                                                                                                 Filed
                                                                                           Washington State
                                                                                           Court of Appeals
                                                                                            Division Two

                                                                                              July 25, 2017




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
 In re Detention of:                                                   No. 47975-3-II

 BRIAN TAYLOR-ROSE.
                                                                  PUBLISHED OPINION



       MAXA, A.C.J. – Brian Taylor-Rose appeals his civil commitment as a sexually violent

predator (SVP) under RCW 71.09.060 following a jury trial.

       We hold that (1) the trial court did not err in instructing the jury that second degree child

molestation is a crime of sexual violence, (2) the State provided sufficient evidence that Taylor-

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

(3) the trial court did not err in instructing the jury to determine Taylor-Rose’s risk level if

released “unconditionally” from detention on the SVP petition, (4) the trial court did not err in

declining to expressly include “placement conditions” as evidence the jury could consider in

determining whether Taylor-Rose was likely to engage in predatory acts of sexual violence if not

confined to a secure facility, and (5) the trial court did not err by declining to give Taylor-Rose’s

proposed instruction about the State’s ability to bring a new SVP petition based on a recent overt

act following his release.

       Accordingly, we affirm Taylor-Rose’s commitment as an SVP.
No. 47975-3-II


                                              FACTS

       Taylor-Rose has two criminal convictions for sex offenses. In 1998, he pleaded guilty to

second degree child molestation. In 2009, he pleaded guilty to third degree child molestation. In

December 2012, before the end of Taylor-Rose’s sentence, the State filed an SVP petition

against him. The State used Taylor-Rose’s 1998 conviction as the predicate sexually violent

offense for the petition.

Trial Testimony

       At trial, the State presented several witnesses to testify about the conduct leading to

Taylor-Rose’s two convictions. Lourene O’Brien-Hooper, a community corrections officer who

supervised Taylor-Rose on and off for more than 10 years after he was released following his

1998 conviction, testified about his violations, arrests and high risk behavior while on

supervision. She also stated her concerns about Taylor-Rose’s deviant fantasies and arousal to

children and his violating the condition to not have contact with children.

       Dr. Harry Hoberman, a forensic psychologist, testified that in his expert opinion it was

more likely than not that Taylor-Rose would commit an act of sexual violence if not confined to

a secure facility. Hoberman explained how he arrived at that conclusion using various

assessments. His analysis included determining Taylor-Rose’s lifetime risk of sexual

reoffending. Hoberman also noted that the fact that Taylor-Rose would be under community

supervision if released did not impact his opinion about Taylor-Rose’s risk of reoffending.

       Taylor-Rose also testified. He stated that he no longer had deviant thoughts about

children. He also stated that he would not have an issue being around children if released.




                                                 2
No. 47975-3-II


However, he acknowledged that during earlier treatment sessions he had stated that, if released,

he probably would create more victims.

Jury Instructions

       The trial court instructed the jury on the three elements required to find Taylor-Rose met

the definition of SVP. The first element was that he had been convicted of a crime of sexual

violence. Two of the court’s instructions informed the jury that second degree child molestation

was a crime of sexual violence.

       The second element, which is not in dispute here, was that Taylor-Rose suffered from a

“mental abnormality or personality disorder which causes serious difficulty in controlling his

sexually violent behavior.” Clerk’s Papers (CP) at 18.

       The third element was that Taylor-Rose was likely to engage in predatory acts of sexual

violence if not confined to a secure facility. The trial court gave instruction 15, which explained

that “ ‘[l]ikely to engage in predatory acts of sexual violence if not confined in a secure facility’

means that the person more probably than not will engage in such acts if released

unconditionally from detention in this proceeding.” CP at 27. The instruction stated that the jury

could consider certain voluntary treatment options in making this determination. Taylor-Rose

argued against this instruction, and proposed an instruction similar to instruction 15 that removed

any reference to unconditional release and allowed the jury to consider his placement conditions

if released. The court declined to give Taylor-Rose’s proposed instruction.

Verdict and Appeal

       The jury returned a verdict finding that the State had proved beyond a reasonable doubt

that Taylor-Rose met the definition of an SVP. Pursuant to that verdict, the trial court issued an



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No. 47975-3-II


order of commitment confining Taylor-Rose to a special commitment center until such a time

when his mental abnormality and/or personality disorder had changed so that he could be

conditionally released or unconditionally discharged.

       Taylor-Rose appeals his commitment as an SVP.

