Fl LE 

IN CLERKS OFFICE This opinlonw8s filed for record 

at ?>:oo GN, .... ' I! OiJ 

SUPREME COURT, STATE OF WASHINGTON 

DATE. ~ocr a 1 2013 

~y IN THE SUPREME COURT OF THE STATE OF WASHINGTON 

STATE OF WASHINGTON, ) 

) 

Respondent, ) No, 87726-2 

) 

V, ) En Bane 

) 

BAO DINH DANG, ) OCT 31 2013 ) Filed 

Petitioner, ) 

) 

WIGGINS, J.-ln this case, we must determine whether trial courts are 

required to enter a finding of dangerousness before revoking the conditional release 

of a person acquitted of a crime by reason of insanity. We must also decide the 

appropriate standard of proof governing the revocation determination. We conclude 

that consistent with due process principles, our statutory scheme governing insanity 

acquittals, chapter 10.77 RCW, requires trial courts to find conditionally released 

insanity acquittees dangerous before committing them to mental institutions against 

their will. We also conclude that a preponderance of the evidence sufficiently 

protects an insanity acquittee's rights in the context of revoking conditional release. 

Because the trial court in this case specifically determined that Bao Dinh Dang was 

dangerous, we hold that it properly revoked his conditional release. We thus affirm 

the Court of Appeals but on different grounds. We hold that the trial court erred in 
No. 87726-2 

admitting hearsay statements at Dang's revocation hearing without finding good 

cause for doing so but that the error was harmless beyond a reasonable doubt. 

FACTS AND PROCEDURAL HISTORY 

In November 2006, Dang walked up to a gas pump at a Seattle Chevron 

station, lit newspaper on fire, and attempted to pump gas in order to ignite the gas 

supply. A Chevron employee successfully knocked the flaming newspaper out of 

Dang's hand with a window-washing squeegee while a gas station customer phoned 

police. Dang was arrested, and the State charged him with attempted arson in the 

first degree. 

Dang moved for acquittal on the grounds of insanity. The court granted 

Dang's motion, finding that Dang was suffering from a mental disease but that Dang 

was "not a substantial danger to other persons and does not now present a 

substantial likelihood of committing felonious acts jeopardizing public safety or 

security, but . . . is in need of further control by the court or other persons or 

institutions." Clerk's Papers (CP) at 8. 

In the same order granting Dang's motion for acquittal by reason of insanity, 

the court ordered Dang conditionally released subject to various conditions, 

including the assignment of a Department of Corrections (DOC) probation officer, a 

requirement that Dang live with his mother and remain in Washington, and 

prohibitions against possessing explosives, breaking additional laws, and consuming 

alcohol. The order granting conditional release also required Dang to seek 

psychiatric treatment at Harborview Medical Center and to follow all treatment 

recommendations and to remain under the supervision of the secretary of the DOC 

2 
No. 87726-2 

by reporting to a community corrections officer (CCO). Finally, the order stated that 

Dang's conditional release was contingent on being in a state of remission from the 

effects of mental disease and on having no significant deterioration of his mental 

condition. 

Dang's conditional release was thereafter modified a few more times to 

require semiannual reports by the supervising CCO, to change Dang's residence 

from his mother's Seattle home to his sister's home in California, and to ensure 

compliance with treatment. Aside from these modifications, Dang's conditional 

release proceeded without incident. Given Dang's compliance with the terms of 

conditional release, the trial court permitted Dang to travel to Vietnam for one month 

in the summer of 2008. 

Following his return from Vietnam, Dang's CCO and Harborview case 

manager noted that Dang was exhibiting signs of depression and paranoia. Dang's 

ceo received word from the Harborview case manager that Dang had stated that 

he was not taking medication and felt like setting a gas station on fire. In addition, 

Dang's case manager and ceo noted that Dang was experiencing delusions with 

respect to his mother's power and control over him and that Dang had alluded to 

doing "something big." Report of Proceedings (RP) at 48. Dang was taken to 

Harborview Mental Health Services, recanted his statements, and was released. 

