Henrickson v. State (2000)

Id. at 689.

RCW 71.09.030(2)(a)(iii) (2009); RCW 71.09.030(2)(b) (2009); former RCW 71.09.030 (2008); see also Marshall, 156 Wn.2d at 156-58; Henrickson, 140 Wn.2d at 689, 692-93 . ¶40 The initial determination of whether a person is confined for an act that qualifies as a recent overt act is a two step inquiry.

RCW 71.09.030(2)(a)(iii) (2009); RCW 71.09.030(2)(b) (2009); former RCW 71.09.030 (2008); see also Marshall, 156 Wash.2d at 156-58 , 125 P.3d 111 ; Henrickson, 140 Wash.2d at 689, 692-93 , 2 P.3d 473 . ¶ 40 The initial determination of whether a person is confined for an act that qualifies as a recent overt act is a two step inquiry.

See Foucha, 504 U.S. at 80 (holding that continued confinement of an insanity acquittee was impermissible absent proof by clear and convincing evidence of both current mental illness and dangerousness); Henrickson, 140 Wn.2d at 692 (stating that “[t]he Washington sexually violent predator statute is premised on a finding of the present dangerousness of those subject to commitment.”); former RCW 71.09.020(1) (1995) (defining a sexually violent predator as “likely to engage in…

See In re Det. of Henrickson, 140 Wash.2d 686, 692 , 2 P.3d 473 (2000) ("The Washington sexually violent predator statute is premised on a finding of the present dangerousness of those subject to commitment."); Foucha v. Louisiana, 504 U.S. 71, 78 , 112 S.Ct. 1780 , 118 L.Ed.2d 437 (1992) (requiring the dual predicates of current mental illness and current dangerousness).

See Albrecht, 147 Wash.2d at 5 , 51 P.3d 73 (offender arrested for violating a community placement condition 30 days after release from prison); Henrickson, 140 Wash.2d at 689, 691 , 2 P.3d 473 (offenders, Henrickson and Halgren, were released into the community for three years and three months, respectively, before reincarcerated); Young, 122 Wash.2d at 42 , 857 P.2d 989 (offender Cunningham was released and living in the community for over four months prior to the State's …

See id. at 5 (offender arrested for violating a community placement condition 30 days after release from prison); Henrickson, 140 Wn.2d at 689, 691 (offenders, Henrickson and Halgren, were released into the community for three years and three months, respectively, before being reincarcerated); Young, 122 Wn.2d at 42 (offender Cunningham was released and living in the community for over four months prior to the State’s filing its petition); cf. In re Det. of Marshall, 156 Wn.…

Our Supreme Court has held that due process does not require proof of a ROA "when, on the day the petition is filed, an individual is incarcerated for a sexually violent offense." In re Henrickson, 140 Wash.2d 686 , 689, 2 P.3d 473 (2000). ¶ 18 In Henrickson, the two defendants were briefly released into the community pending sentencing and appeal. 140 Wash.2d at 689, 691 , 2 P.3d 473 .

Our Supreme Court has held that due process does not require proof of a ROA “when, on the day the petition is filed, an individual is incarcerated for a sexually violent offense.” In re Det. of Henrickson, 140 Wn.2d 686, 689 , 2 P.3d 473 (2000). ¶18 In Henrickson, the two defendants were briefly released into the community pending sentencing and appeal. 140 Wn.2d at 689, 691 .

Henrickson, 140 Wash.2d at 692, 695 , 2 P.3d 473 (citations omitted) (emphasis added).

Henrickson, 140 Wn.2d at 692, 695 (citations omitted) (emphasis added).

Henrickson, 140 Wash.2d at 689, 691 , 2 P.3d 473 .

Henrickson, 140 Wn.2d at 689, 691 .

However, this court did not address the Court of Appeals’ reasoning but held, “[W]hen, at the time the petition is filed, an individual is incarcerated for a sexually violent offense, or for an act that itself would have constituted a recent overt act, due process does not require the State to prove a further overt act occurred between arrest and release from incarceration.” Id. at 697.

See Henrickson, 140 Wn.2d at 692 (“The Washington sexually violent predator statute is premised on a finding of the present dangerousness of those subject to commitment.”); Foucha v. Louisiana, 504 U.S. 71, 78 , 112 S. Ct. 1780 , 118 L.

