                                                                                         rOURT OF
                                                                                                  FILED
                                                                                                     APPEALS
                                                                                               DIVISION
                                                                                     2015 FEB 24
                                                                                                 Pi 9 30
                                                                                     STATE OF
                                                                                                   WASHINGTONd
                                                                                     BY

    IN THE COURT OF APPEALS OF THE STATE OF WASi'                                                    aTON
                                               DIVISION II

 In re the Detention of:                                                        No. 45120 -4 -II


 MARK ROBINSON,
                                                                          UNPUBLISHED OPINION
                            Appellant.




         MAXA, J. —     Mark Robinson appeals his order of civil commitment as a sexually violent

predator ( SVP).    He argues that there was insufficient evidence that he was likely to engage in

predatory acts of sexual violence if not confined in a secure facility, and therefore that the

evidence did not support the jury' s verdict that he is an SVP. We disagree and affirm

Robinson' s civil commitment as an SVP.


                                                  FACTS


         From the early 1990s until his arrest for rape in 2000, Robinson worked as a truck driver.

Robinson admitted that he raped at least 12 women beginning in the late 1990s, many of whom

were prostitutes. He would pick up his victims in his truck, subdue them with threats of force,

and rape them.



         In June 2000, Robinson picked up a female hitchhiker in his truck and raped her.

Robinson was arrested and charged with first degree rape and second degree kidnapping. He

pled   guilty   and was sentenced   to 143   months   in   prison.   He   participated   in treatment for. 12
45120 -4 -II




months while incarcerated, but made minimal progress. Near the end of his sentence in May

2012, the State petitioned the trial court to civilly commit Robinson as an SVP.

        At trial, the State presented evidence relating to the likelihood that Robinson would

engage in predatory acts of sexual violence if not confined in a secure facility. Robinson

testified in his deposition and at trial about the rape for which he was convicted and admitted to


raping at least 12 women. A police officer who investigated and arrested Robinson testified that

Robinson claimed to have raped some 60 women over a five -year period.

        Both the State and Robinson called experts to provide opinions as to whether Robinson


was likely to reoffend in the future. The State' s expert, Dr. Mark Patterson, testified that he had

diagnosed Robinson with the mental abnormalities of sexual sadism and frotteurism. He further


testified that in his professional opinion Robinson was likely to commit additional violent sexual

offenses if released into the community, and that continued supervision and treatment would not

adequately diminish this likelihood. Dr. Patterson testified that he applied actuarial instruments

and his clinical judgment in assessing Robinson' s risk of reoffending.

        Robinson' s expert witness, Dr. Jan Looman, favored a stricter actuarial approach that did


not take into account clinical judgment. He offered the jury a different actuarial assessment of

Robinson' s risk of reoffending, as well as his opinion on the shortcomings of Dr. Patterson' s

methods. Dr. Looman also testified that, in his opinion, Robinson' s sexual sadism was in

remission.




        After trial, the jury returned a verdict that Robinson was an SVP. The trial court

subsequently issued an order of commitment, which Robinson now appeals.




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                                                        ANALYSIS


           Robinson argues that there was insufficient evidence to support the finding that he was

likely to engage in predatory acts of sexual violence if not confined in a secure facility, as

required under          RCW 71. 09. 020( 18). We disagree.

A.    STANDARD OF REVIEW


           We treat sufficiency challenges to SVP civil commitment determinations like sufficiency

challenges to criminal convictions. In re Det. of Thorell, 149 Wn.2d 724, 744, 72 P. 3d 708

 2003).     Under the applicable standard of review, we view the evidence in the light most

favorable to the State and ask whether the evidence so viewed was " sufficient to persuade a fair -

minded, rational person that the State has proved beyond a reasonable doubt that [ the

respondent]        is   a   sexually   violent predator."   State v. Hoisington, 123 Wn. App. 138, 147, 94 P. 3d

318 ( 2004).       We defer to the trier of fact on determinations of witness credibility and evidentiary

weight. In re Det. ofSease, 149 Wn. App. 66, 80, 201 P. 3d 1078 ( 2009).

