Detention Of Dennis W. Breedlove, Respondent V. State Of Washington, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Detention of
rn _
DENNIS WAYNE BREEDLOVE,
Respondent.
CO 	-i-u'|'
No. 70750-7-1 	k 	%£.
kj~> 	} '•", tr>
DIVISION ONE 	^ 	^o
UNPUBLISHED OPINION
FILED: May 18, 2015
Trickey, J. — An individual confined as a sexually violent predator (SVP)
must 	present 	sufficient evidence 	that 	he 	has 	"so 	changed" 	to 	obtain 	an
unconditional release trial. 	Here, the petitioner relies on a report that does not
meet the necessary criteria to establish a sufficient change such that a release trial
should be granted. Accordingly, we reverse the trial court's decision granting an
unconditional release trial.
FACTS
Dennis Breedlove is confined as a sexually violent predator (SVP) under
chapter 71.09 RCW, Washington's SVP statute. 	That statue requires annual
review of an SVP status. 	RCW 71.09.070(1). 	Breedlove's annual reviews, since
his commitment in 2004, have supported his continued detention. 	In June 2011,
the trial court found that Breedlove continued to meet the criteria for commitment
as an SVP and that he failed to present prima facie evidence that his progress
warranted an unconditional release trial. 	Breedlove did not demonstrate that a

No. 70750-7-1 / 2
less restrictive alternative (LRA) was in his best interest or that conditions could be
imposed that would adequately protect the community.1
On January 28, 2013, the Special Commitment Center (SCC) completed
another 	review 	pursuant 	to 	RCW 	71.09.070(1). 	In that 	review, 	Wendi 	L.
Wachsmuth, 	Ph.D, 	opined 	that 	Breedlove continued 	to 	meet the criteria 	for
commitment as an SVP and that no less restrictive alternatives could be imposed
that would adequately protect the community, nor would such restrictions be in
Breedlove's best interest. 	Dr. Wachsmuth cited specific examples of failed or
ignored treatment along with a history of malfeasance at the SCC.
In 2012, Breedlove retained Christopher J. Fisher, Psy.D to assess his
current condition. 	Dr. Fisher noted that since Breedlove's commitment in 2004, he
"only participated in two brief periods of focused sex offender treatment."2 In 2007,
Breedlove was a "stellar participant" in a 12-week introductory group, "Awareness
and Preparation."3 Breedlove did not continue into the Cohort group at that time.
In early 2009 he started a Cohort group, but only stayed in the group for
approximately one month. Three years later, in March 2012, Breedlove completed
a 12- or 24-week "Biblical Counseling 	Foundation Self Confrontation Course"
designed to assist individuals in changing their cognitive thoughts, feelings, and
behaviors based on biblical principles.4 After receiving a behavioral management
report for marijuana possession, Breedlove attended a "Counselor Assisted Self
1 The Mack House (the LRA) does not provide adequate supervision for an
untreated high-risk sex offender.
2 Clerk's Papers (CP) at 168.
3 CP at 168.
4 CP at 169.

No. 70750-7-1 / 3
Help Group," in 2008 through 2009, where he was described to be diligently
working on sobriety, including the relationship between his drug addiction and
sexual offending.5
Dr. 	Fisher noted and agreed with the most recent annual 	review that
focused on "Breedlove's mental disorder, namely pedophilia, and states that there
is 	little 	indication 	that 	his 	mental 	disorder 	has 	changed 	since 	his 	initial
commitment."6
Dr. Fisher set forth the definition of "pedophilia" in the Diagnostic and
Statistical Manual of Mental Disorders, Fourth Edition, Text Revision (DSM-IV-TR)
and had "little doubt" that Breedlove "continue^] to show evidence of pedophilia"
as defined in DSM-IV-TR.7 	Even so, Dr. Fisher criticized the annual review for its
failure to address the considerable changes that have occurred in the field of sex
offender risk assessment. 	Those changes, he opines, form the basis to judge
Breedlove's risk level as quite different now from when he was first committed. As
an example, he cited a 2003 chapter 71.09 RCW evaluation performed by Dr.
Packard 	that 	used 	what 	Dr. 	Fisher 	described 	as 	outdated 	and 	obsolete
methodologies and 	a "gross simplification" of an 	adequate sex offender risk
assessment.8
Dr. Fisher concluded that Breedlove no longer met the definition of an SVP
"by virtue of the changes 	he 	has 	made in 	himself through treatment and 	a
generalized maturational process over the last 12 years, combined with wholesale
5 CP at 170.
6 CP at 184.
7 CP at 186.
8 CP at 184.

