                                                                           FILED
                                                                        APRIL 26, 2016
                                                                  In the Office of the Clerk of Court
                                                                WA State Court of Appeals, Division Ill




         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                            DIVISION THREE

In the Matter of the Detention of              )
                                               )         No. 32882-1-111
                                               )
                                               )
JAMES EDWARD JONES,                            )
                                               )
                                               )         UNPUBLISHED OPINION
                                               )
                                               )

       FEARING, C.J. -James Jones assigns three errors to his involuntary commitment

as a sexually violent predator. First, he argues the trial court violated his due process

rights by failing to review all pleadings the parties submitted for a Frye hearing. Frye v.

United States, 293 F. 1013, 34 A.L.R. 145 (D.C. Cir. 1923). Second, he contends the

trial court erred when allowing the State's expert witness to testify to his chance of

recidivism based on the Structured Risk Assessment-Forensic Version (SRA-FV)

actuarial instrument. He maintains the SRA-FV is a novel risk assessment that fails the

Frye test. Finally, he argues the State failed to plead and prove that he committed a
No. 32882-1-111
In re Det. ofJones


recent overt act, a necessary element to his commitment since he was no longer in total

confinement for a sexually violent act but incarcerated for a drug-related community

custody violation. We reject Jones's first two contentions. We agree with his third

argument and remand for a new trial.

                                         FACTS

       In 1997, a jury convicted James Jones of two counts of second degree rape and

one count of unlawful imprisonment. The trial court sentenced him to sixteen years and

six months' incarceration and three years' community custody. The Department of

Corrections (DOC) released him to community custody on December 9, 2010.

       DOC sanctioned James Jones for various substance abuse violations during his

community custody. On March 4, 2011, Jones' urine tested positive for marijuana, and

the DOC hearing officer sentenced him to seventeen days in jail. On August 3, 2011,

Jones' urine tested positive for methamphetamine, and the hearing officer sentenced him

to thirty days in jail. On September 5, 2011, Jones smoked marijuana.

      Before any hearing for his September 5 community custody breach and on

September 6, 2011, James Jones engaged in "rough sex" with a female at his home.

Clerk's Papers (CP) at 1187. We know none of the details of the sexual activity. When

police questioned him about bruises, abrasions, and scars suffered by his purported

victim, Jones characterized the sex as "rough." CP at 1187. The police arrested Jones,

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and the State charged him with first degree rape and unlawful imprisonment. At the

Yakima County jail, a community corrections officer collected Jones's urine, which

tested positive for marijuana.

       On September 21, 2011, DOC conducted a third community placement hearing for

James Jones at the Yakima County jail. At the hearing, Jones conceded marijuana use on

September 5. The DOC hearing officer ordered Jones returned to total confinement to .

serve the remainder of his prison sentence for the 1997 convictions. The officer noted

Jones' earlier community custody violations, his failure to seek help, and his risk to the

community when he uses drugs.

       On November 14, 2012, James Jones pied guilty to third degree assault for the

Septemb.er 6, 2011 incident, and the State dismissed the first degree rape count. The trial

court sentenced Jones to one year of incarceration with a year's credit for time served.

Therefore, Jones did not thereafter serve time for the 2011 assault, but he remained

imprisoned for the 1997 convictions.

                                       PROCEDURE

       On February 12, 2013, while James Jones remained in incarceration, the State of

Washington filed this petition to commit Jones as a sexually violent person. Prior to trial

on the petition, the trial court conducted a Frye hearing to determine whether the State

could admit as evidence use of the SRA-FV, a dynamic risk assessment tool for sex

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In re Det. ofJones


offenders, t.o establish that Jones would likely reoffend if released into the community. In

advance of the hearing, the parties filed hundreds of pages of declarations, briefs, articles,

and studies. The Frye hearing lasted two days. The State called Dr. Amy Phenix and Dr.

Harry Haberman as its experts, and Jones called Dr. Brian Abbott as his expert.