In light of the concerns expressed by Dang's ceo and case manager, the 

State moved for an order to issue a bench warrant for Dang's arrest and 

commitment pending a hearing on Dang's conditional release. The court issued a 

bench warrant ordering Dang committed for evaluation and treatment. 

3 
No. 87726-2 

Following arrest, Dang was placed in Western State Hospital for evaluation. 

During this period, the Department of Social and Health Services (DSHS) issued 

several reports regarding Dang's mental health. Each report outlined Dang's 

treatment and recommended that Dang not return to the community because he 

remained at risk for future violent and criminal behavior. 

After extensive evaluation at Western State Hospital, the State moved to 

revoke Dang's conditional release. The trial court then heard testimony· of Dang's 

ceo, the Harborview case manager, a DSHS psychologist, Dang's mother, and 

Dang. Several of the witnesses testified that Dang's mental health condition had 

deteriorated and that Dang should remain hospitalized. 

Following the hearing, the court revoked Dang's conditional release. Dang 

appealed. While Dang's appeal was pending, the trial court issued findings of fact 

and conclusions of law supporting the order revoking conditional release. Among 

other findings, the court determined that Dang's mental disease did not remain in a 

state of remission and that Dang could not be conditionally released without 

presenting a substantial danger to others and a substantial likelihood of committing 

criminal acts jeopardizing public safety. 

The Court of Appeals affirmed the trial court's revocation of Dang's conditional 

release. State v. Bao Dinh Dang, 168 Wn. App. 480, 488, 280 P.3d 1118 (2012). It 

determined that revocation of Dang's conditional release was proper based on 

Dang's nonadherence to the terms and conditions of release and that a specific 

finding of dangerousness was not required. /d. at 484. The Court of Appeals also 

determined that preponderance of the evidence, rather than clear, cogent, and 

4 
No. 87726-2 

convincing evidence, was the appropriate standard of proof for determining 

revocation of conditional release under the insanity acquittal statute. /d. at 486. 

Finally, the Court of Appeals held that the cases establishing limited due process 

rights to confront and cross-examine witnesses in similar revocation hearings 

prohibited only documentary hearsay, not hearsay admitted through live testimony. 

We granted review. State v. Baa Dinh Dang, 175 Wn.2d 1023, 291 P.3d 253 (2012). 

STANDARD OF REVIEW 

"'We review questions of statutory interpretation de novo."' State .v. Veliz, 176 

Wn.2d 849, 853-54, 298 P.3d 75 (2013) (quoting State v. Morales, 173 Wn.2d 560, 

567 n.3, 269 P.3d 263 (2012)). Constitutional issues are questions of law that we 

also review de novo. State v. Gresham, 173 Wn.2d 405, 419, 269 P.3d 207 (2012). 

ANALYSIS 

We affirm the Court of Appeals and hold that Dang's conditional release was 

properly revoked by the trial court. 

First, we hold that the trial court properly revoked Dang's conditional release 

because it actually found Dang-dangerous. But contrary to the Court of Appeals' 

holding, we conclude that failure to adhere to the terms and conditions of conditional 

release alone is not sufficient to revoke conditional release. Rather, the constitution 

requires a specific finding of dangerousness before ordering the confinement of an 

insanity acquittee. 

Second, we conclude that preponderance of the evidence, rather than clear, 

cogent, and convincing evidence, is the appropriate standard of proof in determining 

5 
No. 87726-2 

the revocation of conditional release. The heightened standard required for civil 

commitments is simply not necessary in the insanity acquittal context. 

Finally, unlike the Court of Appeals, we conclude that the trial court erred in 

admitting hearsay evidence against Dang at the hearing on revocation of conditional 

release. Limited due process rights require the trial court to find good cause to admit 

hearsay based on the difficulty and expense of procuring witnesses and the 

reliability of the evidence in question. But because ample evidence supported the 

trial court's finding that Dang was dangerous, the trial court's error was harmless 

beyond a reasonable doubt. 

