### FILED APRIL 

### 26, 2016 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division Ill

INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE Inthe Matter ofthe Detention of

JAMES EDWARD JONES, ) ) ) ) ) ) ) ) ) No. 32882-1-111

UNPUBLISHED OPINION

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

as a sexually violentpredator. 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. UnitedStates, 293 F. 1013, 34 A.L.R. 145 (D.C. Cir. 1923). Second, he contendsthe trial court erred when allowing the State's expert witness totestify 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 assessmentthat fails the Frye test. Finally, he argues the State failed to plead andprove thathe committed aNo. 32882-1-111 In re Det. of Jones

recent overt act, a necessary elementto his commitment since he was no longer in total confinement for a sexually violent actbut incarcerated for a drug-related community custody violation. We reject Jones's first two contentions. We agree withhis third argument and remand for a new trial. FACTS In 1997, ajury convicted James Jones oftwo counts ofsecond degree rape and

one count ofunlawful imprisonment. The trial court sentencedhim to sixteenyears and six months' incarceration and three years' community custody. The Department of Corrections (DOC) released himto community custody onDecember 9, 2010. DOC sanctioned James Jones for various substance abuse violations during his community custody. OnMarch 4, 2011, Jones' urine tested positive for marijuana, and the DOC hearing officer sentenced him to seventeen days injail. OnAugust 3, 2011, Jones' urine tested positive for methamphetamine, andthe hearing officer sentencedhim to thirty days injail. 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 athis home. Clerk's Papers (CP) at 1187. We know none ofthe details ofthe sexual activity. When police questioned him aboutbruises, abrasions, and scars suffered by his purported victim, Jones characterizedthe sex as "rough." CP at 1187. Thepolice arrested Jones, 2No. 32882-1-111 In re Det. of Jones

and the State charged him with first degree rape and unlawful imprisonment. Atthe Yakima Countyjail, a community corrections officer collectedJones's urine, which tested positive for marijuana. On September21, 2011, DOC conducted a third communityplacementhearing for James Jones at the Yakima Countyjail. Atthe hearing, Jones conceded marijuanause on September 5. The DOC hearing officer ordered Jones returned to total confinementto . serve the remainder ofhis prison sentence for the 1997 convictions. The officernoted Jones' earlier community custody violations, his failure to seek help, and his risk to the community when he uses drugs. OnNovember 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 sentencedJones to one year ofincarceration with a year's credit for time served. Therefore, Jones did notthereafter serve time for the 2011 assault, buthe 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 violentperson. Priorto trial

on the petition, the trial court conducted a Frye hearingto determine whetherthe State could admit as evidence use ofthe SRA-FV, a dynamic risk assessmenttool for sex 3No. 32882-1-111 In re Det. of Jones offenders, t.o establish that Jones would likely reoffend ifreleased into the community. In advance ofthe hearing, the parties filed hundreds ofpages ofdeclarations, briefs, articles, and studies. TheFrye hearing lasted two days. The State called Dr. Amy Phenix and Dr. Harry Haberman as its experts, and Jones calledDr. Brian Abbott as his expert. Atthe conclusion ofthe Frye hearing, the trial court stated thatthe court actually had an opportunity to go through all ofthe mounds of paperworkthat the attorneys had given me on this issue. So I was able to finally getthrough all ofit. I have read the briefs, some ofthe cases, but I didn't go through all ofthe attachments and the declarations. 2 Verbatim Report ofProceedings (VRP) (May 29, 2014) at 266-67. The trial court found the SRA-FYto be generally accepted in the scientific community and that generally accepted methods ofapplying the test exist that canproduce reliable results. James Jones did not objectto the trial court rendering a ruling withoutreviewing all declarations and attachments. Atthe beginning ofthe trial on the sexually violentpersonpetition, James Jones filed aMarshall motion, seeking a trial court determination as a matter oflaw 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 4No. 32882-1-111 In re Det. of Jones