       At the conclusion of the Frye hearing, the trial court stated that the court

               actually had an opportunity to go through all of the mounds of
       paperwork that the attorneys had given me on this issue. So I was able to
       finally get through all of it. I have read the briefs, some of the cases, but I
       didn't go through all of the attachments and the declarations.

2 Verbatim Report of Proceedings (VRP) (May 29, 2014) at 266-67. The trial court

found the SRA-FY to be generally accepted in the scientific community and that

generally accepted methods of applying the test exist that can produce reliable results.

James Jones did not object to the trial court rendering a ruling without reviewing all

declarations and attachments.

      At the beginning of the trial on the sexually violent person petition, James Jones

filed a Marshall motion, seeking a trial court determination as a matter of law whether his

drug-related community custody violations and assault conviction qualified as recent

overt acts under chapter RCW 71.09.020(12). In re Det. ofMarshall, 156 Wn.2d 150,

125 P.3d 111 (2005). Jones requested that the trial court oblige the State to plead and

prove a recent overt act. He argued that his recent incarceration resulted from

community custody violations, that those violations involved no sexual activity, and that
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In re Det. ofJones


the violations did not qualify as recent overt acts under the statute.

       The trial court denied James Jones' motion. The court found that Jones'

incarceration at the time the State filed its petition was pursuant to his 1997 sexually

violent offense, not for community custody violations. The trial court therefore

concluded that the State need not plead or prove that Jones committed a recent overt act.

The trial court declined to decide whether Jones' September 2011 assault qualified as a

recent overt act.

       During trial, the State called Dr. Harry Hoberman to establish James Jones' level

of dynamic risk for reoffending under the SRA-FV. Hoberman concluded that Jones

scaled in the "very high" category to reoffend and that his likelihood of reoffending was

thirty-six percent over ten years. 4 VRP (Oct. 9, 2014) at 563. Psychologist Brian

Abbott testified and opined that Jones did not meet the criteria for involuntary

commitment. The jury found Jones to be a sexually violent predator, and the trial court

committed Jones to the State of Washington Department of Social and Health Services.

                                  LAW AND ANALYSIS

                              Trial Court Review of Pleadings

       On appeal, James Jones first argues that the trial court's failure to review some

pleadings during the Frye hearing violated his due process rights. We decline to address

this claimed error because Jones did not preserve the assignment of error for appeal.

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When the trial court announced the court had not read all of the declarations and

attachments, Jones never demanded that the court review all pleadings or objected to the

court issuing a ruling without this additional review.

       RAP 2.5 formalizes a fundamental principle of appellate review. The first

sentence of the rule reads:

               (a) Errors Raised for First Time on Review. The appellate court
       may refuse to review any claim of error which was not raised in the trial
       court.

No procedural principle is more familiar than that a constitutional right, or a right of any

other sort, may be forfeited in criminal cases by the failure to make timely assertion of

the right before a tribunal having jurisdiction to determine it. United States v. Olano, 507

U.S. 725, 731, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993); Yakus v. United States, 321

U.S. 414, 444, 64 S. Ct. 660, 88 L. Ed. 834 (1944).

       Good sense lies behind the requirement that arguments be first asserted at trial.

There is great potential for abuse when a party does not raise an issue below because a

party so situated could simply lie back, not allowing the trial court to avoid the potential

prejudice, gamble on the verdict, and then seek a new trial on appeal. State v. Weber, 159

Wn.2d 252, 271-72, 149 P.3d 646 (2006); State v. Emery, 174 Wn.2d 741, 762, 278 P.3d

653 (2012). The theory of preservation by timely objection also addresses several other

concerns. The rule serves the goal of judicial economy by enabling trial courts to correct

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No. 32882-1-111
In re Det. ofJones


mistakes and thereby obviate the needless expense of appellate review and further trials,

facilitates appellate review by ensuring that a complete record of the issues will be

available, and prevents adversarial unfairness by ensuring that the prevailing party is not

deprived of victory by claimed errors that he had no opportunity to address. State v.

