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 WASHING TON 

DIVISION THREE 

In the Matter of the Detention of 

JAMES EDWARD JONES, 

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No. 32882-1-111 

UNPUBLISHED OPINION 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. of Jones 

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. of Jones 

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. of Marshall, 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. of Jones 

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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In re Det. of Jones 

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. of Jones 

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 

In re Det. of Jones 

(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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In re Det. of Jones 

This court on two occasions has affirmed other trial court findings that the SRAFY instrument satisfies the Frye test. In re Det. of Ritter, 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 of St. Paul & Minneapolis, 

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No. 32882-1-III 

In re Det. of Jones 

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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In re Det. of Jones 

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. of Henrickson, 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. of Albrecht, 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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In re Det. of Jones 

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. of Albrecht, 14 7 Wn.2d at 8-9 

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In re Det. of Jones 

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

community even with supervision. In re Det. of Albrecht, 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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No. 32882-1-III 

In re Det. of Jones 

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 of Broten, 115 Wn. App. 252, 62 P.3d 

514 (2003), and In re Detention of Davis, 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 of Albrecht 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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In re Det. of Jones 

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. of Jones 

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 of Davis, 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 of Albrecht. 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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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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In re Det. of Jones 

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 of Hovinga, 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-yearold 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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In re Det. of Jones 

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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In re Det. of Jones 

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 of Davis, 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 

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

2.06.040. 

WE CONCUR: 

~~ I 

Feari~ 1 

5-;~w -~-

siddoway,1. ~ 

22