would

adequately protect the community.14 As discussed above, however, the "best interest"

requirement is focused on treatment and whether a LRA is the appropriate next step in

a person's treatment. The trial court's findings, particularly those concerning Rude's

attitude toward treatment, amply support its conclusion that a LRA is not in his best

interest.15 Because that conclusion justifies the court's denial of Rude's proposed LRA,

we need not consider Rude's challenge to the court's conclusion that his LRA lacked

conditions that would adequately protect the community.

        Affirmed.




      I /*»c/<e *y              —*


          13 In re Broten, 130 Wn. App. at 334-35. Rude points to studies that he claims undermine Carter's
testimony about the superiority of group therapy. But these studies were apparently not presented to the
trial court. Moreover, they involved child molesters, not SVP's, and were evidently inconclusive as to
whether treatment outcomes differed between individual and group therapy. The trial court was entitled to
rely on the stipulated evidence concerning group therapy, and the credibility and persuasiveness of that
evidence are beyond the scope of our review.

        14 Conclusion of Law 3. CP at 800-01.

        15 In a footnote, Rude challenges Finding of Fact 11, arguing that the court improperly drew a
negative inference from his refusal, on the advice of counsel, to participate in the annual review
conducted by Dr. Marquez. We need not address arguments raised in footnotes. State v. Johnson, 69
Wn. App. 189, 194 n.4, 847 P.2d 960 (1993). Furthermore, Finding of Fact 11 addresses Rude's failure to
disclose his sexual offense history to his community based treatment provider prior to his release from
prison, not his failure to participate in his annual review.


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