Strine, 176 Wn.2d 742, 749-50, 293 P.3d 1177 (2013); State v. Scott, 110 Wn.2d 682,

685-88, 757 P.2d 492 (1988).

       Countervailing policies support allowing an argument to be raised for the first time

on appeal. For this reason, RAP 2.5(a) contains a number of exceptions. RAP 2.5(a)(3)

allows an appellant to raise for the first time "manifest error affecting a constitutional

right," an exception on which a criminal appellant commonly relies. Constitutional errors

are treated specially under RAP 2.5(a) because they often result in serious injustice to the

accused and may adversely affect public perceptions of the fairness and integrity of

judicial proceedings. State v. Scott, 110 Wn.2d at 686-87. James Jones does not claim

the trial court's failure to review all pleadings constitutes manifest constitutional error.

       This appeal fulfills the rationale behind the waiver of error by failing to object

below. The trial court was inundated with pleadings concerning the SRA-FV. The trial

court noted the "mounds of paperwork" examined. 2 VRP (May 29, 2014) at 266. Jones

could have asked the trial court which pages he did not review, but Jones did not raise

this question. Because Jones did not object below, we do not know which of the 1,500

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pages of pleadings the trial court did not review. We have no way to adjudge the

importance of the declarations and attachments not reviewed. We do not know to what

pleadings the attachments were affixed. For all we know, the unreviewed pleadings were

cumulative of other pleadings or testimony of the experts during the two-day trial. Jones

could have insisted that the trial court read all pleadings, at which time the trial court

could have delivered a reasoned explanation for omitting the review.

                                          Frye Test

       James Jones next assigns error to the trial court's ruling that the SRA-FY tool

satisfies Frye. Washington applies the Frye test to gauge whether expert testimony

premised on scientific evidence may be admissible. State v. Copeland, 130 Wn.2d 244,

261, 922 P.2d 1304 (1996). Frye requires that expert testimony be based on principles

generally accepted in the scientific community. State v. Canaday, 90 Wn.2d 808, 812,

585 P.2d 1185 (1978). The Frye test is two prong: (1) whether the underlying theory is

generally accepted in the scientific community, and (2) whether there are techniques

utilizing the theory that are capable of producing reliable results. State v. Riker, 123

Wn.2d 351, 359, 869 P.2d 43 (1994). The purpose of the Frye test is to exclude, from a

trial, novel scientific evidence not accepted in the scientific community. State v.

Copeland, 130 Wn.2d at 256. Disputes concerning scientific validity should be resolved

by the relevant scientific community. United States v. Addison, 498 F.2d 741, 743-44

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No. 32882-1-III
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(D.C. Cir. 1974); State v. Vandebogart, 136 N.H. 365, 616 A.2d 483, 489 (1992). Only

after the technique has been scrutinized and tested successfully in the scientific

community will the technique receive judicial recognition. State v. Copeland, 130 Wn.2d

at 256-57.

       Even before Washington adopted the community protection act of 1990, chapter

71.09 RCW, which includes provisions for the commitment of sexually violent predators,

forensic psychiatrists began formulating tools and protocols for predicting the likelihood

of a sexually violent offender to repeat similar criminal behavior. Psychiatrists and

psychologists refer to the tools as actuarial instruments, which, when widely accepted by

the professions, become validated actuarial instruments. Dr. David Thornton, Research

Director of the Sand Ridge Secure Treatment Center in Wisconsin, developed the first

validated actuarial instrument, labeled Static-99, in 1999. The term "static" derives from

the static factors, concerning an offender's history, reviewed through the instrument.

Other validated actuarial instruments constructed by Thornton or other psychologists

include Static-99 Revised, Static-2000, Static-2002 Revised, and Stable-2007. These

later versions introduced dynamic factors such as the aptitudes, interests, traits, and

thought patterns of the defendant. This case involves the acceptability of the latest

actuarial instrument, Structured Risk Assessment-Forensic Version (SRA-FY) developed

by David Thornton in 2010.

