                                                                                              FILED
                                                                                             r: APPEALS
                                                                                         WIVIS! ON E
                                                                                 Z8I4JU _ 3 M1 8: 35

                                                                                  STATE OF WASHINGTON




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                     DIVISION II

                                                                                  No. 43404 -1 - II
In re the Detention of


                     TREMAYNE FRANCIS,


                                                                          UNPUBLISHED OPINION
                                        Appellant.


           HUNT, P. J. —        Tremayne Francis appeals the trial court' s order of commitment to the


Special Commitment Center in Steilacoom based on a jury' s finding him to be a sexually violent

predator ( SVP),        chapter 71. 09 RCW. He argues that the trial court violated his due process right

to   present    a   complete    defense      when   it   excluded   testimony   about   his   awareness   of   the " two


strikes"      law, RCW 9.94A.570, because this testimony was relevant to disprove the State' s

assertion     that he   was   likely   to   reoffend.    The State counters that the trial court did not abuse its


discretion in excluding the evidence because it was confusing and potentially prejudicial to the

jury,   and   any   error was   harmless. We        affirm.
No. 43404 -1 - II



                                                                 FACTS


                                                  I. SEXUAL OFFENSE HISTORY


                                                  A. Initial Rape Convictions

                                                                                SM1,

          Around June 17, 1998, Tremayne Francis invited                               a 17- year -old male, to his home,


allegedly for     martial arts         lessons.    Francis made sexual advances against SM, threatened to kill


SM if he did not comply, raped SM, and held SM captive for three hours before SM convinced

Francis to release him. A few weeks later, another 17- year -
                                                            old male, JB, agreed to attend martial


arts   training   at    Francis'   s   home,   where   Francis     raped    him   under   threat   of   force.      When Francis

took JB home,           he implied that JB          would return        to Francis " voluntarily        or   by   force."    Clerk' s


Papers ( CP) at 3.


          Police       arrested    Francis the      next   day for      raping JB   and   SM.      At first Francis told the


arresting officers that " he didn' t understand and [ expressed] disbelief about two counts of rape ";

later Francis      stated, "   I   can see one      but    not   two," referencing the two         rape charges.            CP at 18


    emphasis omitted).         Francis later pled guilty to two counts of second degree rape by forcible

compulsion        for these        offenses.       In December 1998, Francis was sentenced to 119 months


confinement on each count, to run concurrently, plus 36 months of community custody after his

release from prison.


                                                  B. Sexual Assaults in Prison


          According to Dr. Brian W. Judd, during Francis' s prison. confinement, Francis faced

    multiple non -adjudicated allegations                 of sexual misconduct or attempted coercion of sexual




1
    It is appropriate to     provide some          confidentiality in this     case.   Accordingly, it is hereby ordered
that initials will be used in the body of the opinion to identify some parties involved.



                                                                    2
No. 43404 -1 - 1I



acts."     CP     at   21.    Francis was initially infracted on March 31, 2000, and placed in administrative

segregation for allegedly threatening another inmate with harm if he did not submit to Francis' s

sexual      demands.            On. July 8, Francis allegedly intimidated, threatened and coerced another

inmate to         perform           sexual   acts     on   Francis   or     suffer      physical    injury.     The Department of


Corrections ( DOC)                  found Francis guilty of an infraction and sentenced him to 10 days of

segregation            and   to loss    of   30 days       of good   time     credit.     On October 12, yet another inmate


reported that Francis had hit him, raped him, and threatened to kill him and his family.

            On     February          24, 2003,      Francis was again placed in administrative segregation for


 involuntary           protective      custody" "     for extorting other inmates for sexual contact and possession

of   sexually      explicit material."           CP   at   22 ( emphasis     omitted).        A subsequent DOC investigation


            found information that inmate Francis was involved in pressuring other inmates
            for   sex.       The investigation is          on- going....      Due to inmate Francis.' demonstrated
            desire to continue identifying and pursuing potential sexual assault victims; he is
            not appropriate for any general population setting.

CP    at   22 ( emphasis        omitted) ( internal         citations omitted).


