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# ~y IN THE SUPREME COURTOFTHE STATE OF WASHINGTON STATE OFWASHINGTON, ) ) 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 enterafinding ofdangerousness 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 consistentwith 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 ofAppeals but on different grounds. We hold that the trial court erred inNo. 87726-2 admitting hearsay statements at Dang's revocation hearing without finding good
causefordoing so butthatthe errorwas harmless beyond a reasonable doubt. FACTSAND 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 awindow-washing squeegeewhile agas station customer phoned police. Dang was arrested, and the State charged him with attempted arson in the firstdegree. Dang moved for acquittal on the grounds of insanity. The court granted Dang's motion, finding that Dang was suffering from a mental disease butthat 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)at8. 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 againstpossessing 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 underthe supervision ofthe secretary ofthe DOC

2No. 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 forone month in the summerof2008. Following his return from Vietnam, Dang's CCO and Harborview case manager noted that Dang was exhibiting signs ofdepression 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 HarborviewMental 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 warrantordering Dang committedforevaluation and treatment.
3No. 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 riskforfutureviolentand 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 andthat 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 offact and conclusions of law supporting the order revoking conditional release. Among otherfindings, 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 dangerto others and a substantial likelihood of committing criminal actsjeopardizing publicsafety. The CourtofAppeals affirmedthetrial 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 ofAppeals also determined that preponderance of the evidence, rather than clear, cogent, and

4No. 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 ofAppeals 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. Wegranted review. State v. Baa Dinh Dang, 175Wn.2d 1023, 291 P.3d 253 (2012). STANDARD OF REVIEW "'We review questions ofstatutory 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 reviewde novo. State v. Gresham, 173Wn.2d 405, 419, 269 P.3d 207 (2012). ANALYSIS We affirm the Court ofAppeals and hold that Dang's conditional release was properly revoked bythetrial court. First, we hold thatthe trial court properly revoked Dang's conditional release because it actually found Dang-dangerous. But contrary to the Court ofAppeals' holding, we concludethatfailureto adhereto theterms and conditions ofconditional release alone is not sufficient to revoke conditional release. Rather, the constitution requires a specific finding of dangerousness before ordering the confinement ofan insanityacquittee. Second, we conclude that preponderance ofthe evidence, rather than clear, cogent, and convincing evidence, isthe appropriate standard ofproofin determining

5No. 87726-2 the revocation of conditional release. The heightened standard required for civil commitments is simply not necessary inthe insanityacquittal context. Finally, unlike the Court ofAppeals, we conclude that the trial court erred in admitting hearsayevidence against Dang atthe hearing on revocation ofconditional release. Limited due process rights requirethetrial courtto find good causeto 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 comportedwith due process oflaw The revocation of Dang's conditional release was both statutorily and constitutionally sound. Although the Court ofAppeals erroneously interpreted RCW 10.77.190(4) to permit confinementwithout a specificfinding ofdangerousness, 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 underWashington's insanityacquittal scheme. A. Involuntarycommitmentofaperson acquittedbyreason ofinsanityrequires a finding thatthe acquitteeis 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

6No. 87726-2 confinement. The individual must also be a dangerto others or present a threat to publicsafety.Asthe United States Supreme Court has stated, Afinding of"mental illness" alone cannotjustify 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 matterofdue process, an insanity acquittee "may be held as long
as he is both mentally ill and dangerous, but no longer"); Jones 

### v. UnitedStates, 463 U.S. 354, 368, 103 S. Ct. 3043, 77 L. Ed. 2d 694 (1983) ("The committed acquittee is entitledto releasewhen he has recovered his sanityoris no longerdangerous."). 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 longerdangerous, 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 committedto a mental institution "so long as he is both mentally ill and dangerous as a result ofthat mental illness, but no longer"); In re Det. ofLaBelle, 107Wn.2d 196, 201, 728 P.2d 138 (1986) (holding mental illness alone is not a constitutionally adequate basisfor involuntarycommitment).

7No. 87726-2 In short, in orderto confine an insanity acquitteeto institutionalization against his or herwill, the trial court must make two determinations: first, that the acquittee suffersfrom a mental illness and second, thatthe acquittee is adangerto others. B. The trialcourtdeterminedDang

### was dangerous when itorderedrevocation of hisconditionalrelease 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 compliedwith both statutoryand 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, butthat [Dang was] in need offurther control by the court or other persons or institutions." CP at 7. Because the trial court specificallyfound that Dang was not dangerous, itordered Dang conditionally released pursuantto RCW 10.77.110(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 dangerousto revoke his conditional release. Thetrial courtdid
so in its "Findings of Fact and Conclusions of Law on Order Revoking Conditional Release," statingthat Dang could not"be conditionally released without presenting a substantial danger to other persons" and that Dang presented "a substantial likelihood ofcommitting criminal actsjeopardizing public safety and security." CP at 88. Thus, the trial court actually determinedthat Dang was dangerouswhen it made its revocation determination under RCW 10.77.190(4). The revocation of Dang's

8No. 87726-2 conditional release and his commitment to Western State Hospital were therefore constitutionallysustainable. C. The Courl of Appeals' interpretation of RCW 10.77.190(4) neglects the constitutionalrequirementofdangerousness The Court of Appeals interpreted RCW 10.77.190(4) to allow revocation of conditional release on the sole basis of nonadherencetotheterms and conditions of release. Bao Dinh Dang, 168 Wn. App. at 484. Specifically, the Court ofAppeals 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 alonewas proper."