B.         LEGAL PRINCIPLES


           Under RCW 71. 09. 060, to civilly commit Robinson the State had to prove beyond a

reasonable doubt that he was a sexually violent predator within the meaning of the commitment

statute.    In    re   Det. of Post, 170 Wn.2d 302, 309 - 10, 241 P. 3d 1234 ( 2010). RCW 71. 09. 020( 18)


defines    a "[   s] exually violent predator" 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.




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This definition contains three elements that the State was required to prove beyond a reasonable


doubt in order to civilly commit Robinson as an SVP:

             1) that the respondent " has been convicted of or charged with a crime of sexual
            violence," (   2) that the respondent " suffers from a mental abnormality or personality
            disorder,"and ( 3) that such abnormality or disorder " makes the person likely to
            engage in predatory acts of sexual violence if not confined in a secure facility."

Post, 170 Wn.2d at 309 -10 ( quoting RCW 71. 09. 020( 18)).

            Robinson does not contest the first two elements, but argues that the State failed to


present sufficient evidence supporting the third: that he was " likely to engage in predatory acts

of sexual violence if not confined in a secure facility" as required in RCW 71. 09. 020( 18).

            A person is " likely to engage in predatory acts of sexual violence" within the meaning of

RCW 71. 09.020( 18) if "the person more probably than not will engage in such acts if released

unconditionally from detention             on   the sexually   violent predator petition."   RCW 71. 09. 020( 7).


The State' s evidence must be sufficient to prove beyond a reasonable doubt that the person to be

committed        has "   serious   difficulty   controlling behavior."   Thorell, 149 Wn.2d at 744 -45. 1 But the

evidence " need not rise to the level of demonstrating the person is completely unable to control

his   or   her behavior." Id. at 742.


C.          SUFFICIENCY OF THE EVIDENCE


            1.    Evidence Regarding Robinson' s Behavior

            The State presented evidence regarding Robinson' s past and present behavior from which

the jury could infer that Robinson was likely to engage in future predatory acts of sexual



1 If the person is not totally confined at the time of the petition, RCW 71. 09. 020( 9) also requires
that the likelihood be evidenced by a recent overt act. This requirement is inapplicable here
because Robinson was totally confined.
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45120 -4 -II



violence if not confined in a secure facility. The evidence, viewed in the light most favorable to

the State, showed that Robinson had a history of predatory sexual violence and that he was

unable to control the other factors that led him to offend.


        First, the State presented evidence of Robinson' s past violent sexual offenses. The jury

heard Robinson' s deposition and trial testimony, during which he described the rape for which

he was convicted and admitted to raping at least 12 women. The jury also heard testimony from

the police officers who investigated and apprehended Robinson. One officer testified that


Robinson previously claimed to have raped some 60 women over a five -year period. The same

officer said that he found in Robinson' s truck a " rape kit" of tools to subdue unwilling sex

partners. Report of Proceedings ( RP) at 179. Overall, it was clear from the evidence presented


that Robinson had committed numerous uncharged predatory acts of sexual violence.

         In assessing whether an individual is a sexually violent predator, prior sexual history is

highly probative   of   his   or   her propensity for future   violence."   In re Pers. Restraint of Young,

122 Wn.2d 1, 53, 857 P. 2d 989 ( 1993).          The jury could reasonably infer from Robinson' s

established history of offenses that he was at a high risk of reoffending if he was unable to

control the factors that previously led him to offend.

        Second, the State presented evidence that Robinson had not learned to control the factors


that previously led him to offend. Robinson admitted in his deposition that he needs ongoing

treatment for sexual deviancy. He stated that he believed it was risky for him to be around

women in general, and explained that his support system in the community would be limited to

former cell mates and possibly family members. He also admitted that he had not fully complied

with the requirements of his treatment program while incarcerated. When cross -examined at


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45120 -4 -II




trial, Robinson said that his urges to rape women will "never go away completely" and that while

he no longer experienced those urges he could not say how long it had been since he last felt

them. From this evidence, the jury could find that Robinson had poor control over his mental

illness and the lifestyle factors that led him to violent rape.

        2.     Dr. Patterson' s Testimony

        Dr. Patterson testified that he assessed Robinson' s risk of reoffending, using a combined

actuarial- clinical approach. First, Dr. Patterson assessed Robinson' s static risk factors for

reoffending, which do not change over time, using actuarial instruments based on studies

associating those risk factors with reoffending. These actuarial tests predicted somewhere

between a 15 percent and a 59 percent likelihood that Robinson would reoffend within 10 years.