            On June 9, 2005, Francis told hiscelhnate, JG, that he had overheard a group of other

inmates planning to assault JG, that he ( Francis) would protect JG, but that he ( Francis) would

require " payment"              for his   protection services.          CP    at   3.    JG   initially   refused.   But after Francis


threatened to assault JG, JG acquiesced, and Francis had sexual intercourse with JG over his


protests.         The        next   day, Francis       again    raped       JG.    When first       confronted       by "   Prison Rape


Elimination Act ...                 Officers,"   Francis denied any sexual contact with JG, insisting that JG was

lying. CP at 20. Francis later changed his story and said that he had had consensual sex with JG.

As a result of these allegations, DOC placed Francis in administrative segregation on June 11,




                                                                        3
No. 43404 -1 - II



2005,    and   charged        him   with    infractions for sexually assaulting inmate JG.             The State also


charged    Francis    with     two      counts      of second   degree   rape    for sexually assaulting JG.   A jury

acquitted Francis of the charges, and DOC dismissed the institutional infractions for lack of

evidence.      DOC placed Francis in administrative segregation on three additional separate


occasions between October 2006 and March 2007, for allegedly having coerced other inmates

into performing sexual acts.

                                                          II. PROCEDURE


               A. Psychological and Sexually Violent Predator Evaluations; SVP Petition

         On August 31, 2007, Dr. Judd, evaluated Francis at the request of the Washington State


Joint Forensic Unit.               Dr. Judd is familiar with chapter 71. 09 RCW and has experience in


evaluating, diagnosing, and treating sex offenders, including making evaluations for possible

SVP     civil commitment.           Dr. Judd reviewed police reports, court documents, health information,

psychological evaluations, and DOC documents; he also interviewed Francis for four hours on

August 31, 2007.


          Dr. Judd      opined       that ( 1) "    to   a reasonable   degree   of psychological   certainty," Francis


meets    the criteria   for    a   sexually    violent predator; (    2) he suffers from " Paraphilia, Not Otherwise


Specified ( NOS)        and    Personality         Disorder, Not Otherwise Specified ( NOS) (       with antisocial and


                         2;
narcissistic    traits) "      and ( 3) Francis' s paraphilia is a mental abnormality, as defined in RCW

71. 09. 020, and, in conjunction with his personality disorder, causes him serious difficulty in

controlling his sexually violent behavior and makes him " likely to engage in predatory acts of



2CPat5.



                                                                  4
No. 43404 -1 - II



sexual violence           if   not confined     in   a secure     facility."       CP    at   6.   Dr. Judd further        noted, "   Francis


has either declined sexual deviancy treatment or been deemed not amenable to sexual deviancy

treatment due to              extreme minimization or             denial      of   his   crimes."      CP at 27 ( internal citations


omitted).




               In making this determination, Dr. Judd conducted a risk assessment, using two actuarial

instruments:           the Static -99     and   the Sex Offender Appraisal Guide ( SORAG).                            Francis scored a 5


or   6    on   the Static -99,       which corresponds        to   a "   moderately- high" to "            high" risk of reoffending.

CP       at   6.   According         to the Static -99,     a "   moderately- high" risk means that Francis had a 40


percent        likelihood         of reconviction     for   a new sexual offense over                  a   15 -year    period.    CP at 6.


Francis' s score of 8 on the SORAG corresponds to a 39 percent probability of committing

another sexual offense within 7 years and a rate of a 59 percent probability of reoffending within

10 years.


               Dr. Judd also reviewed Francis' s history for static and dynamic risk factors not included

in the Static -99            or   SORAG.     Dr. Judd opined that, when considering factors such as Francis' s

age,      general       criminality, lifestyle         instability,          and   psychopathy, his           likelihood to reoffend


increased. Dr. Judd further concluded that


               there   are     no    factors mitigating [ Francis' s] risk for recidivism. [ He] has not
               participated         in offense specific treatment [ and] has attempted to deflect
               responsibility for his offending through malingered mental illness and amnesia. .
                   Moreover, incarceration, repeated referral to administrative segregation, and /or
               the threat of a life sentence without the possibility of parole has not served as a
               protective or        mitigating factor. ...           Moreover, as incarceration and repetitive
               referral   to      administrative     segregation         has       not   mitigated [       Francis'   s]   sexually
               assaultive behaviors, there is no reason to believe that community supervision will
               appreciably mitigate [ Francis' s] risk of assaultive behavior.




                                                                         5
No. 43404 -1 - II



             I believe Mr. Francis meets the criteria for a sexually violent predator as described
             in Chapter 71. 09. 020 of the Revised Code of Washington. I hold this opinion to a
         reasonable degree of psychological certainty.