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       This court on two occasions has affirmed other trial court findings that the SRA-

FY instrument satisfies the Frye test. In re Det. ofRitter, No. 30845-6-111, 2016 WL

503128, *4 (Wash. Ct. App. Feb. 4, 2016); In re Det. of Pettis, 188 Wn. App. 198, 211,

352 P.3d 841, review denied, 184 Wn.2d 1025, 361 P.3d 748 (2015). Dr. Amy Phenix

provided similar testimony before the trial courts in both cases. James Jones raises

legitimate arguments concerning the legitimacy of the SRA-FY tool. He emphasizes the

low inter-rater reliability of the SRA-FY. One administrator of the test may arrive at a

different result than another administrator. Still, both Ritter and Pettis ruled against these

concerns.

       The Frye test addresses the admissibility of scientific evidence. One might

question whether the SRA-FY must pass the Frye test, since the SRA-FY is not strictly

scientific, and then, assuming the Frye test applies, question whether the instrument is

sufficiently scientific to pass muster. Nevertheless, other courts have applied the Frye

test to and admitted expert testimony from the soft sciences, such as economics and

psychology. Andrade Garcia v. Columbia Med. Ctr. of Sherman, 996 F. Supp. 617 (E.D.

Tex. 1998); United States v. Hall, 974 F. Supp. 1198 (C.D. Ill. 1997), aff'd, 165 F.3d

1095 (7th Cir. 1999); United States v. Scholl, 959 F. Supp. 1189 (D. Ariz. 1997), aff'd,

166 F.3d 964 (9th Cir. 1999); John Doe 76 C v. Archdiocese ofSt. Paul & Minneapolis,




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817 N.W.2d 150 (Minn. 2012); Commonwealth v. Sliech-Brodeur, 457 Mass. 300, 930

N.E.2d 91 (2010); Nations v. State, 944 S.W.2d 795 (Tex. App. 1997).

                                      Recent Overt Act

       We arrive at James Jones' last assignment of error. Jones contends the trial court

mistakenly ordered his commitment, after the jury trial, without insisting that the State

prove a recent sexually violent act, known under the sexually violent predator law as a

"recent overt act." We agree.

       To protect the public, the State may constitutionally confine dangerous individuals

who suffer from mental illnesses or disorders even if the mental condition is untreatable.

Kansas v. Hendricks, 521 U.S. 346, 366, 117 S. Ct. 2072, 138 L. Ed. 2d 501 (1997); In re

Det. of Gaff, 90 Wn. App. 834, 845, 954 P.2d 943 (1998). Therefore, RCW 71.09.060

authorizes the State of Washington to involuntarily commit a person determined to be a

"sexually violent predator" after he or she serves a sentence for a crime. 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). The State

may also wait until after release from incarceration to file the petition.

       A "sexually violent predator" is someone "convicted of or charged with a crime of

sexual violence and who suffers from a mental abnormality or personality disorder which

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makes the person likely to engage in predatory acts of sexual violence." RCW

71.09.020(18). RCW 71.09.020(8) defines "[m]ental abnormality" which "is tied directly

to present dangerousness." In re Det. ofHenrickson, 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. In re Det. of Marshall, 156 Wn.2d at

157 (2005).

       Proof of current dangerousness is constitutionally required to confine an offender.

In re Det. ofAlbrecht, 147 Wn.2d 1, 10, 51 P.3d 73 (2002). Therefore, the Washington

sexually violent predator statute is premised on a finding of the present dangerousness of

the committee. In re Det. of Henrickson, 140 Wn.2d at 692. Proof of a recent overt act

may be required to establish current dangerousness. In re Det. of Marshall, l 56 Wn.2d at

157. A "[r]ecent overt act" is:

              any act or 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.