                                           ANALYSIS

A.     LEGAL PRINCIPLES

       For a person to be committed as an SVP, RCW 71.09.060(1) requires the State to prove

beyond a reasonable doubt that the person is 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)1 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.

This definition contains three elements:

       (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)).

       Regarding the third element, 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




1
 RCW 71.09.020 has been amended since the events of this case transpired. However, these
amendments do not impact the statutory language relied on by this court. Accordingly, we do
not include the word “former" before RCW 71.09.020.


                                                4
No. 47975-3-II


engage in such acts if released unconditionally from detention on the sexually violent predator

petition.” RCW 71.09.020(7).

B.     INSTRUCTIONS ON “CRIME OF SEXUAL VIOLENCE”

       The first element the State must prove to show a person is an SVP is that the respondent

“has been convicted of or charged with a crime of sexual violence.” RCW 71.09.020(18)

(emphasis added). Taylor-Rose argues that the trial court improperly commented on the

evidence and relieved the State of its burden of proof when it gave two instructions stating that

second degree child molestation was a “crime of sexual violence.” We disagree.

       1.    Legal Principles

       Article IV, section 16 of the Washington Constitution states, “Judges shall not charge

juries with respect to matters of fact, nor comment thereon, but shall declare the law.” A trial

court makes an improper comment on the evidence if it gives an instruction that (1) conveys to

the jury his or her personal attitude on the merits of the case or (2) instructs the jury that matters

of fact have been established as a matter of law. State v. Levy, 156 Wn.2d 709, 721, 132 P.3d

1076 (2006). But because it is the trial court’s duty to declare the law, a jury instruction that

does no more than accurately state the law pertaining to an issue is proper. State v. Brush, 183

Wn.2d 550, 557, 353 P.3d 213 (2015). We review the instructions de novo to determine if the

trial court has improperly commented on the evidence. Levy, 156 Wn.2d at 721.

       Here, the trial court’s instructions stating that second degree child molestation was a

crime of sexual violence reflected a legal conclusion on that issue. If that legal conclusion was

correct, the court’s instructions accurately stated the law and did not constitute a comment on the

evidence.



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No. 47975-3-II


       2.    Analysis

       The SVP statute does not define the term “crime of sexual violence.” However, RCW

71.09.020(17) provides a list of offenses that qualify as a “sexually violent offense” and that list

includes second degree child molestation.

       Taylor-Rose argues that “crime of sexual violence” cannot mean the same thing as

“sexually violent offense” based on the principle that when the legislature uses different

language in the same statute, different meanings are intended. State v. Costich, 152 Wn.2d 463,

475-76, 98 P.3d 795 (2004).

       Division One of this court addressed this issue in In re Detention of Coppin, 157 Wn.

App. 537, 238 P.3d 1192 (2010). In Coppin, the court stated that under general principles of

statutory interpretation, the meaning of “crime of sexual violence” in RCW 71.09.020(18) must

be considered in conjunction with other provisions in the same statute. Id. at 553; see State v.

Evans, 177 Wn.2d 186, 192, 298 P.3d 724 (2013). The court also stated that the interpretation of

a statutory provision must avoid unlikely, absurd or strained results. Coppin, 157 Wn. App. at

553; see State v. Shirts, 195 Wn. App 849, 858, 381 P.3d 1223 (2016).

       Applying these principles, the court looked to the definition of “sexually violent offense”

in RCW 71.09.020(17) to determine the meaning of “crime of sexual violence.” Coppin, 157

Wn. App. at 553. The court stated, “The legislature expressly defined ‘sexually violent offense’

to include statutory rape in the first degree. Given this definition, it would be absurd to

conclude that first degree statutory rape, a ‘sexually violent offense,’ is not also a ‘crime of

sexual violence.’ “ Id.




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No. 47975-3-II


       The court in Coppin expressly rejected the argument Taylor-Rose makes here: that

because the legislature used different terms in subsections (17) and (18), it must have intended

different meanings. Id. The court stated that “there is no material difference between the term

‘violent’ used in subsection 17 and the term ‘violence’ used in subsection 18.” Id.

       Taylor-Rose urges this court to reject Division One’s holding in Coppin. But we agree

with the analysis in Coppin. A crime that is expressly listed in the definition of “sexually violent

offense” in RCW 71.09.020(17) necessarily also qualifies as a “crime of sexual violence.”