CP at 6 -7 ( some alterations in original).


             Based on Dr. Judd' s report and Francis' s medical history, the State petitioned the

superior court to find that Francis is a sexually violent predator for purposes of chapter 71. 09

RCW and to commit him under RCW 71. 09. 060. The case was tried to a jury.

                                                               B. SVP Trial


                                                    1.    State' s Witness, Dr. Judd


             The State presented testimony from Dr. Judd, a licensed psychologist since 1991 and a

    f]ully   certified ...        sex offender     treatment       provider" " since      2001   or   2002."     1 Verbatim Report


of   Proceedings ( VRP)              at    88.    His "    expertise has been examining and evaluating offenders,

particularly sexual offenders, and looking at risk assessment and risk for recidivism, as well as
                                                                    3"
providing treatment               services   to   sexual offenders "           since   1993, 1994."        1 VRP    at   88.   Dr. Judd


explained       to the   jury       that   he had        reviewed " victim and witness reports"                relating to Francis' s

actions; " trial transcripts from [ Francis'                  s]   1998 trial ";   and   Francis'   s"   DOC records, ...        police


reports,      court records,         charging documents,"              and "   mental health records from Western State


Hospital." 2 VRP             at   117, 118. Dr. Judd had also interviewed Francis in person, which interview


included an evaluation of Francis' s mental health, history, and development, and an opportunity

for Francis to have an open discussion about his offenses.




3
    1 VRP at 74.




                                                                        6
No. 43404 -1 - II



          Dr. Judd further              explained      that       in evaluating Francis, he had used two                      actuarial


instruments " generally accepted for use in the field of doing risk assessment of sex offenders, "4
                                                                                  .
the " Static -99" ( in      use since      1993   or    1994)      and    the " SORAG" ( in           use since   1998).     2 VRP at


251.     He diagnosed Francis                with "   Paraphilia, Not Otherwise Specified ( Non -
                                                                                                consent)"                           and




testified that this condition


          affected [    Francis'   s]    ability to inhibit acting upon [ his] urges. And the basis for
          saying that       is the fact that   even after being incarcerated for [ SM] and for [ JB], that

          we have a pattern of conduct over the years that indicated that he continued to act
          upon    these     urges which resulted             in   continuedat being
                                                                              sanctioning        at   this   point —

          placed in administrative segregation and other sanctioning while he was
          incarcerated.


2 VRP at 242. Dr. Judd added that his opinion about Francis' s condition was also based on. other

    allegations   that [ had     arisen    in   prison]      with regard      to Mr. Francis, . . .           the fact that he was


infracted in 2003[,         and]   allegations      that he       was   trying to   extort   sexual favors        again."    2 VRP at


243.


          Dr. Judd      agreed with        the State'    s assertions       that ( 1)    Francis'     s"   diagnosis make[ s] him a


menace      to    the              and    safe[ ty]     of     others,"    and (    2) " predispose[ s] _ Mr.       Francis to the

commission         of   similar     acts."      VRP     at .   243 -44.    Based on his evaluation and the actuarial

                                                                                                                                       5
instruments, Dr. Judd              concluded      that " to        a   reasonable       degree   of psychological           certainty, "


Francis would likely reoffend if not committed to a secure facility.




4
    2 VRP at 252.

5
    2 VRP   at   250 -51.
No. 43404 -1 - I1



                                                         2. Francis' s witnesses


           Francis' s uncle, Michael Joseph Wilson, testified that he would be a source of support for


Francis in the community. Francis also presented testimony from Dr. Betty Richardson, a former

psychotherapist for DOC who currently is in private practice, and who had previously interacted

with   Francis.      Dr. Richardson testified that, during her employment through the McNeil Island

Corrections        Center, ( 1)       she    had     met    with   Francis "        weekly for therapy and psychological

evaluations[,]       and [ would] work with his counselors for recommendations [ for mental health

                           6;
issues],     if   needed, "      and (      2) Francis had "       difficulty in memory for disturbing situations,

traumatic     experiences ...         and [ he was] very child -
                                                               like around authority or any inmate that would

show   authority      over    him,    and    very   unpredictable."          4 VRP at 447. Pat Capozzola, the operations


manager in food service at the Special Commitment Center, testified that Francis' s work habits


were "[ v] ery good" and          his      attitude was "    okay."    4 VRP at 456.