the violations did not qualify as recent overt acts underthe statute. Thetrial court denied James Jones' motion. The court found that Jones' incarceration at the time the State filed its petition was pursuantto his 1997 sexually violent offense, not for community custody violations. Thetrial courttherefore concludedthat the State need notplead orprove that Jones committed a recent overt act. The trial court declined to decide whetherJones' September2011 assault qualified as a recent overt act. Duringtrial, the State called Dr. Harry Hoberman to establish James Jones' level ofdynamic risk for reoffending under the SRA-FV. Hoberman concluded thatJones scaled in the "very high" categorytoreoffend and thathis likelihood ofreoffending was thirty-sixpercent overten years. 4 VRP (Oct. 9, 2014) at 563. PsychologistBrian Abbotttestified and opined thatJones did not meetthe criteria for involuntary commitment. Thejury found Jones to be a sexually violentpredator, and the trial court committed Jones to the State ofWashington Department ofSocial andHealth Services. LAWAND ANALYSIS Trial CourtReview ofPleadings On appeal, James Jones first argues that the trial court's failure toreview some pleadings during theFrye hearing violated his due process rights. We decline to address this claimed errorbecause Jones did notpreserve the assignment oferror for appeal. 5No. 32882-1-111 

### In re Det. of Jones
When the trial court announced the court had notread all ofthe declarations and attachments, Jones never demanded that the courtreview all pleadings or objectedto the court issuing a ruling withoutthis additional review. RAP 2.5 formalizes a fundamental principle ofappellate review. The first sentence ofthe rule reads: (a) Errors Raised for First Time on Review. The appellate court may refuse to review any claim oferror which was not raised in the trial court. No procedural principle is more familiar than that a constitutional right, or a right ofany other sort, may be forfeited in criminal cases by the failure to make timely assertion of the right before a tribunal havingjurisdiction to determine it. 

### UnitedStates v. Olano, 507 U.S. 725, 731, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993); 

### Yakus v. UnitedStates, 321 U.S. 414, 444, 64 S. Ct. 660, 88 L. Ed. 834 (1944). Good sense lies behind the requirementthat arguments be first asserted at trial. There is greatpotential for abuse when aparty does notraise an issue belowbecause a party so situated could simply lie back, not allowing the trial court to avoid the potential prejudice, gamble onthe 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 ofpreservation by timely objection also addresses several other

concerns. The rule serves the goal of judicial economy by enabling trial courts to correct 6No. 32882-1-111 In re Det. of Jones
mistakes and thereby obviate the needless expense ofappellate review and further trials, facilitates appellate review by ensuring that a complete record ofthe issues will be available, and prevents adversarial unfairness by ensuring that the prevailingparty is not deprived ofvictory 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). Countervailingpolicies support allowing an argument to be raised for the first time

on appeal. Forthis reason, RAP 2.5(a) contains a number ofexceptions. 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 commonlyrelies. Constitutional errors
are treated specially underRAP 2.5(a) because they often result in serious injustice to the accused and may adversely affectpublic perceptions ofthe fairness and integrity of judicialproceedings. 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 behindthe waiver oferrorby failing to object below. The trial court was inundated withpleadings concerningthe SRA-FV. The trial court noted the "mounds ofpaperwork" examined. 2 VRP (May 29, 2014) at 266. Jones could have asked the trial court which pages he did notreview, butJones did notraise this question. Because Jones did not object below, we do notknow which ofthe 1,500 7No. 32882-1-111 In re Det. of Jones

pages ofpleadings the trial court did not review. We have no way to adjudge the importance ofthe declarations and attachments notreviewed. We do not know to what pleadings the attachments were affixed. For all we know, the unreviewedpleadings were cumulative ofotherpleadings or testimony ofthe experts during the two-day trial. Jones could have insisted that the trial courtread all pleadings, atwhichtime the trial court could have delivered a reasoned explanation for omittingthe 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 experttestimony 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 onprinciples 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 ofproducingreliable results. State v. Riker, 123 Wn.2d 351, 359, 869 P.2d 43 (1994). The purpose ofthe 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 shouldbe resolved by the relevant scientific community. UnitedStates v. Addison, 498 F.2d 741, 743-44 8No. 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 afterthe technique has been scrutinized and tested successfully in the scientific community will the technique receivejudicial 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 ofsexually violentpredators, forensic psychiatrists began formulating tools and protocols for predictingthe likelihood ofa sexually violent offenderto repeat similar criminal behavior. Psychiatrists and psychologists referto the tools as actuarial instruments, which, when widely accepted by the professions, become validated actuarial instruments. Dr. David Thornton, Research Director ofthe 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 otherpsychologists 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 thoughtpatterns ofthe defendant. This case involves the acceptability ofthe latest actuarial instrument, Structured Risk Assessment-Forensic Version (SRA-FY) developed by David Thornton in 2010. 9No. 32882-1-111 In re Det. of Jones