       Here, the trial court’s instructions correctly declared the law that second degree child

molestation is a crime of sexual violence under RCW 71.09.020(18) and therefore those

instructions did not relieve the State of its burden of proof. Accordingly, we hold that the trial

court did not err in instructing the jury that second degree child molestation was a crime of

sexual violence.

C.     SUFFICIENCY OF THE EVIDENCE – LIKELIHOOD OF REOFFENDING

       The third element the State must prove to show a person is an SVP is that the

respondent’s mental abnormality or disorder “makes the person likely to engage in predatory acts

of sexual violence if not confined in a secure facility.” RCW 71.09.020(18). Taylor-Rose

argues that the State presented insufficient evidence to establish this element because the State’s

expert relied on Taylor-Rose’s lifetime risk of committing such acts. He asserts that his lifetime

risk could not support a finding that he was “currently dangerous,” as required by due process.

We disagree.




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No. 47975-3-II


       1.    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). We view the evidence in the light most favorable to the State and ask whether the

evidence 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. of Sease, 149 Wn. App.

66, 80, 201 P.3d 1078 (2009).

       2.    Legal Principles

       In order for the civil commitment process to comply with due process requirements, the

State must prove that the alleged SVP is both mentally ill and currently dangerous. In re Det. of

Moore, 167 Wn.2d 113, 124, 216 P.3d 1015 (2009) (citing Foucha v. Louisiana, 504 U.S. 71,

112 S. Ct. 1780, 118 L. Ed. 2d 437 (1992)). However, our Supreme Court in Moore held that

“by properly finding all the statutory elements are satisfied to commit someone as an SVP, the

fact finder impliedly finds that the SVP is currently dangerous.” 167 Wn.2d at 124.

       In Moore, the court stated that “[l]ikely to engage in predatory acts of sexual violence” as

defined in RCW 71.09.020(7) contains a temporal component. Id. For example, the court noted

that “if an expert predicts that an alleged SVP will reoffend only in the far distant future, then

there is less likelihood that the ‘more probable than not’ standard has been legally satisfied.” Id.

But the court stated that whether that standard is satisfied depends on the specific facts of the

case and the expert testimony, including the statistical likelihood of reoffending. Id. at 124-25.



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No. 47975-3-II


       The court in Moore held that if a jury properly finds a person to be an SVP – that the

person will more probably than not engage in predatory acts of sexual violence if not confined to

a secure facility – “it is implied that the person is currently dangerous.” Id. at 125. The court

concluded that “[w]e do not deem it necessary to impose on the State the additional burden that it

prove the SVP will reoffend in the foreseeable future.” Id.

       3.   Sufficiency Analysis

       Hoberman testified that he performed a risk assessment based on multiple risk assessment

approaches and measures in order to form an opinion about whether Taylor-Rose was likely to

engage in predatory acts of sexual violence over his remaining lifetime if not confined to a

secure facility. He stated that to reach his conclusion he used various actuarial instruments, his

structured professional judgment, and an analysis of dynamic risk factors, which involved

identifying predispositions or enduring characteristics that may convey risk for sexual offending

in the future. He also considered other factors that might bear on overall risk. Hoberman

concluded that in his expert opinion Taylor-Rose would more likely than not commit a predatory

act of sexual violence if not confined in a secure facility.

       Taylor-Rose argues that Hoberman’s testimony improperly relied on Taylor-Rose’s

lifetime risk for reoffending, and that some other formulation must be used to express a person’s

overall risk. Taylor-Rose relies on the United States Supreme Court’s decision in Foucha, which

stated that due process requires that civil commitment be based on a finding that a person is both

mentally ill and currently dangerous. 504 U.S. at 77, 80. He argues that lifetime risk cannot

show the required current dangerousness.




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No. 47975-3-II


        However, Taylor-Rose does not provide any legal authority supporting his interpretation

of “currently dangerous” as excluding lifetime risk. And our Supreme Court clearly stated in

Moore that current dangerousness is not a separate factor, but is inherent in the existing

definition of an SVP. 167 Wn.2d at 125. The court expressly rejected the idea that the State’s

burden should include showing a likelihood of reoffending within the foreseeable future. Id.

Therefore, we reject Taylor-Rose’s assertion that consideration of lifetime risk is improper or

represents insufficient evidence.

        Further, Hoberman’s testimony was not the only evidence the State presented. The

testimony regarding Taylor-Rose’s prior offenses, his conduct while on community supervision,

and his own statements during treatment about creating new victims if released support the jury’s

finding that Taylor-Rose was likely to engage in predatory acts of sexual violence if not confined

to a secure facility.