I. The revocation of Dang's conditional release complied with the statutes and 

comported with due process of law 

The revocation of Dang's conditional release was both statutorily and 

constitutionally sound. Although the Court of Appeals erroneously interpreted RCW 

1 0.77.190(4) to permit confinement without a specific finding of dangerousness, the 

trial court did determine that Dang was dangerous when it revoked his conditional 

release. Therefore, we affirm the Court of Appeals' holding that the trial court 

properly revoked Dang's conditional release. However, contrary to the Court of 

Appeals' analysis, we hold that a dangerousness finding is constitutionally required 

to revoke conditional release under Washington's insanity acquittal scheme. 

A. Involuntary commitment of a person acquitted by reason of insanity requires a 

finding that the acquittee is dangerous 

In the context of involuntary commitment, mental illness alone is not enough 

to restrict an individual's liberty interest in remaining free of government 

6 
No. 87726-2 

confinement. The individual must also be a danger to others or present a threat to 

public safety. As the United States Supreme Court has stated, 

A finding of "mental illness" alone cannot justify a State's locking 

a person up against his will and keeping him indefinitely in simple 

custodial confinement. Assuming that that term can be given a 

reasonably precise content and that the "mentally ill" can be identified 

with reasonable accuracy, there is still no constitutional basis for 

confining such persons involuntarily if they are dangerous to no one 

and can live safely in freedom. 

O'Connor v. Donaldson, 422 U.S. 563, 575, 95 S. Ct. 2486, 45 L. Ed. 2d 396 (1975). 

The Supreme Court's determination that mental illness and dangerousness must 

both underpin an involuntary commitment has been repeatedly reaffirmed. See 

Foucha v. Louisiana, 504 U.S. 71, 77, 112 S. Ct. 1780, 118 L. Ed. 2d 437 (1992) 

(holding that as a matter of due process, an insanity acquittee "may be held as long 

as he is both mentally ill and dangerous, but no longer"); Jones v. United States, 463 

U.S. 354, 368, 103 S. Ct. 3043, 77 L. Ed. 2d 694 (1983) ("The committed acquittee 

is entitled to release when he has recovered his sanity or is no longer dangerous."). 

This court too has made clear that an involuntary commitment requires a 

dangerousness finding. See State v. Klein, 156 Wn.2d 102, 121, 124 P.3d 644 

(2005) ("An insanity acquittee must be released if he or she is no longer dangerous, 

regardless of the presence of a mental disease or defect."); State v. Reid, 144 

Wn.2d 621, 631, 30 P.3d 465 (2001) (holding that insanity acquittee may be 

committed to a mental institution "so long as he is both mentally ill and dangerous as 

a result of that mental illness, but no longer"); In re Det. of LaBelle, 107 Wn.2d 196, 

201, 728 P.2d 138 (1986) (holding mental illness alone is not a constitutionally 

adequate basis for involuntary commitment). 

7 
No. 87726-2 

In short, in order to confine an insanity acquittee to institutionalization against 

his or her will, the trial court must make two determinations: first, that the acquittee 

suffers from a mental illness and second, that the acquittee is a danger to others. 

B. The trial court determined Dang was dangerous when it ordered revocation of 

his conditional release 

In this case, the trial court determined that Dang was dangerous when it 

revoked his conditional release. Accordingly, we hold that the revocation of Dang's 

conditional release complied with both statutory and constitutional law. 

When Dang was acquitted by reason of insanity, the trial court determined 

that Dang was "not a substantial danger to other persons and [did not] present a 

substantial likelihood of committing felonious acts jeopardizing the public safety or 

security, but that [Dang was] in need of further control by the court or other persons 

or institutions." CP at 7. Because the trial court specifically found that Dang was not 

dangerous, it ordered Dang conditionally released pursuant to RCW 10.77.11 0(3). 

Because Dang had never been found dangerous-indeed, his conditional 

release required a specific finding of nondangerousness-the trial court was 

required to find Dang dangerous to revoke his conditional release. The trial court did 

so in its "Findings of Fact and Conclusions of Law on Order Revoking Conditional 

Release," stating that Dang could not "be conditionally released without presenting a 

substantial danger to other persons" and that Dang presented "a substantial 

likelihood of committing criminal acts jeopardizing public safety and security." CP at 

88. Thus, the trial court actually determined that Dang was dangerous when it made 

its revocation determination under RCW 1 0. 77 .190( 4 ). The revocation of Dang's 

8 
No. 87726-2 

conditional release and his commitment to Western State Hospital were therefore 

constitutionally sustainable. 