Dr. Patterson testified that the actuarial results should not be construed as clear percentages of

risk. Instead, they should be combined with an analysis of a person' s score relative to the scores

of other offenders to determine whether that person' s risk is greater or lower than the population


risk indicated by the actuarial test. And Dr. Patterson testified that the results generally

underestimate a person' s lifetime risk of reoffending because they are based on studies that were

limited to specified time periods.


        Second, Dr. Patterson testified that he also utilized his clinical judgment in assessing

Robinson. Dr. Patterson explained that he structured his clinical assessment of Robinson' s


dynamic risk factors, which can change over time, using an instrument called the Structured Risk

Assessment - Forensic Version ( SRA -FV).       Among the dynamic risk factors were Robinson' s

proclivity for sexualized violence, sexual preoccupation, callousness, impulsiveness, resistance

to rules, and dysfunctional coping strategies. Dr. Patterson testified that he used the SRA -FV to

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45120 -4 -II




determine the proper reoffending risk indicated by the actuarial tools and also as a measurement

of his overall clinical assessment of Robinson' s " long -term vulnerabilities for sexual

reoffending."    RP at 306. Dr. Patterson' s clinical assessment supported his opinion that

Robinson' s risk was actually greater than that indicated by the static risk factor actuarial

instruments.


        Based on this analysis, Dr. Patterson testified that in his professional opinion, Robinson


was likely to commit another violent sexual offense if released into the community. He also

concluded that continued supervision and treatment would not adequately diminish this

likelihood.


        3.     Robinson' s Arguments


        Robinson argues the evidence against him was insufficient to support the jury' s verdict

that he was an SVP because Dr. Patterson' s testimony does not prove beyond a reasonable doubt

that he was likely to engage in predatory acts of sexual violence if not confined in a secure

facility for several reasons.

        First, Robinson argues that the actuarial tools Dr. Patterson utilized did not provide


sufficient support for Dr. Patterson' s opinion that Robinson was likely to reoffend. He claims

that the tools are irrelevant because they can only project whether a person will reoffend at some

point in the future and therefore do not provide evidence of the current risk of reoffending. But

Robinson seems to misconstrue the nature of the actuarial tests. The tests provide a rough


estimate of the current risk that a person will reoffend within a certain time period. Robinson

seems   to   confuse   this   with   the future   risk of   reoffending   at certain   time intervals.
45120 -4 -II



        Moreover, even if Robinson' s characterization of the tests was correct, our Supreme


Court has held that the State need not prove that a person will offend within any particular time

period in order to establish beyond a reasonable doubt that the person is likely to engage in

predatory acts of sexual violence if not confined in a secure facility. In re Det. ofMeirhofer, No.

89251 -2, 2015 WL 596928,         at *   5 ( Wash. Feb. 12, 2015);   In re Det. ofMoore, 167 Wn. 2d 113,

124, 216 P. 3d 1015 ( 2009).       Therefore, Dr. Patterson' s testimony about Robinson' s risk of

reoffense in the future, based on the actuarial tests, provided substantial evidence supporting the

third element of the SVP definition.


        Second, Robinson argues that the results of the actuarial instruments themselves did not


support a finding beyond a reasonable doubt that he was likely to reoffend if not confined.

Robinson states that the actuarial tests as administered by Dr. Patterson predicted somewhere

between a 15 percent and a 59 percent likelihood that Robinson would reoffend within 10 years,


and that statistical probability does not constitute proof beyond a reasonable doubt.

        Robinson is correct that a probability of up to 59 percent would not constitute proof

beyond a reasonable doubt that something will actually occur.. But that is different from saying

that a probability of up to 59 percent cannot show beyond a reasonable doubt that something is

likely. In fact, a statistical probability over 50 percent indicates that something is likely. As a

result, the State must only prove that the probability of the defendant' s reoffending exceeds 50

percent.   In   re   Det. of Brooks, 145 Wn.2d 275, 297 -98, 36 P. 3d 1034 ( 2001),    overruled on other




grounds by Thorell, 149 Wn.2d 724. Viewed in the light most favorable to the State, a statistical

probability of up to 59 percent supports a belief beyond a reasonable doubt that Robinson was

likely to reoffend.