No. 70750-7-1 / 4
changes in the field of risk assessment and large amounts of new empirical data
now available that was not available at the time of his initial commitment."9
After review of the documents and oral argument, the trial court issued the
following order:
[Pursuant to 	RCW 71.09.080 the court finds 	Mr. Breedlove has
shown cause to schedule a trial on (1) whether he has changed [and]
that he no longer meets criteria of a sexually violent predator; and (2)
whether he should be released to a less restrictive alternative.[10]
The trial court denied the State's motion to reconsider the order granting
Breedlove an unconditional release trial. 	The State does not object to a trial on
whether Breedlove should be released to a less restrictive alternative.
The State filed a motion for discretionary review arguing that the trial court
committed obvious error in granting a release trial when Breedlove showed no
evidence of change under the statutory criteria. 	The State also argued that the
statutory term "treatment" is limited to sex offender specific treatment and the trial
court erred in failing to support the State's interpretation.
A commissioner of this court agreed that the lack of evidence of change in
Breedlove's mental condition of pedophilia warranted discretionary review, but
found the trial court's rejection of the State's statutory interpretation of the term
"treatment" did not. 	Accordingly, the commissioner granted discretionary review
as to only whether the trial court erred in granting an unconditional release trial on
the basis that Breedlove had changed.
9 CP at 186.
10 CP at 10.

No. 70750-7-1 / 5
ANALYSIS
A sexually violent predator is defined 	as "any person who has 	been
convicted of or charged with a crime of sexual violence and who suffers from a
mental abnormality or personality disorder which 	makes the person likely to
engage in predatory acts of sexual violence if not confined in a secure facility."
RCW 71.09.020(18). The standard for "[Ijikely" is "more probably than not." RCW
71.09.020(7).
Because indefinite civil commitment gives rise to serious constitutional
concerns, the SVP statute contains certain procedural safeguards, 	including
mandating annual order to show cause hearings under RCW 71.09.090. At a show
cause hearing, the State must make a prima facie case that the individual still
meets the criteria of an SVP. 	The SVP also has the opportunity to present
evidence that they have "so changed" since the time of their commitment to
warrant a new full evidentiary hearing or a new commitment trial. 	In re Meirhofer,
_ 	Wn.2d _, 343 P.3d 731 (2015); In re Pet, of Petersen, 145 Wn.2d 789, 798,
42 P.3d 952 (2002). 	The trial court may not weigh the evidence, but rather must
simply determine whether sufficient evidence has been presented to establish
probable cause that the SVP's continued civil commitment is unlawful. 	Petersen,
145 Wn.2d at 797-98 ("Probable cause exists if the proposition to be proven has
been prima facie shown."); In re Pet, of Ambers, 160 Wn.2d 543, 557, 158 P.3d
1144(2007).
Each year, as required by statute, the State had a qualified professional
review Breedlove's mental condition to determine whether or not his confinement

No. 70750-7-1 / 6
was still warranted. 	RCW 71.09.070(1); WAC 388-880-031. 	Under the statutory
scheme, after each annual review, a show cause hearing is held to determine
whether 	probable 	cause 	exists 	for a 	new evidentiary 	hearing 	on 	the 	civil
commitment. 	RCW 71.09.090(1 ),(2)(a). 	The court must order a new evidentiary
hearing if, at the annual show cause hearing, the State fails to present prima facie
evidence establishing that the committed person "continues to meet the definition
of a sexually 	violent 	predator" 	and that a less 	restrictive 	alternative is not
warranted. 	RCW 71.09.090(2)(a)-(c). 	In making this showing, the State can rely
exclusively on the annual review report. 	RCW 71.09.090(2)(b).
Even if the State meets its prima facie burden, the confined person may still
obtain a new evidentiary hearing if the court determines that "probable cause exists
to believe that the person's condition has so changed," that he is no longer a
sexually violent predator, or that a less restrictive alternative than full confinement
is appropriate. 	RCW 71.09.090(2)(c). 	Apart from the annual review process, the
confined person may independently petition the court for release at any time. RCW
71.09.090(2)(a); WAC 388-880-050(3)(b).
As a result of legislation in 2005, the confined person cannot establish
probable 	cause 	merely 	by 	showing 	advancing 	age 	or 	any 	other 	"single
demographic change." 	RW 71.09.090(4)(c). 	If the State satisfies its prima facie
burden, a full evidentiary hearing is available only upon a showing that the confined
person has undergone either (1) a profound and permanent physiological change,
such as a stroke, 	paralysis, 	or dementia, 	potentially 	rending 	him 	no 	longer
dangerous; or (2) a profound mental change by receiving psychological treatment