C. The Courl of Appeals' interpretation of RCW 10. 77.190(4) neglects the 

constitutional requirement of dangerousness 

The Court of Appeals interpreted RCW 10.77.190(4) to allow revocation of 

conditional release on the sole basis of nonadherence to the terms and conditions of 

release. Bao Dinh Dang, 168 Wn. App. at 484. Specifically, the Court of Appeals 

stated that "[g]iven that the trial ·court found that Dang did not adhere to the terms 

and conditions of his release, revocation of his conditional release based on that 

finding alone was proper." /d. Because this interpretation of RCW 1 0.77.190(4) does 

away with the constitutional requirement of a dangerousness finding, we reject it. 

Instead, we interpret RCW 10. 77.190(4) in a manner that upholds its constitutionality 

and that examines the provision in the context of chapter 10.77 RCW. 

"'Wherever possible, it is the duty of this court to construe a statute so as to 

·uphold its constitutionality."' In re Pers. Restraint of Matteson, 142 Wn.2d 298, 307, 

12 P.3d 585 (2000) (quoting Addleman v. Bd. of Prison Terms & Paroles, 107 Wn.2d 

503, 510, 730 P.2d 1327 (1986) (internal quotation marks omitted)). When we 

interpret statutes, we construe their meaning by reading them in relation with other 

statutes. Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 11, 43 P.3d 4 

(2002). By examining RCW 10.77.190(4) in the context of other provisions of 

chapter 10.77 RCW, it is possible to interpret RCW 10. 77.190(4) to uphold its 

constitutionality. 

9 
No. 87726-2 

RCW 1 0.77.190(4) provides, 

The court, upon receiving notification of the apprehension, shall 

promptly schedule a hearing. The issue to be determined is whether 

the conditionally released person did or did not adhere to the terms and 

conditions of his or her release, or whether the person presents a 

threat to public safety. Pursuant to the determination of the court upon 

such hearing, the conditionally released person shall either continue to 

be conditionally released on the same or modified conditions or his or 

her conditional release shall be revoked and he or she shall be 

committed subject to release only in accordance with provisions of this 

chapter. 

Dissecting this statute, the trial court can make one of three possible findings: (1) the 

conditionally released person adhered to the terms and conditions of release, (2) the 

conditionally released person did not adhere to the terms and conditions of release, 

or (3) the conditionally released person presents a threat to public safety. Depending 

on which determination the trial court makes, three outcomes can result: (1) 

continued conditional release on the same conditions, (2) continued conditional 

release on modified conditions, or (3) revocation of conditional release and 

commitment. To determine which findings permissibly lead to which outcomes, we 

must look to the rest of the statutory scheme. 

From other provisions in chapter 10.77 RCW, it is clear that a person cannot 

be committed initially absent a finding that the person "is a substantial danger to 

other persons, or presents a substantial likelihood of committi!lg criminal acts 

jeopardizing public safety or security." RCW 10.77.11 0(1 ). Upon a petition for 

release from commitment, the court may hold a hearing at which the issue to be 

determined is "whether or not the person may be released conditionally without 

substantial danger to other persons, or substantial likelihood of committing criminal 

10 
No. 87726-2 

acts jeopardizing public safety or security." RCW 1 0.77.150(3)(c). Although these 

statutes do not spell it out explicitly, they indicate that an insanity acquittee must be 

released-wholly or conditionally-unless release would result in a danger to others. 

Other statutes in chapter 10.77 RCW support this conclusion as well. For 

example, when a committed person is about to be released on temporary furlough, 

"the prosecuting attorney may seek a temporary restraining order to prevent the 

release of the person on the grounds that the person is dangerous to self or others." 