RCW 71.09.020(12). Nevertheless, the State must prove an individual committed a

recent overt act only if, on the day the State files the petition, the individual lived in the

community after release from custody. In re Det. of Marshall 156 Wn.2d at 157.
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      RCW 71.09.030(1) reads in relevant part:

              A petition may be filed alleging that a person is a sexually violent
      predator and stating sufficient facts to support such allegation when it
      appears that: (a) A person who at any time previously has been convicted of
      a sexually violent offense is about to be released from total confinement; ..
      . or (e) a person who at any time previously has been convicted of a
      sexually violent offense and has since been released from total confinement
      and has committed a recent overt act.

(Emphasis added.) RCW 9.94A.030(51) defines "total confinement" as:

              "Total confinement" means confinement inside the physical
      boundaries of a facility or institution operated or utilized under contract by
      the state or any other unit of government for twenty-four hours a day, or
      pursuant to RCW 72.64.050 and 72.64.060.

In tum, the second paragraph ofRCW 71.09.060 partially declares

              (1) . . . If, on the date that the petition is filed, the person was living
      in the community after release from custody, the state must also prove
      beyond a reasonable doubt that the person had committed a recent overt
      act.

(Emphasis added.)

      When an individual remains incarcerated at the time the State files its petition for

commitment, no evidence of a recent overt act is required because such a requirement

would create a standard that would be impossible to meet. In re Pers. Restraint of Young,

122 Wn.2d at 41 (1993). This rationale assumes that the offender cannot engage in

sexually violent acts in prison. The law presumes that prisoners have no opportunity to

commit a recent overt act while incarcerated. In re Det. ofAlbrecht, 14 7 Wn.2d at 8-9

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(2002). The rationale does not apply when the State released the offender into the

community even with supervision. In re Det. ofAlbrecht, 147 Wn.2d at 9. The

supervision does not extend round the clock. The offender in community custody

possesses an opportunity to engage in sexually violent acts and thus the State does not

face the impossibility of showing current dangerousness.

       In this appeal, we must decide whether the State must prove a recent overt act.

DOC released James Jones to community custody on December 9, 2010. Thereafter, he

thrice returned to jail for community custody violations of substance abuse. When, on

February 12, 2013, the State filed the petition for commitment as a sexually violent

predator, Jones remained in prison. One could characterize the reason for his

imprisonment, in February 2013, as the result of a community custody violation or the

result of returning to prison for the 1997 second degree rape conviction. The community

custody violations were not sexually violent in nature and thus do not qualify as "recent

overt acts." The 1997 rapes qualify as an "overt act" for purposes of committing the

offender as a sexually violent person, but the question remains whether this court should

consider the rapes "recent overt acts" when James Jones spent time in the community

after his imprisonment for the rapes.

       Whether the State must plead and prove a recent overt act in order to commit a

person as a sexually violent person is a question of law and reviewed de novo. In re Det.

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In re Det. ofJones


of Hovinga, 132 Wn. App. 16, 20, 130 P.3d 830 (2006). Based on In re Detention of

Albrecht, 147 Wn.2d at 51 (2002), In re Detention ofBroten, 115 Wn. App. 252, 62 P.3d

514 (2003), and In re Detention ofDavis, 109 Wn. App. 734, 37 P.3d 325 (2002), we rule

that the State needed to plead and prove a recent overt act.

       In re Detention ofAlbrecht controls this appeal. Our state high court framed its

issue: whether the State must allege a recent overt act in order to commit an offender as a

sexually violent predator when the offender has been released from total confinement into

the community and then returned to total confinement. The Supreme Court concluded

that "after a person has been released into the community, due process would be

subverted by failing to require proof of a recent overt act." 14 7 Wn.2d at 4.

       After Robin Albrecht served his four-year sentence for child molestation, the State

released Albrecht into community placement in accordance with his sentence. A

condition of community placement was no direct or indirect contact with minor children.

Thirty days after his release from incarceration, Albrecht offered two boys fifty cents to

follow him. As a result, the court modified Albrecht's community supervision and

imposed one hundred twenty days in jail. While Albrecht resided in jail, the State filed a

petition for a civil commitment as a sexually violent predator. After defense counsel

deposed the two young boys, counsel warned the State that the boys' testimony did not

support a finding of a recent overt act. The State then moved to amend the petition to

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allege it need not prove a recent overt act because Albrecht remained in prison, at the

time of the petition's filing, for child molestation. The trial court permitted the

amendment, but the Supreme Court reversed.