This court on two occasions has affirmed othertrial 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 similartestimony before the trial courts in both cases. James Jones raises legitimate arguments concerning the legitimacy ofthe SRA-FY tool. He emphasizes the low inter-raterreliability ofthe SRA-FY. One administrator ofthe test may arrive at a different result than another administrator. Still, bothRitter andPettis ruled against these

concerns. The Frye test addresses the admissibility ofscientific evidence. One might question whetherthe SRA-FY mustpass the Frye test, since the SRA-FY is not strictly scientific, and then, assuming the Frye test applies, question whetherthe 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); UnitedStates v. Hall, 974 F. Supp. 1198 (C.D. Ill. 1997), aff'd, 165 F.3d 1095 (7th Cir. 1999); UnitedStates 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,

10No. 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 oferror. Jones contends the trial court mistakenly ordered his commitment, afterthejurytrial, without insisting that the State prove a recent sexually violent act, known under the sexually violentpredator law as a "recent overt act." We agree. Toprotectthe public, the State may constitutionally confine dangerous individuals who suffer from mental illnesses or disorders even ifthe 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 ofWashington to involuntarily commit aperson determined to be a "sexuallyviolent predator" after he or she serves a sentence for a crime. The State may file apetition alleging an individual is a sexually violentpredator when "itappears that . . . [a] person who at any time previously has been convicted ofa sexually violent offense is about to be released from total confinement." RCW71.09.030(1). The State may also wait until after release from incarcerationto file the petition. A "sexually violent predator" is someone "convicted ofor charged with a crime of sexual violence and who suffers from a mental abnormality orpersonality disorder which 11No. 32882-1-111 In re Det. of Jones

makes the person likely to engage in predatory acts ofsexual 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 inIn

re PersonalRestraintof Young, 122 Wn.2d 1, 27, 857 P.2d 989 (1993), because due process requires that an individual mustbe both mentally ill andpresently dangerous before he or she may be indefinitely committed. In re Det. of Marshall, 156 Wn.2d at 157 (2005). Proofofcurrent 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 violentpredator statute is premised on a finding ofthe present dangerousness of the committee. In re Det. of Henrickson, 140 Wn.2d at 692. Proofofa 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 orthreat, or combination thereofthat has either caused harm ofa sexually violent nature or creates a reasonable apprehension ofsuch harm in the mind ofan objectiveperson who knows ofthe history and mental condition oftheperson engaging in the act. RCW 71.09.020(12). Nevertheless, the State mustprove 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. 12No. 32882-1-111 In re Det. of Jones