RCW 1 0.77.163(3). This supports a reading that only a dangerous person may be 

confined. Similarly, in order to obtain full release from commitment, the insanity 

acquittee must prove that he or she "no longer presents ... a substantial danger to 

other persons, or a substantial likelihood of committing criminal acts jeopardizing 

public safety or security." Former RCW 1 0.77.200(3) (2000). 

These related statutory provisions demonstrate that the legislature did not 

intend to involuntarily confine insanity acquittees without a judge determining that 

they are dangerous. We interpret RCW 1 0.77.190(4) consistently with this intent. 

RCW 10.77.190(4) states that "[p]ursuant to the determination of the court upon 

such [conditional release revocation] hearing" that the acquittee adhered to 

conditions, did not adhere to conditions, or presents a public safety threat, the court 

shall make a ruling to continue the acquittee on conditional release, modify the 

terms of conditional release, or revoke conditional release. The ruling that the trial 

court makes therefore depends entirely on what it determines. /d. Thus, if the court 

determines that the insanity acquittee adhered to the terms or conditions of release, 

then it should continue release on the same conditions. If the court determines that 

11 
No. 87726-2 

there was no adherence to the terms and conditions, then it may either continue 

release on the same conditions or modify the conditions. Following this logic, in 

order to uphold the statute's constitutionality, we hold that only when the trial court 

determines that an insanity acquittee presents a threat to public safety may the trial 

court rule to revoke conditional release. 

This interpretation of the statute comports with the constitutional requirement 

that an insanity acquittee must be dangerous to be committed. Because RCW 

10. 77.190(4) is capable of a constitutional interpretation, we reject the Court of 

Appeals' interpretation that does away with the constitutional requirement that the 

trial court find dangerousness. 

D. The State's proposed distinction between commitment status and 

commitment disposition is not supported by the insanity acquittal statutes 

The State distinguishes between a commitment status and a commitment 

disposition to assert that Dang has already been assigned the status of committed 

and has therefore already been found dangerous. Under this theory, the court's 

determination of whether Dang is entitled to total confinement or conditional release 

only concerns his commitment disposition and thus does not require another finding 

of dangerousness. This interpretation finds no support in the language of RCW 

10.77.110. 

As already discussed, RCW 10.77.110 gives the court three options after 

granting a defendant's motions for acquittal on the grounds of insanity. The court 

may find the defendant not dangerous and release. RCW 10.77.110(1). The court 

may find the defendant dangerous and confine. /d. Or the court may determine that 

12 
No. 87726-2 

the defendant is not dangerous but in need of supervision and conditionally release. 

RCW 1 0.77.11 0(3). Only if the defendant is found dangerous may the trial court 

order confinement. The statute plainly states that only a nondangerous insanity 

acquittee may be conditionally released. Thus, the State's assertion that all insanity 

acquittees are relegated to "commitment status" and therefore presumed dangerous 

ignores the text of RCW 10.77.110. Here, immediately following Dang's motion for 

acquittal on the grounds of insanity, the court determined Dang was nondangerous 

and conditionally released him. We therefore reject the State's proposed 

interpretation of RCW 10. 77.110 that presumes that, by virtue his acquittal, Dang 

was dangerous. 

II. A preponderance of the evidence standard is the appropriate standard of 

proof for revoking an insanity acquittee's conditional release 

Dang argues that we should adopt a clear, cogent, and convincing evidence 

standard to revoke an insanity acquittee's conditional release. We decline to do so 

because of the significant differences between civil commitment and commitment 

following an insanity acquittal. 

This court has recognized that the differences between civilly committed 

persons and insanity acquittees warrant different levels of procedural protections. 

See Alter v. Morris, 85 Wn.2d 414, 419-20, 536 P.2d 630 (1975) (upholding different 

procedural treatment of persons committed civilly and persons committed following 

acquittal on insanity grounds), abrogated on other grounds by In re Pers. Restraint 

of Harris, 94 Wn.2d 430, 436, 617 P.2d 739 (1980). Although due process requires 

clear and convincing evidence to support a person's civil commitment, Addington v. 