       In Albrecht, the state high court held that the State must prove beyond a

reasonable doubt a recent overt act when the State files a sexual predator petition on an

offender ( 1) who has been released from confinement, (2) but is incarcerated the day the

petition is filed, (3) on a charge that does not constitute a recent overt act. In re Det. of

Albrecht, 14 7 Wn.2d at 11 n.11. The court observed that another person on community

placement release may be found in violation of his. release for something as minor as

consuming alcohol or failing to report to his community corrections officer. The

Supreme Court remanded the case for the State to show a recent overt act at trial.

       More reason exists to require a recent overt act in this appeal than in Albrecht.

James Jones returned to prison because of use of a controlled substance, not because of

any sexual act. Robin Albrecht returned to prison for accosting young boys.

       In In re Detention of Broten, 115 Wn. App. 252 (2003), this court followed the

Supreme Court's lead in Albrecht. We reversed a civil commitment because the trial

court did not require the State to prove a recent overt act. The State incarcerated Richard

Broten for rape of his infant daughter. Broten gained release into community placement

with supervision. While on release, the State returned Broten to prison for violation of

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In re Det. ofJones


conditions of his community placement by cruising malls and parks, encountering a

prostitute, possessing pornography, masturbating to fantasies of children, and pursuing a

relationship with a mother of a small child. We reasoned that equating incarceration for

community custody violations with imprisonment for a sexually violent offense violates

due process. One in community placement may be returned to prison if a violation

hearings judge determines the offender violated a community placement condition by a

preponderance of the evidence. The sexually violent predator statute requires proof

beyond a reasonable doubt. Broten's release into the community afforded him the

opportunity to overtly act. Thus, the State no longer faced an impossible burden to show

a recent overt act.

       In re Detention ofDavis, 109 Wn. App. 734, 37 P.3d 325 (2002) repeats the

outcomes in Albrecht and Broten. Dale Davis violated a community placement term

prohibiting him from contact with minors under the age of eighteen. This court

remanded the case for a trial on the question of whether Davis' violation of conditions of

community custody sufficed as a sexually violent recent overt act.

       The Supreme Court in In re Detention of Marshall, 156 Wn.2d 150 (2005),

impliedly confirmed the holding in In re Detention ofAlbrecht. The Marshall court

excused the State from establishing a recent overt act, but distinguished its facts from the

Albrecht facts on the basis that Marshall was jailed for a sexually violent act on the date

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No. 32882-1-III
In re Det. ofJones


that the State filed the petition for confinement. In Albrecht, the offender had been

released into the community following total confinement for the sexually violent act and

was incarcerated again for a violation of community placement conditions.

       The State relies on In re Detention of Kelley, 133 Wn. App. 289, 135 P.3d 554

(2006). Timothy Kelley was convicted in 1972 of raping a twelve-year-old girl. He was

convicted in 1980 of statutory rape of a nine-year-old girl. The 1980 conviction led to a

twenty-year sentence. Nevertheless, the trial court suspended the sentence and sent

Kelley to Western State Hospital to undergo sexual psychopathy treatment. While on

outpatient status, Kelley assaulted his girlfriend. The court revoked his suspended

sentence and sent him to jail to serve his twenty-year sentence. He remained in jail at the

time the State filed its sexually violent predator commitment petition. We affirmed the

commitment and ruled that the State did not need to show a recent overt act, despite the

outpatient release. We characterized Albrecht, Davis and Broten as carving a narrow

exception to the rule that the State need not prove a recent overt act when the offender is

totally confined. We distinguished the suspended sentence from the community

placement releases in Albrecht, Davis, and Broten. We reasoned that Kelley's

confinement at the time the State filed its petition was the result of the 1980 rape, not the

assault of his girlfriend while on outpatient release.