        Accordingly, viewing Hoberman’s testimony and other supporting evidence in the light

most favorable to the State, there was sufficient evidence to support the jury’s finding that

Taylor-Rose more probably than not would commit predatory acts of sexual violence if not

confined in a secure facility.

D.      INSTRUCTION ON LIKELIHOOD OF REOFFENDING

        The trial court’s instruction 15 addressed the third element the State must prove to show a

person is an SVP: the likelihood that the respondent will “engage in predatory acts of sexual

violence if not confined in a secure facility.” RCW 71.09.020(18). Taylor-Rose argues that the

trial court erred in giving instruction 15 because that instruction (1) required the jury to

determine Taylor-Rose’s risk level if released “unconditionally” from detention in the SVP



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No. 47975-3-II


proceeding, (2) did not include a reference to “placement conditions,” and (3) did not include

language instructing the jury about the State’s ability to bring a new SVP petition in the future if

he was not confined. We disagree.

       1.    Standard of Review

       “Jury instructions are generally sufficient if they are supported by the evidence, allow

each party to argue its theory of the case, and when read as a whole, properly inform the trier of

fact of the applicable law.” Fergen v. Sestero, 182 Wn.2d 794, 803, 346 P.3d 708 (2015); see

also In re Det. of Monroe, 198 Wn. App. 196, 202, 392 P.3d 1088 (2017) (applying general rule

to SVP case). When we review a jury instruction, we consider all the trial court’s instructions as

a whole to ensure that both parties are allowed to fairly state their case.2 Rekhter v. Dep’t of Soc.

& Health Servs., 180 Wn.2d 102, 120, 323 P.3d 1036 (2014).

       We review alleged errors in law in a trial court’s jury instructions de novo. Fergen, 182

Wn.2d at 803. However, absent a legal error we review a trial court’s decision regarding the

specific language of the instruction for an abuse of discretion. Terrell v. Hamilton, 190 Wn.

App. 489, 498, 358 P.3d 453 (2015). A trial court has broad discretion in determining the

wording of jury instructions. State v. Walters, 162 Wn. App. 74, 82, 255 P.3d 835 (2011). We

also review a trial court’s decision not to give a proposed instruction for abuse of discretion.




2
  Taylor-Rose argues that we must review the jury instructions to determine whether the relevant
legal standard was “manifestly apparent” to the average juror, citing State v. Kyllo, 166 Wn.2d
856, 864, 215 P.3d 177 (2009). But the court in that case was tasked with determining whether
one incorrect instruction and one correct instruction read together made the correct standard
apparent to the jury. Id. at 864-65. Taylor-Rose does not argue that there were contradictory
instructions given in this case as in Kyllo. Accordingly, we reject Taylor-Rose’s request to apply
the standard from Kyllo.


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No. 47975-3-II


Rekhter, 180 Wn.2d at 120. A trial court abuses its discretion when its decision is manifestly

unreasonable or based on untenable grounds. Terrell, 190 Wn. App. at 499.

       Because Taylor-Rose’s arguments regarding instruction 15 involve word choice and the

trial court’s decision to not include his proposed additional language, we apply an abuse of

discretion standard.

       2.   Reference to “Unconditional” Release

       Instruction 15 stated:

          “Likely to engage in predatory acts of sexual violence if not confined in a secure
       facility” means that the person more probably than not will engage in such acts if
       released unconditionally from detention in this proceeding.
       ....
          In determining whether the respondent is likely to engage in predatory acts of
       sexual violence if not confined to a secure facility, you may consider all evidence
       that bears on the issue. In considering voluntary treatment options, however, you
       may consider only voluntary treatment options that would exist if the respondent is
       unconditionally released from detention in this proceeding.

CP at 27 (emphasis added). Taylor-Rose’s proposed instruction removed the word

“unconditionally” from this instruction. He argues that using that term was inappropriate

because his release from detention would not have been unconditional if the jury found that he

was not an SVP. Taylor-Rose emphasizes that he would have been subject to 36 to 48 months of

community supervision under the sentence for his 2009 conviction.

       But instruction 15 contained language that was almost identical to the applicable statutes.

RCW 71.09.020(7) states:

       “Likely to engage in predatory acts of sexual violence if not confined in a secure
       facility” means that the person more probably than not will engage in such acts if
       released unconditionally from detention on the sexually violent predator petition.