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No. 87726-2 

Texas, 441 U.S. 418, 433, 99 S. Ct. 1804, 60 L. Ed. 2d 323 (1979), this is largely 

due to the risk that "a factfinder might decide to commit an individual based solely on 

a few isolated instances of unusual conduct," id. at 427. Because civil confinement 

requires something "more serious than is demonstrated by idiosyncratic behavior,'' 

the Supreme Court opted to employ a standard of proof more stringent than 

preponderance. /d. 

The concerns raised in Addington are not present in the context of a 

commitment following acquittal by reason of insanity. As the United States Supreme 

Court has recognized in construing the District of Columbia's insanity acquittal 

statute, "commitment ... follows only if the acquittee himself advances insanity as a 

defense and proves that his criminal act was a product of his mental illness." Jones, 

463 U.S. at 367. Thus, the criminal defendant's choice to pursue an insanity defense 

is "good reason for diminished concern as to the risk of error." /d. Moreover, in the 

criminal insanity context, there is no risk that mere '"idiosyncratic behavior"' will form 

the basis of commitment; instead, it is the criminal act itself that is "not 'within a 

range of conduct that is generally acceptable."' /d. (quoting Addington, 441 U.S. at 

426-27). Because there is less risk of commitment error in the insanity acquittal 

context, there is also less need to employ a heightened standard of proof. 

Accordingly, we conclude that a preponderance of the evidence is the proper 

standard of proof in revoking an insanity acquittee's conditional release. 

14 
No. 87726-2 

Ill. Although the trial court erred in admitting hearsay evidence without good 

cause, the error was harmless 

It was error for the trial court to admit hearsay evidence during the revocation 

hearing without a good cause finding for doing so. However, in light of the extensive 

nonhearsay evidence presented at the hearing that supported a dangerousness 

finding, the trial court's error was harmless beyond a reasonable doubt. 

A. Limited due process rights at revocation hearings require a good cause 

finding before admitting hearsay 

When confronted with revocation of a qualified or conditional liberty, the 

United States Supreme Court has indicated that limited Fourteenth Amendment due 

process guaranties apply. Morrissey v. Brewer, 408 U.S. 471, 482, 92 S. Ct. 2593, 

33 L. Ed. 2d 484 (1972). These rights include the right to confront and crossexamine witnesses unless there is articulable good cause for disallowing 

confrontation. /d. at 489. Although Morrissey involved the revocation of parole, id. at 

477-78, this court has applied its limited due process rights in other contexts. See, 

e.g., State v. Abd-Rahmaan, 154 Wn.2d 280, 283, 111 P.3d 1157 (2005) (sentencing 

modification hearing due to violations of community custody terms and conditions); 

State v. Dahl, 139 Wn.2d 678, 679, 990 P.2d 396 (1999) (revocation of a special sex 

offender sentencing alternative (SSOSA) sentence). Like parole, sentencing 

modification, and SSOSA revocation, the trial court's revocation of an insanity 

acquittee's conditional release implicates a conditional liberty dependent on the 

observance of special terms and conditions. See Morrissey, 408 U.S. at 480. 

Indeed, the insanity acquittee conditional release scheme embraces "the notion that 

the [acquittee] is entitled to retain his liberty as long as he substantially abides by 

15 
No. 87726-2 

[its] conditions," id. at 479, and is not a danger to others. Therefore, as we have 

done in the SSOSA and sentencing modification context, we apply Morrissey's 

limited rights to confrontation and cross-examination in the context of revoking the 

conditional release of a person acquitted on the grounds of insanity. 1 

Under limited due process analysis, we have held that "hearsay evidence 

should be considered only if there is good cause to forgo live testimony." Dahl, 139 

Wn.2d at 686. "Good cause is defined in terms of 'difficulty and expense of procuring 

witnesses in combination with demonstrably reliable or clearly reliable evidence."' /d. 