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45120 -4 -I1



         Third, Robinson asserts that Dr. Patterson' s opinion accorded improper weight to the


dynamic risk factors and his own clinical judgment when the standardized actuarial assessment


of Robinson' s static risk factors seemed to show a fairly low likelihood that Robinson would

reoffend. However, experts may resort to their clinical judgment when assessing the risk that a

sexual offender will reoffend.   See Meirhofer, 2015 WL 596928,           at *   2, * 5; Thorell, 149 Wn.2d at


755 -56. This is often necessary because actuarial tests alone tend to underestimate the risk that

an individual will reoffend. Meirhofer, 2015 WL 596928 at * 2 n.4. Dr. Patterson testified that


his clinical assessment of Robinson informed his opinion that Robinson was likely to reoffend.

He combined this assessment with his use of the SRA -FV to assess Robinson' s dynamic risk

factors.2 In his judgment, Robinson was more likely to reoffend than the actuarial results alone

suggested. When viewed in the light most favorable to the State, Dr. Patterson' s testimony

supported the jury' s finding that Robinson was likely to engage in predatory acts of sexual

violence if not confined in a secure facility.

         Fourth, Robinson argues that " Dr. Patterson' s testimony was largely a reflection of his

view   that   sexual sadism cannot go   into   remission."   Br. of Appellant at 19. Dr. Patterson did not


testify to holding any such view. But regardless of his views on that matter, he indicated that in

his clinical judgment Robinson remained a sexual sadist based on his assessment of Robinson' s




2 Robinson appears to suggest that Dr. Patterson' s use of the SRA -FV for this purpose is a novel
and not generally accepted technique in the field of forensic psychology. This argument
suggests that Dr. Patterson' s testimony was inadmissible under the Frye test See, e. g., State v.
Green, 182 Wn. App. 133, 148 -49, 328 P. 3d 988, review denied, 337 P. 3d 325 ( 2014); see             also

Fryev. United States, 293 F. 1013 ( D. C. Cir. 1923). But Robinson did not challenge Dr.
Patterson' s testimony on Frye grounds at trial and does not argue on appeal that the court erred
in admitting it.
45120 -4 -II




recent fantasies and past actions. He was cross -examined at length on the topic, and Dr. Looman

provided an alternative opinion that Robinson' s sexual sadism was in remission. For purposes of


analyzing the sufficiency of the evidence, we presume that the jury credited Dr. Patterson' s

opinion over Dr. Looman' s opinion. Regardless of whether Dr. Patterson believed sexual sadism


could go into remission, Dr. Patterson' s testimony supported a finding that Robinson' s sexual

sadism was not in remission.


        Finally, Robinson argues that Dr. Patterson' s opinion that Robinson was likely to

reoffend was based primarily on his diagnosis of sexual sadism. But as Dr. Patterson made clear

during his testimony, he considered a number of static and dynamic risk factors and assessed the

etiology of Robinson' s mental abnormality, Robinson' s lack of an adequate support system, and

Robinson' s failure to fully engage in treatment. Robinson dismisses this clinical assessment as a

 purely arbitrary or speculative" exercise, Br. of Appellant at 19, but Dr. Patterson based his

judgment on his review of the case records and his interviews with Robinson.


                                          CONCLUSION


        The State provided evidence regarding Robinson' s prior sexual history and his current

inability to control the factors that previously led him to offend. Dr. Patterson testified that

based on actuarial tools and his clinical assessment, in his professional opinion Robinson was


likely to commit another violent sexual offense if released into the community. Viewing the

evidence in the light most favorable to the State, we hold that there was sufficient evidence to


support the jury' s finding that Robinson was likely to engage in predatory acts of sexual violence

if not confined in a secure facility. Accordingly, we reject Robinson' s sufficiency of the

evidence claim.




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45120 -4 -II




        We affirm Robinson' s civil commitment as an SVP.


        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW


2. 06. 040, it is so ordered.




 We concur:




    HANSON, C. J.




 LEE, J.




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