RCW 71.09.030(1) reads in relevantpart: 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 personwho 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 ofa sexually violent offense and has since been released from total confinement and has committed a recent overtact. (Emphasis added.) RCW 9.94A.030(51) defines "total confinement" as: "Total confinement" means confinement inside the physical boundaries ofa facility orinstitution operated orutilized under contractby the state or any otherunit ofgovernment for twenty-fourhours a day, or pursuant to RCW 72.64.050 and 72.64.060. In tum, the secondparagraph 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 recentovert act. (Emphasis added.) When an individual remains incarcerated at the time the State files its petition for commitment, no evidence ofa recent overt act is required because such a requirement would create a standardthat would be impossible to meet. In re Pers. Restraintof Young, 122 Wn.2d at 41 (1993). This rationale assumes thatthe offender cannot engage in sexually violent acts in prison. The lawpresumes thatprisoners have no opportunity to commit a recent overt act while incarcerated. In re Det. of Albrecht, 147 Wn.2d at 8-9 13No. 32882-1-111 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 ofshowing current dangerousness. In this appeal, we must decide whether the State mustprove a recent overt act. DOC released James Jones to community custody on December 9, 2010. Thereafter, he thrice returned tojail for community custody violations ofsubstance abuse. When, on February 12, 2013, the State filed the petition for commitment as a sexually violent predator, Jones remained inprison. One could characterize the reason for his imprisonment, in February 2013, as the result ofa community custody violation orthe result ofreturning toprison 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 ofcommittingthe offender as a sexually violentperson, butthe question remains whetherthis court should considerthe rapes "recent overt acts" when James Jones spenttime in the community after his imprisonment for the rapes. Whetherthe State must plead and prove a recent overt act in orderto commit a person as a sexually violentperson is a question oflaw andreviewed de novo. In re Det. 14No. 32882-1-III In re Det. of Jones of Hovinga, 132 Wn. App. 16, 20, 130 P.3d 830 (2006). Based onIn re Detention of Albrecht, 147 Wn.2d at 51 (2002), In re Detention of Broten, 115 Wn. App. 252, 62 P.3d 514 (2003), andIn 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 Albrechtcontrols this appeal. Our state high court framed its issue: whether the State must allege a recent overt act in orderto commit an offender as a sexually violent predatorwhenthe offenderhas been released from total confinement into the community and then returned to total confinement. The Supreme Court concluded that "after aperson has been released into the community, due process would be subverted by failing to require proofofa recent overt act." 147 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 ofcommunityplacementwas no direct or indirect contact with minor children. Thirty days after his release from incarceration, Albrecht offeredtwo boys fifty cents to follow him. As a result, the court modified Albrecht's community supervision and imposed one hundred twenty days injail. While Albrecht resided injail, 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 thatthe boys' testimony did not support a finding ofa recent overt act. The State then moved to amendthe petitionto 15No. 32882-1-111 In re Det. of Jones allege it need notprove a recent overt act because Albrechtremained inprison, at the time ofthe petition's filing, for child molestation. The trial courtpermittedthe amendment, butthe Supreme Courtreversed. InAlbrecht, the state high court heldthat the State mustprove beyond a reasonable doubt a recent overt act when the State files a sexual predatorpetition on an offender (1) who has beenreleased from confinement, (2) but is incarceratedthe day the petition is filed, (3) on a charge that does not constitute a recent overt act. In re Det. of Albrecht, 147 Wn.2d at 11 n.11. The court observed that anotherperson on community placementrelease may be found in violation ofhis. release for something as minor as consuming alcohol or failing to report tohis community corrections officer. The Supreme Courtremandedthe 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 inAlbrecht. James Jones returned to prison because ofuse ofa controlled substance, notbecause of any sexual act. Robin Albrecht returned to prison for accosting young boys. InIn re Detention of Broten, 115 Wn. App. 252 (2003), this court followed the Supreme Court's lead inAlbrecht. We reversed a civil commitmentbecausethetrial court did notrequire the State to prove a recent overt act. The State incarcerated Richard Broten for rape ofhis infant daughter. Broten gained release into community placement with supervision. While on release, the State returned Brotento prison for violation of 16No. 32882-1-111 In re Det. of Jones
conditions ofhis communityplacement by cruising malls and parks, encountering a prostitute, possessingpornography, masturbating to fantasies ofchildren, and pursuing a relationship with a mother ofa small child. We reasoned that equating incarceration for community custody violations with imprisonment for a sexually violent offense violates due process. One in communityplacement may bereturned to prison ifa violation hearingsjudge determines the offender violated a communityplacement condition by a preponderance ofthe evidence. The sexually violentpredator 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 inAlbrechtandBroten. Dale Davis violated a communityplacementterm prohibiting him from contactwith minors underthe age ofeighteen. This court remanded the case for a trial on the question ofwhether Davis' violation ofconditions 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 inIn re Detention of Albrecht. TheMarshall court excused the State from establishing a recent overt act, but distinguished its facts from the Albrechtfacts on the basis that Marshall wasjailed for a sexually violent act onthe date 17No. 32882-1-III In re Det. of Jones
thatthe State filed the petition for confinement. InAlbrecht, the offenderhad been released into the community following total confinement for the sexually violent act and