(internal quotation marks omitted) (quoting State v. Nelson, 103 Wn.2d 760, 765, 

697 P.2d 579 (1985)). 

During the revocation hearing, the trial court permitted Eric King, Dang's 

Harborview caseworker, and Randall Vandzandt, Dang's DOC Community 

Corrections Officer, to testify about statements made by Harborview Medical 

Center's county designated mental health providers regarding Dang's desire to blow 

up a gas station. Acknowledging that these statements were hearsay, the court ruled 

that the statements were admissible because of the relaxed evidentiary standard in 

revocation proceedings. See RP at 32-33, 44, 50. However, the trial court did not 

engage in a good cause analysis of the difficulty and expense of procuring live 

witnesses or of the reliability of the evidence. This was error. 

Despite this error, the Court of Appeals concluded, 

The trial court's allowance of hearsay at the hearing is not the same as 

the admission of reports, affidavits, and documentary evidence in lieu 

1 We note that the parties agree that the limited due process rights outlined in Morrissey, AbdRahmaan, and Dahl should apply in this context. 

16 
No. 87726-2 

of live testimony. Thus, the requirement of good cause for the 

admissibility of reports, affidavits, and documentary evidence in lieu of 

testimony outlined in Dahl and Abd-Rahmaan is not applicable here. 

Bao Dinh Dang, 168 Wn. App. at 487 (footnotes omitted). Neither Abd-Rahmaan nor 

Dahl draws a distinction between hearsay in documentary evidence and hearsay in 

live testimony. Nor does the Court of Appeals provide any authority for such a 

proposition. We reject the Court of Appeals' unsupported distinction and hold that 

trial courts must articulate a good faith basis for introducing hearsay evidencewhether written or spoken-in a revocation hearing of this nature. 

B. The trial court's failure to make a good cause finding was harmless error 

beyond a reasonable doubt 

Although the trial court erred in admitting hearsay without good cause, 

"[v]iolations of a defendant's minimal due process right to confrontation are subject 

to harmless error analysis." Dahl, 139 Wn.2d at 688; see also State v. Powell, 126 

Wn.2d 244, 267, 893 P.2d 615 (1995). Because sufficient nonhearsay evidence in 

the record supported a finding that Dang was dangerous, we hold that the trial 

court's error was harmless. 

Dang's Harborview Medical Center case manager, Eric King, testified 

regarding several problems he observed after Dang returned from his trip to Vietnam 

in 2008. Specifically, he discussed Dang's paranoid delusions that Dang's mother 

was involved in the court system and the DOC, plotting to restrict his freedom. King 

also characterized Dang as demonstrating significant anger and opposition toward 

his mother. King's testimony established that Dang showed signs of mental 

instability. 

17 
No. 87726-2 

Similarly, Randall Vanzandt, a CCO with the DOC Special Needs Unit, 

testified that Dang appeared uncharacteristically depressed and quiet after returning 

from his month-long trip to Vietnam. He also testified that Dang was suffering from 

paranoid delusions regarding his mother's perceived control over him. Vanzandt also 

recounted a particular event in which Dang expressed what Vanzandt perceived to 

be a threat of potential harm to himself or others: 

He said that he was going to do something big. He didn't describe what 

that was, but he said very clearly he was going to do something big. He 

said he needed to go back to Western State Hospital. Again, in my 

attempt to try to keep him in the community, I tried to get him to talk- to 

talk him down from doing something big, and I was unable to do so. He 

maintained that he was going to do something big, wouldn't say what it 

was. And at that point I felt clearly like I needed to take some action at 

this point. This has been, you know, a week now that I've seen some 

extremes in his affect and in his mood and I've seen some concerning 

things with regard to his thought processes and I was feeling like at that 

point I was needing to do something. He was again saying he was 

going to do something big. 

I tried contacting Western State Hospital just to talk with them, 

left a message, and at that point I just decided I was going to take him 

up to Harborview. I was going to try to take him to a place where he 

could be safe and everybody could be safe while I figured out what I 

was going to do about this. 

RP at 48-49. The testimony of Vanzandt, a ceo trained and experienced in 

assessing mental health issues, that he was concerned about Dang's safety and the 

safety of others following Dang's statement that he was going to "do something big" 

probably alone supports the trial court's finding of dangerousness. 