### /d. Becausethis interpretation of RCW 10.77.190(4)does away with the constitutional requirement of a dangerousness finding, we reject it. Instead, we interpret RCW 10.77.190(4) in a mannerthat upholds its constitutionality andthatexaminesthe provision in the contextofchapter 10.77 RCW. "'Wherever possible, it is the duty ofthis court to construe a statute so as to ·uphold its constitutionality."' In re Pers. RestraintofMatteson, 142Wn.2d 298, 307,

12 P.3d 585 (2000) (quoting Addleman 

### v. Bd. ofPrison Terms 

### &Paroles, 107Wn.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 ofEcology 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.

9No. 87726-2 RCW 10.77.190(4) provides, The court, upon receiving notification ofthe apprehension, shall promptly schedule a hearing. The issue to be determined is whether the conditionally released person did ordid notadhereto theterms and conditions of his or her release, or whether the person presents a threatto public safety. Pursuantto the determination ofthe 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 subjectto release only in accordance with provisions ofthis chapter. Dissectingthis statute, thetrial courtcan make one ofthree possiblefindings: (1)the conditionally released person adheredto theterms and conditions ofrelease, (2) the conditionally released person did not adhere to theterms and conditions of release,
or (3)the conditionally released person presents athreatto publicsafety. 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 mustlookto the restofthe statutoryscheme. From other provisions in chapter 10.77 RCW, it is clearthat 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 10.77.110(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 dangerto other persons, or substantial likelihood of committing criminal

10No. 87726-2
acts jeopardizing public safety or security." RCW 10.77.150(3)(c). Although these statutes do not spell it out explicitly, they indicate that an insanity acquittee must be released-whollyorconditionally-unless releasewould result in adangerto 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 ofthe person on the groundsthatthe person is dangerousto selforothers." RCW 10.77.163(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 orshe "no longer presents

... asubstantial dangerto other persons, or a substantial likelihood of committing criminal acts jeopardizing publicsafetyorsecurity." Former RCW 10.77.200(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 safetythreat, 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, ifthe court determinesthatthe insanity acquittee adhered to the terms orconditions ofrelease, then it should continue release on the same conditions. Ifthe court determines that

11No. 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 orderto uphold the statute's constitutionality, we hold that only when the trial court determinesthat an insanity acquittee presents athreatto public safety maythe trial court rule to revoke conditional release. This interpretation ofthe 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 courtfind dangerousness. D. The State's proposed distinction between commitment status and commitmentdisposition

### is notsupportedbythe insanityacquittalstatutes 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 ofwhether Dang is entitledto total confinement or conditional release only concerns his commitmentdisposition and thus does not require anotherfinding 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 mayfind the defendant dangerous and confine. 

### /d. Orthe court may determinethat

12No. 87726-2 the defendant is notdangerous but in need ofsupervision and conditionally release. RCW 10.77.110(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 "commitmentstatus" 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 prooffor revoking an insanityacquittee'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 insanityacquittal. This court has recognized that the differences between civilly committed persons and insanity acquittees warrant different levels of procedural protections. SeeAlter

### 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), abrogatedon othergrounds byIn re Pers. Restraint ofHarris, 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.

13No. 87726-2 

### Texas, 441 U.S. 418, 433, 99 S. Ct. 1804, 60 

### L. Ed. 2d 323 (1979), this is largely dueto the riskthat "afactfindermightdecideto commitan individual based solelyon 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 commitmentfollowing 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 ifthe 

### acquittee himselfadvances insanity as a defense and provesthat his criminal actwas a product ofhis mental illness." 

### Jones, 463 U.S. at367. Thus, the criminal defendant's choiceto pursue an insanitydefense is "good reason for diminished concern as to the risk of error." 

### /d. Moreover, in the criminal insanity context, there is no riskthat 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 ofproofin revoking an insanityacquittee'sconditional release.