(Emphasis added.) RCW 71.09.060(1) states:



                                                12
No. 47975-3-II


       In determining whether or not the person would be likely to engage in predatory
       acts of sexual violence if not confined in a secure facility, the fact finder may
       consider only placement conditions and voluntary treatment options that would
       exist for the person if unconditionally released from detention on the sexually
       violent predator petition.

(Emphasis added.) The word “unconditionally” also is included in the applicable pattern jury

instruction on which instruction 15 was based: WPI 365.14. 6A WASHINGTON PRACTICE:

WASHINGTON PATTERN JURY INSTRUCTIONS: CIVIL 365.14, at 577 (6th ed. 2012) (WPI).

       Further, instruction 15 allowed Taylor-Rose to argue that the conditions of his release

from confinement on his criminal conviction made him less likely to reoffend. The instruction

states that the jury could consider “all evidence that bears on the issue.”3 CP at 27. In fact, the

challenged portions of instruction 15 do not even address the conditions of Taylor-Rose’s release

from confinement on his criminal conviction. They refer to release “in this proceeding,” CP at

27; i.e., on the SVP petition. Taylor-Rose argues that a jury would not understand this nuance.

But an instruction is not erroneous simply because counsel may need to explain certain language

to the jury, particularly when the legislature has chosen that language. See State v. Harris, 164

Wn. App. 377, 387, 263 P.3d 1276 (2011) (stating that “a trial court should use the statute’s

language” when instructing the jury).

       Removing the word “unconditionally” from instruction 15 as Taylor-Rose proposed

would have been contrary to the statutory language. And when read as a whole, the instruction

would not lead the jury to believe that it could not consider Taylor-Rose’s community


3
 This portion of instruction 15 did not come from any part of the SVP statute. RCW
71.09.060(1) is unartfully written, and it could be argued based on that statute that the only
evidence regarding the likelihood of reoffending that a jury could consider was the respondent’s
placement conditions and voluntary treatment options. But because Taylor-Rose does not
challenge this language, we do not consider this issue.


                                                 13
No. 47975-3-II


supervision for his criminal conviction. Therefore, we hold that the trial court did not err in

referencing unconditional release in instruction 15.

       3.      Failing to Include “Placement Conditions”

       Taylor-Rose’s proposed instruction added language to the final paragraph of instruction

15. He proposed that the instruction should include “placement conditions” in addition to

“voluntary treatment options” as something the jury could consider in determining whether he

would likely engage in predatory acts of sexual violence if not confined in a secure facility. He

emphasizes that both RCW 71.09.060(1) and WPI 365.14 support including that language.

       RCW 71.09.060(1) refers to placement conditions. That statute states:

       In determining whether or not the person would be likely to engage in predatory
       acts of sexual violence if not confined in a secure facility, the fact finder may
       consider only placement conditions and voluntary treatment options that would
       exist for the person if unconditionally released from detention on the sexually
       violent predator petition.

(Emphasis added.)

       WPI 365.14 includes “placement conditions” as language that can be included in the

instruction:

       [In determining whether the respondent is likely to engage in predatory acts of
       sexual violence if not confined to a secure facility, you may consider all evidence
       that bears on the issue. In considering [placement conditions or] voluntary
       treatment options, however, you may consider only [placement conditions or]
       voluntary treatment options that would exist if the respondent is unconditionally
       released from detention in this proceeding.]

(Emphasis added.) The note on use accompanying the pattern instruction states that the

bracketed paragraph “should be used when evidence of . . . ‘placement conditions’ has been

introduced into evidence. Use the bracketed phrase ‘placement conditions’ only if the evidence




                                                 14
No. 47975-3-II


indicates that the respondent will be subject to court-ordered supervision, even if released on the

predator petition.” WPI 365.14 note on use at 577.

       The comment to WPI 365.14 states that the instruction allows “consideration of court-

ordered conditions that would exist if the SVP petition were dismissed. . . . ‘Conditions that

would exist’ are typically pre-existing community supervision conditions placed on respondent

in connection with a prior criminal conviction.” WPI 365.14 comment at 578-79.

       Based on the statute and pattern jury instruction, it would have been appropriate for the

trial court to include “placement conditions” in the instruction because evidence was admitted at

trial regarding Taylor-Rose’s community supervision. However, the fact that it would be proper

to include certain language in a jury instruction does not mean that the trial court was required to

include that language. See Terrell, 190 Wn. App. at 506. The issue here is whether the trial

court abused its discretion in not including the “placement conditions” language.