       This ruling in Kelley should be probed. Regardless of benefiting from a suspended

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sentence and being on community placement, Timothy Kelley gained the opportunity to

commit a recent overt act. The opportunity to commit another violent sexual act

generates the requirement that the State prove a recent overt act. The constitution allows

a civil commitment only if the offender is currently dangerous.

       In re Detention of Kelley followed In re Detention ofHovinga, 132 Wn. App. 16

(2006). In Hovinga, this court also held that the State need not allege and prove a recent

overt act. The State imprisoned Dery le Hovinga in 1981 for statutory rape of a nine-year-

old girl. In 1988, Hovinga was released into the community on parole. The State

returned Hovinga to prison in 1992 because of parole violations. He remained in prison

for another eleven years, and, before his release, the State filed a petition for

commitment. The parole violations included following young girls in a Bon Marche,

while being videotaped. He masturbated as he trailed the minors. He admitted at least

six occasions of similar behavior.

       Hovinga may have alternative rulings. This court distinguished Albrecht on the

basis that Hovinga was released on parole in lieu of serving his full sentence, as opposed

to receiving community placement. This first ruling should be questioned as the Kelley

ruling was doubted.

       The Hovinga court also affirmed the commitment of Dery le Hovinga on the

ground that the parole violation constituted a sexually violent act. Since Hovinga

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No. 32882-1-111
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returned to prison and remained in prison at the time of the filing of the petition, the State

did not need to prove another recent overt act.

       We cannot reconcile Kelley and Hovinga with Albrecht, Davis, and Broten. The

distinction between release from parole and an outpatient release, on the one hand, and

community custody on the other hand has no legitimate difference. Nor does the

difference between community placement, the predecessor of community custody, and

community custody establish a reason to distinguish the facts in Albrecht, Davis, and

Broten from the circumstances of James Jones. Regardless of the label given the release

into the community, the offender no longer sits in total confinement. The offender

possesses the ability and freedom to commit another sexually violent crime. The

offender has the opportunity to commit a recent overt act.

       We need not reconcile this court's various opinions. Albrecht, as a Supreme Court

decision, controls our appeal. Under Albrecht, the State must show a recent overt act in

order to commit James Jones.

       The State also argues that the "rough sex" incident on September 6, 2011, for

which James Jones pied guilty to assault qualifies as a recent overt act or frees it from

showing a recent overt act because Jones returned to total confinement as a result of the

assault. We disagree. We only have sketchy facts and lack any testimony under oath.

We cannot judge whether the incident involved an act of violent sexual predation. We

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would take from James Jones his right to have a jury determine beyond a reasonable

doubt whether the September 6 incident qualifies as a recent overt act.

       The State also forwarded a similar argument in In re Detention ofDavis, 109 Wn.

App. 734 (2002). The Davis court rejected the argument. The court noted that the facts

in the record of Davis' unauthorized contact with the 15-year-old boy did not

conclusively prove that Davis' conduct was of a sexually violent nature or created a

reasonable apprehension of such harm.

       We do not wish someone with the current propensity of sexual violence to be free

to prey on other victims. We note, however, that the State, if it deemed James Jones to be

a sexually violent person as a result of the 1997 rapes, could have filed a petition before

Jones' release to community custody on December 9, 2010. The State, on remand,

remains free to confine James Jones as a sexually violent predator if it proves beyond a

reasonable doubt the "rough sex" on September 6, 2011 to be a recent overt act.

                                      CONCLUSION

       We reverse the trial court's judgment referring James Jones for civil commitment

as a sexually violent predator. We remand for a trial on whether James Jones committed

a recent overt act sufficient to commit him as a sexually violent person.

       A majority of the panel has determined this opinion will not be printed in the




                                             21
No. 32882-1-III
In re Det. ofJones


Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.

                                          ~~
                                       Feari~
                                                          1   I
WE CONCUR:


   5-;~w~-~-
siddoway,1.




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