14No. 87726-2 Ill. Although the trial court erred in admitting hearsay evidence without good cause, the errorwas harmless Itwas errorforthe trial courtto admit hearsay evidence during the revocation hearing without agood cause finding for doing so. However, in lightofthe extensive nonhearsay evidence presented at the hearing that supported a dangerousness finding, thetrial court's errorwas harmless beyond areasonable doubt. A. Limited due process rights at revocation hearings require 

### a good cause finding before admittinghearsay When confronted with revocation of a qualified or conditional liberty, the United States Supreme Court has indicated that limited FourteenthAmendment 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 Morrisseyinvolved 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, 154Wn.2d 280, 283, 111 P.3d 1157 (2005) (sentencing modification hearing due to violations of community custody terms and conditions); State v. Dahl, 139Wn.2d 678, 679, 990 P.2d 396 (1999) (revocation ofaspecial 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

15No. 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 ofaperson acquitted on the grounds ofinsanity. 1 Under limited due process analysis, we have held that "hearsay evidence should be considered only ifthere is good cause to forgo live testimony." Dahl, 139 Wn.2d at686. "Good cause is defined in terms of'difficultyand expense ofprocuring witnesses in combinationwith demonstrably reliable orclearly 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 desireto blow up agas station.Acknowledgingthatthese statementswere hearsay, the court ruled that the statements were admissible because ofthe 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 orofthe reliability ofthe evidence. Thiswas error. Despitethis error, the CourtofAppeals concluded, The trial court's allowance of hearsayatthe hearing is notthe same as the admission of reports, affidavits, and documentary evidence in lieu

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

16No. 87726-2 of live testimony. Thus, the requirement of good cause for the admissibility of reports, affidavits, and documentary evidence in lieu of testimonyoutlined in Dahland Abd-Rahmaan is notapplicable here. Bao Dinh Dang, 168Wn. App. at487 (footnotes omitted). NeitherAbd-Rahmaan nor Dahldraws 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 ofAppeals' unsupported distinction and hold that trial courts must articulate a good faith basis for introducing hearsay evidencewhetherwritten orspoken-ina revocation hearing ofthis 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 errorwas harmless. Dang's Harborview Medical Center case manager, Eric King, testified regarding several problems he observed afterDang returned from histriptoVietnam 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.

17No. 87726-2 Similarly, Randall Vanzandt, a CCO with the DOC Special Needs Unit, testified that Dang appeared uncharacteristicallydepressed and quietafter returning from his month-long trip to Vietnam. He also testified that Dang was suffering from paranoid delusions regarding his mother's perceived control overhim. Vanzandtalso recounted a particular event in which Dang expressed what Vanzandt perceived to be athreatofpotential harmto himselforothers: He said that he was going to do something big. He didn'tdescribewhat thatwas, but he said veryclearly hewas going to do something big. He said he needed to go back to Western State Hospital. Again, in my attemptto tryto keep him inthe community, Itried to get him totalk-to talk him down from doing something big, and Iwas unableto do so. He maintainedthat he was going to do something big, wouldn'tsaywhat it was. And atthat point Ifelt 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 thingswith regard to histhought processes and Iwasfeeling like atthat 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 atthat point Ijust decided Iwas 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 goingto do aboutthis. 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 safetyand the safety ofothers following Dang's statementthat he was going to "do something big" probablyalone supportsthetrial court'sfinding ofdangerousness. 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 December2009, Dang said that he wanted to hurt himself

18No. 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 overa period oftime," id. at 78. In addition, Dr. Martin responded affirmatively to counsel's question whether Dang needed to share hisfeelings more openly in orderto return to the community safely, noting that Dang "remainsa risk" ifhe does notworkthrough hisfeelings. 

### /d. at 92. During Dang's testimony at the revocation hearing, Dang testified that he could havetold othersthat hewantedto blow up agasstation: 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. Icannot remember saying that. Idon'tthink Isaid things likethat atall. Q. And ifsomebody else thinksthatyou did, do you thinkyou might have? 

### A. Itcould 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 dangerousnessfinding. 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

19No. 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 thattrial court properly considered reports submitted priorto hearing
on revocation ofconditional release). Three such reports spanningfrom July2009to April 2010 appear in the record. The July 2009 report describes Dang's behavior as "erratic and sometimes threatening." CP at 68. The December2009 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 ofthe reports conclude with the statement, "Atthis time, Mr. Dang has not yet adequately addressed his factors of risk and remains at substantialrisk forfuture violentre-offending andcriminalbehaviorif 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.2Accordingly, we hold that although the trial court's admission of hearsay without a good cause finding was error, this
errorwas 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 thatthe trial court's error in admitting hearsay evidence was harmless dueto the quantity and quality of untainted evidence the trial court relied on, we declineto separately address Dang'ssufficiencyofthe evidence argument.

20No. 87726-2 CONCLUSION We affirm the Court of Appeals but on different grounds. To involuntarily confine an insanity acquittee, due process requires that acourt determinethat 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 thatthe trial court properly revoked his conditional release. Wealso holdthata preponderance of the evidence is the appropriate standard of proofat a hearing to revoke conditional release. Finally, we hold that the trial court erred in admitting hearsay evidence without engaging in agood cause analysis ofthe difficultyand expense ofprocuring live witnesses and the reliability of the evidence. However, because sufficient nonhearsayevidence supported thetrial court's dangerousnessfinding, we hold that thetrial court's errorwas harmless beyond a reasonable doubt.

21No. 87726-2

WE CONCUR.

22