In addition to the testimony of King and Vanzandt, Dr. Norma Martin, a 

forensic psychologist at Western State Hospital, also testified. Dr. Martin explained 

that during an incident in December 2009, Dang said that he wanted to hurt himself 

18 
No. 87726-2 

and requested isolation from others. Dr. Martin opined that this was "a severe 

warning sign in his mental illness and on his relapse prevention plan." RP at 68. Dr. 

Martin also stated that Dang "need[ed] to be in the hospital and continue to be 

involved in the treatment that's available for him," id. at 77, in order "to reduce his 

risk more by having more mood stability over a period of time," id. at 78. In addition, 

Dr. Martin responded affirmatively to counsel's question whether Dang needed to 

share his feelings more openly in order to return to the community safely, noting that 

Dang "remains a risk" if he does not work through his feelings. /d. at 92. 

During Dang's testimony at the revocation hearing, Dang testified that he 

could have told others that he wanted to blow up a gas station: 

Q. Okay. Did you ever tell anybody before you went to Western 

State Hospital that you were thinking about blowing up a gas 

station? 

A. I cannot remember saying that. I don't think I said things like that 

at all. 

Q. And if somebody else thinks that you did, do you think you might 

have? 

A. It could be. 

/d. at 105. Dang's admission that he might have told others that he wanted to blow 

up a gas station is additional untainted evidence that supports the trial court's 

dangerousness finding. 

In addition to the testimony outlined above, the trial court also had several 

reports from Western State Hospital recommending against Dang's conditional 

release because of dangerousness and risk of criminal behavior. In making its 

determination on conditional release, the trial court "shall be aided by the periodic 

19 
No. 87726-2 

reports filed" by medical professionals tasked with examining insanity acquittees. 

RCW 10.77.180; see also State v. Thompson, 28 Wn. App. 728, 730, 626 P.2d 51 

(1981) (holding that trial court properly considered reports submitted prior to hearing 

on revocation of conditional release). Three such reports spanning from July 2009 to 

April 2010 appear in the record. The July 2009 report describes Dang's behavior as 

"erratic and sometimes threatening." CP at 68. The December 2009 and April 2010 

reports provided a lengthy list of several of Dang's mental health problems, which 

included Dang's "substantial lack of insight into the harm that his crime could have 

produced." /d. at 49, 64. All of the reports conclude with the statement, "At this time, 

Mr. Dang has not yet adequately addressed his factors of risk and remains at 

substantial risk for future violent re-offending and criminal behavior if released to a 

less restrictive setting." /d. at 49, 64, 69 (emphasis added). Thus, the reports of 

mental health providers at Western State Hospital also support the trial court's 

conclusion that Dang's mental health issues rendered him too dangerous for 

conditional release. 

Because various testimony and reports indicated that Dang was at risk for 

dangerous or criminal behavior, the trial court had ample untainted evidence before 

it to make a finding that Dang was dangerous. 2 Accordingly, we hold that although 

the trial court's admission of hearsay without a good cause finding was error, this 

error was harmless beyond a reasonable doubt. 

2 Dang contends that there was insufficient evidence in the record to support a finding that he 

was dangerous. Because we conclude that the trial court's error in admitting hearsay evidence 

was harmless due to the quantity and quality of untainted evidence the trial court relied on, we 

decline to separately address Dang's sufficiency of the evidence argument. 

20 
No. 87726-2 

CONCLUSION 

We affirm the Court of Appeals but on different grounds. To involuntarily 

confine an insanity acquittee, due process requires that a court determine that he or 

she is dangerous. The Court of Appeals' holding to the contrary was incorrect. 

Nonetheless, because the trial court did find Dang dangerous, we hold that the trial 

court properly revoked his conditional release. We also hold that a preponderance of 

the evidence is the appropriate standard of proof at a hearing to revoke conditional 

release. Finally, we hold that the trial court erred in admitting hearsay evidence 

without engaging in a good cause analysis of the difficulty and expense of procuring 

live witnesses and the reliability of the evidence. However, because sufficient 

nonhearsay evidence supported the trial court's dangerousness finding, we hold that 

the trial court's error was harmless beyond a reasonable doubt. 

21 
No. 87726-2 

WE CONCUR. 

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