See In re Det. of Henrickson, 140 Wash.2d 686, 692 , 2 P.3d 473 (2000) ("The Washington sexually violent predator statute is premised on a finding of the present dangerousness of those subject to commitment."); Foucha v. Louisiana, 504 U.S. 71, 78 , 112 S.Ct. 1780 , 118 L.Ed.2d 437 (1992) (requiring the dual predicates of current mental illness and current dangerousness). ¶ 45 Even assuming these long-past relationships were somehow involuntary, they do not establish Anderso…

Henrickson, 140 Wn.2d at 690, 698 .

Henrickson, 140 Wash.2d at 690, 698 , 2 P.3d 473 .

Henrickson, 140 Wn.2d at 696 (Henrickson’s convictions “would certainly qualify as ... a recent overt act” and Halgren’s conviction “would also qualify as a. . . recent overt act”). ¶18 Here, the trial court concluded that the act for which the petitioner was convicted, third degree rape, was a recent overt act based upon the nature of the rape, as alleged in the charging document and proved at the rape trial, and petitioner’s history of offenses and mental condition.

Halgren [’s] . . . conviction, based on a charge of unlawful imprisonment, would also qualify as a sexually violent offense or a recent overt act. 140 Wn.2d at 696 (citations omitted). ¶12 To the extent that the trial court in the instant matter may have read Henrickson to hold that communicating with a minor is per se a recent overt act where the defendant remains incarcerated, the trial court erred.

See In re Det. of Henrickson, 140 Wn.2d 686, 689 , 2 P.3d 473 (2000).

See Henrickson, 140 Wash.2d at 695 , 2 P.3d 473 .

Smith v. Jackson, 37 Ill.2d 379, 383-84 , 227 N.E.2d 366 (1967); In re Kenney, 66 Mass.App.Ct. 709, 713-14 , 850 N.E.2d 590 , review denied, 447 Mass. 1110 , 854 N.E.2d 441 (2006)). [15] Id. at 330-31, 169 P.3d 852 . [16] Id. at 331, 169 P.3d 852 . [17] Dudgeon, 146 Wash.App. at 223 , 189 P.3d 240 . [18] Id. at 224, 189 P.3d 240 . [19] Id. [20] See Dudgeon, 146 Wash.App. at 225 , 189 P.3d 240 (citing Albrecht, 147 Wash.2d at 9 , 51 P.3d 73 ); see also Henrickson, 140 Wash.2d…

App. at 225 (citing Albrecht, 147 Wn.2d at 9 ); see also Henrickson, 140 Wn.2d at 695 (“ ‘For incarcerated individuals, a requirement of a recent overt act under the Statute would create a standard which would be impossible to meet.’ ” (quoting Young, 122 Wn.2d at 41 )).

See Henrickson, 140 Wash.2d at 689 , 2 P.3d 473 (due process does not require proof of a recent overt act when an individual is incarcerated for "an act that by itself would have qualified as a recent overt act")(emphasis added). ¶ 49 Alternately, Froats contends, the incident resulting in his parole revocation does not rise to the level of a recent overt act because no one familiar with his offense history would conclude that his behavior was dangerous.

See Henrickson, 140 Wn.2d at 689 (due process does not require proof of a recent overt act when an individual is incarcerated for “an act that by itself would have qualified as a recent overt act” (emphasis added)). ¶49 Alternately, Froats contends the incident resulting in his parole revocation does not rise to the level of a recent overt act because no one familiar with his offense history would conclude that his behavior was dangerous.

See, e.g., Henrickson, 140 Wash.2d at 689, 691, 695-96 (appellate court reviewed offenders' histories and nature of charges leading to incarceration to determine whether convictions would qualify as recent overt acts.) The factual inquiry determines the factual circumstances of McNutt's history and mental condition, and the legal inquiry determines whether an objective person knowing those factual circumstances would have a reasonable apprehension of harm of a sexually viole…

See RCW 71.09.030(5) (limiting recent overt act requirement to petitions filed against an individual who `has since been released from total confinement')." Henrickson, 140 Wash.2d at 692-93 , 2 P.3d 473 . [33] RCW 71.09.030(1). [34] We cannot agree with the Albrecht majority's conclusion that incarceration for a community placement violation does not constitute "total confinement" under RCW 71.09.030(1) because the statutory definition of that term clearly includes incarcer…