No. 70750-7-1 / 7
services during confinement—potentially rendering him 	no longer mentally ill.
RCW 71.09.090(4)(b)(i),(ii); State v. McCuistion. 174 Wn.2d 369, 392, 275 P.3d
1092 (2012), cert, denied. _ 	U.S._, 133 S. Ct.1460, 185 L. Ed. 2d 368 (2013).
This court reviews de novo a trial court's legal conclusion as to whether
evidence meets the standard of probable cause required for a sexually violent
predatorto obtain a newcommitment trial. Petersen, 145 Wn.2d at 799. The court
must order a full evidentiary hearing on the person's civil commitment if the court
finds 	either 	(1) 	a 	deficiency 	in 	the State's 	prima 	facie 	case 	for 	continued
commitment, or (2) sufficiency of proof by the committed person that he has "so
changed" that he no longer meets the criteria for a sexually violent predator. RCW
71.09.090(2)(c); see Petersen, 145 Wn.2d at 798.
As to the first issue, no one claims the State's evidence is deficient. 	As to
the second issue, Breedlove's own evidence is insufficient to show that he has "so
changed" that confinement is no longer warranted. 	Dr. Fisher's report failed to
identify a substantial change in Breedlove's mental disorder, pedophilia. His report
stated:
The most recent Annual Review focuses on Mr. Breedlove's mental
disorder, namely pedophilia, and states that there is little indication
that this mental disorder has changed since his initial commitment. 	I
agree with this finding.!111
Dr. Fisher contends that Breedlove's risk level should be judged differently
in 	light of changes in 	sexual 	recidivism 	risk 	assessment, 	including 	research
findings of age as a protective factor and declining base rates of sexual recidivism
in 	the 	country. 	Dr. 	Fisher criticized 	the 	risk 	assessment 	method 	used 	for
11 CPat184.

No. 70750-7-1 / 8
Breedlove's initial commitment and opined that Breedlove's risk score at his initial
commitment is "now associated with dramatically lower recidivism estimates."12
Essentially, 	Dr. 	Fisher 	challenges the 	initial 	commitment finding 	that
Breedlove met the criteria for an SVP. 	This issue was recently addressed in
McCuistion, where the Supreme Court held that evidence from a detainee that he
was not and had never been mentally ill, would not support relief through the
annual review process because it was in effect a collateral attack on the initial order
of commitment. 	174 Wn.2d at 386. 	The initial finding is "a verity in determining
whether an individual is mentally ill and dangerous at a later date." 	McCuistion,
174 Wn.2d at 384-85. 	The 2005 amendments are "intended only to provide a
method of revisiting the indefinite commitment due to a relevant change in the
person's condition, not an alternative method of collaterally attacking a person's
indefinite commitment for reasons unrelated to a change in condition." 	Laws of
2005, ch. 344, §1.
Dr. 	Fisher's 	report 	did 	not 	identify 	any 	evidence 	demonstrating 	that
Breedlove had experienced a substantial change. As the report noted:
[l]n examining the considerable changes to the field of sex offender
risk assessment that have occurred since Mr. 	Breedlove's initial
commitment, as well as the changes that he himself has undergone,
it is far too simplistic to say that because he was once found to be an
SVP, he still meets criteria today.'131
Dr. Fisher's conclusory opinion is that Breedlove never was an SVP. 	Dr. Fisher's
report did state that Breedlove had changed through treatment, but failed to
substantiate that statement with 	any evidence of that change. 	Indeed, 	the
12 CP at 185.
13 CP at 184.
8

No. 70750-7-1 / 9
evidence is conflicting as to whether the treatment was 12 or 24 weeks long. 	No
specific evidence of the content of the meetings was presented. 	Further, the
awareness program that Breedlove did complete was merely an 	informational
course about the treatment offered.
The 	trial 	court 	"must 	look 	beyond 	an 	expert's 	stated 	conclusions 	to
determine if they are supported by sufficient facts." 	In re Pet, of Ward, 125 Wn.
App. 381, 387, 104 P.3d 747 (2005), superseded bv statute on other grounds as
recognized bv McCuistion, 174 Wn.2d at 397-98. 	The State put forth evidence
that Breedlove continued to show sexual interest in children even when he was in
custody.
Pr. Fisher's report fails to cite any changes that Breedlove has made.
Attending a group based on "biblical principles" does not demonstrate change. 	It
only demonstrated participation.
Because Breedlove has failed to demonstrate any change, we need not and
do not discuss whether the trial court appropriately defined treatment. 	The trial
court's decision 	to grant an 	unconditional 	release trial 	is reversed; the less
restrictive alternative trial may proceed by agreement of the parties.
WE CONCUR:
\
fT^i/ko^i 	, -J
£££,</ t/^*r~, 	V- .sJ .
?