was incarcerated again for a violation ofcommunityplacement conditions. The State relies onIn re Detention of Kelley, 133 Wn. App. 289, 135 P.3d 554 (2006). Timothy Kelley was convicted in 1972 ofraping a twelve-year-old girl. He was convicted in 1980 ofstatutory rape ofa nine-year-old girl. The 1980 conviction led to a twenty-year sentence. Nevertheless, the trial court suspendedthe sentence and sent Kelley to Western State Hospital to undergo sexual psychopathy treatment. While on outpatient status, Kelley assaulted his girlfriend. The courtrevoked his suspended sentence and sent him tojailto serve his twenty-year sentence. He remained injail at the time the State filed its sexually violentpredator commitmentpetition. We affirmed the commitment and ruled that the State did not need to show a recent overt act, despite the outpatientrelease. We characterizedAlbrecht,Davis andBroten as carving a narrow exception to the rule that the State need not prove a recent overt act whenthe offender is totally confined. We distinguished the suspended sentence from the community placementreleases inAlbrecht,Davis, and Broten. We reasoned that Kelley's confinement at the time the State filed its petition was the result ofthe 1980 rape, notthe assault ofhis girlfriend while on outpatient release. This ruling in Kelley should be probed. Regardless ofbenefiting from a suspended 18

### No. 32882-1-111 In re Det. of Jones

sentence and being on communityplacement, Timothy Kelley gained the opportunity to commit a recent overt act. The opportunity to commit anotherviolent sexual act generates the requirement that the State prove a recent overt act. The constitution allows

a civil commitment only ifthe 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 Deryle Hovinga in 

### 1981 for statutory rape ofa nine-yearold girl. In 

### 1988, Hovinga was released into the community on parole. The State returned Hovinga to prison in 

### 1992 because ofparole violations. He remained in prison for another eleven years, and, before his release, the State filed apetition 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 ofsimilarbehavior. Hovinga may have alternative rulings. This court distinguishedAlbrechton the basis that Hovinga was released on parole in lieu ofservinghis full sentence, as opposed to receiving community placement. This first ruling should be questioned as the Kelley ruling was doubted. TheHovinga court also affirmed the commitment ofDeryle Hovinga on the ground that the parole violation constituted a sexually violent act. Since Hovinga 

### 19No. 32882-1-111 

### In re Det. of Jones

returned to prison and remained in prison at the time ofthe filing ofthe 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 outpatientrelease, on the one hand, and community custody on the otherhand has no legitimate difference. Nor does the difference between community placement, the predecessor ofcommunity custody, and community custody establish a reason to distinguish the facts in

### Albrecht,Davis, and 

### Broten from the circumstances ofJames Jones. Regardless ofthe 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 offenderhas the opportunity to commit a recent overt act. We need notreconcile 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 commitJames 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 ofthe assault. We disagree. We only have sketchy facts and lack any testimony under oath. We cannotjudgewhether the incident involved an act ofviolent sexualpredation. We 20No. 32882-1-111 In re Det. of Jones

would take from James Jones his right to have ajury determine beyond a reasonable doubt whetherthe September 6 incident qualifies as a recent overt act. The State also forwarded a similar argument inIn re Detention of Davis, 109 Wn. App. 734 (2002). TheDavis court rejected the argument. The court notedthatthe facts in the record ofDavis' unauthorized contact withthe 15-year-old boy did not conclusivelyprove that Davis' conductwas ofa sexually violent nature or created a reasonable apprehension ofsuch harm. We do not wish someone with the currentpropensity ofsexual violence to be free to prey on othervictims. We note, however, thatthe State, ifit deemedJames Jones to be

a sexually violentperson as a result ofthe 1997 rapes, couldhave filed a petition before Jones' release to community custody on December 9, 2010. The State, onremand, remains free to confine James Jones as a sexually violentpredator ifitproves beyond a reasonable doubt the "rough sex" on September 6, 2011 tobe a recent overt act. CONCLUSION We reverse the trial court'sjudgmentreferring James Jones for civil commitment

as a sexually violentpredator. We remand for a trial onwhetherJames Jones committed

a recent overt act sufficientto commithim as a sexually violentperson. A majority ofthe panel has determined this opinion will not beprinted in the

21No. 32882-1-III In re Det. of Jones Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040.

WE CONCUR:

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