       As noted above, instruction 15 stated that the jury may consider “all evidence that bears

on the issue” of whether Taylor-Rose was likely to engage in predatory acts of sexual violence if

released. CP at 27. This instruction did not prevent or prohibit the jury from considering

Taylor-Rose’s community supervision. Although it would have been more helpful to Taylor-

Rose if the instruction explicitly drew the jury’s attention to placement conditions, the instruction

allowed the jury to consider “all evidence.” The trial court admitted the terms of his community

supervision into evidence. Taylor-Rose’s community supervision was also discussed by

Hoberman when he testified about the risk assessment he performed on Taylor-Rose. Therefore,

instruction 15 as given did not prevent Taylor-Rose from arguing his theory that he could be




                                                 15
No. 47975-3-II


safely released from the SVP petition because his community supervision would prevent him

from engaging in predatory acts of sexual violence.

       When read as a whole, instruction 15 would not lead the jury to believe that it could not

consider placement conditions such as Taylor-Rose’s community supervision and allowed

Taylor-Rose to argue those placement decisions. Accordingly, we hold that even though

including a reference to “placement conditions” in instruction 15 would have been appropriate,

the trial court did not abuse its discretion in declining to include that language.4

       4.    State’s Ability to Bring a New SVP Petition

       Taylor-Rose’s proposed version of instruction 15 included language stating that the State

could bring a new SVP petition if Taylor-Rose committed a recent overt act following his

release. Under RCW 71.09.030(1)(e), the State can file an SVP petition if a person who has

previously been convicted of a sexually violent offense and later is released from confinement

commits a recent overt act. Taylor-Rose argues that the trial court erred by refusing to include

that language because without it, he was unable to argue that he was less likely to reoffend

because certain acts could subject him to future confinement. We disagree.

       Taylor-Rose relies on Post, 170 Wn.2d at 316-17. In Post, the court held that “[e]vidence

that a respondent in an SVP proceeding who is subsequently released could be subject to another

SVP proceeding if he commits a recent overt act is relevant and is a condition that would exist

upon placement in the community.” Id. at 316. The court noted that this evidence is relevant


4
  Although we hold that the trial court did not err in giving instruction 15, we believe that the
language of WPI 365.14 – on which instruction 15 was based – could be clearer. The second
sentence of the final paragraph does not follow from the first sentence. Adding the following
second sentence would be helpful: “This evidence includes the respondent’s [placement
conditions and] voluntary treatment options.”


                                                  16
No. 47975-3-II


because the threat of a new SVP petition would have “some tendency to diminish the likelihood

of [respondent] committing another predatory act of sexual violence.” Id. at 317.

       However, Post did not require that a trial court give a proposed jury instruction regarding

the possibility of a new SVP petition and in fact did not address jury instructions at all.

Therefore, the issue here is whether Taylor-Rose’s proposed language was necessary for him to

argue his theory that the threat that the State could file a new SVP petition would make him less

likely to reoffend. See Monroe, 198 Wn. App. at 202.

       Here, as noted above, instruction 15 stated that the jury could consider all evidence that

bears on the issue of whether Taylor-Rose was likely to engage in predatory acts of sexual

violence if not confined to a secure facility. The threat that the State would file a new SVP

petition based on certain conduct was evidence relating to that issue, and therefore this

instruction allowed Taylor-Rose to argue his theory without the need for more specific language.

       Further, in this case there was no evidence presented at trial that Taylor-Rose would be

less likely to reoffend because of the potential for new SVP petitions. Therefore, Taylor-Rose’s

proposed language was not supported by the evidence. A trial court does not abuse its discretion

when it refuses to give an instruction that is not supported by the evidence. See State v. Green,

182 Wn. App. 133, 152, 328 P.3d 988 (2014).

       Accordingly, we hold that the trial court did not abuse its discretion by refusing to

include in instruction 15 Taylor-Rose’s proposed language regarding the State’s ability to file a

new SVP petition.




                                                 17
No. 47975-3-II


E.     APPELLATE COSTS

       Taylor-Rose requests that we not impose appellate costs if the State prevails because he is

indigent. We decline to consider this issue. A commissioner of this court will consider whether

to award appellate costs in due course under RAP 14.2 if the State decides to file a cost bill and

if Taylor-Rose objects to that cost bill.

                                            CONCLUSION

       We affirm Taylor-Rose’s commitment as an SVP.



                                                     MAXA, A.C.J.


 We concur:




 LEE, J.




 SUTTON, J.




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