           Francis     also     presented          testimony from Dr. Richard Wollert, a doctor in clinical

psychology,        who    opined      that Francis'        s actions   were " criminal           behavior[,].    not a product of a




mental      disorder."     5 VRP      at    558.    Dr. Wollert testified that ( 1) the diagnosis of "Paraphilia Not


Otherwise Specified, Non -
                         consent"                    (   the diagnosis made by Dr. Judd) generally has a " terrible"

reliability that " does         not   beat     chance,"      5 VRP          at   544 -45; ( 2) this diagnosis       creates    a "   false


positive rate [ of] error,        that it     will over -   identify       people ...     as having a mental illness when the

chances are,       that   behavior is        not   due to   a mental        illness   at all;   it' s due to   criminal   decisions," 5


VRP    at   546; ( 3) Francis'       s "   behavior ...       does meet the threshold criterion because it' s criminal


behavior, but it' s not recurrent, intense, sexually arousing fantasies or sexual urges that are of a


64 VRP at445.


                                                                       8
No. 43404 -1 - II




deviant, bizarre    nature. [      They' re]   criminal        behavior.       They' re not a product of a mental

disorder," 5 VRP      at   557 -58; ( 4) that Francis has not engaged in sexual assault while at the


Special Commitment Center demonstrates that " he'                      s   responsive   to the   contingencies ...    or



circumstances    that would      discourage [ such      conduct],"         5 VRP at 570; and ( 5) Dr. Wollert did not


believe that Francis had         alternate personalities.           Dr. Wollert did not provide any diagnosis of

Francis' s conditions. Francis also testified in his own defense.

                            3.   Sustained objection to " two strikes" law question


        During Francis' s testimony, his counsel asked:

         DEFENSE           COUNSEL]:           All    right.        Mr. Francis,     are   you   aware    of the

        Washington two strikes law for sex offenses?
         PROSECUTOR]: Objection, Your Honor.
         COURT]:        I' m going to sustain that objection.

4 VRP   at   501 -02. Francis' s counsel neither responded nor attempted to rephrase the question to


elicit more precisely Francis' s understanding of the consequences if he were to commit

additional sexual offenses.         Instead, Francis' s counsel switched to another line of questioning.

After cross- examination and re- direct examination, Francis concluded his testimony, and the trial

court excused the jury.

        Before adjourning for the          day,      the trial      court asked   counsel   if there   were "   Any other

housekeeping     matters ?"      4 VRP    at   510.    Francis' s counsel engaged in the following colloquy

with the trial court:


                    DEFENSE COUNSEL]: ...                  You sustained the State' s objection when I
        asked him about Washington two strikes law, and I don' t have a clue why, and I
        need to learn why.
                 COURT]: Okay. My concern was that the jury might be confused and
        would start to speculate about why — if [Francis] had pled guilty to two sex

        offenses, why he wouldn' t be potentially subject to life in prison without parole,



                                                                9
No: 43404 -1 - II




        and I didn' t want them speculating, and maybe improperly so, that the reason that
         Francis] went to trial on [ the matter of inmate JG] was because it would have
        been he' d be a persistent offender, and so I didn' t want to open up those particular
        cans of worms.     Plus I don' t know —there
                                                  was no foundation laid suggesting that
        Mr. Francis has any kind of expertise or personal knowledge about Washington
        statutes and whether or not he' d be a persistent offender or could face life in
        prison —

         DEFENSE COUNSEL]: I think —
         COURT]: — for a second offense.
         DEFENSE COUNSEL]: —            that was my question is if he was aware of those
        laws. And I had planned to ask him then if he believes he has one strike from the
        1998 cases and that another sex offense would resulta conviction would result
        in his being life without possibility of parole. That' s where I had intended to go.

4 VRP    at   512 -13.   Counsel did not ask for permission to rephrase the question or to recall


Francis to the stand to testify more generally about his knowledge of the consequences for

committing additional offenses, aside from knowledge about the persistent offender law in

particular.




                                        4. Jury' s SVP finding

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

that Francis was a sexually violent predator. That same day, the trial court ordered Francis

        committed to the Special Commitment Center in Steilacoom, Washington, to the
        custody of the Department of Social and Health Services, for control, care, and
        treatment until such time as his mental abnormality and /or personality disorder
        has so changed that [ he] is safe to be conditionally released to a less restrictive
        alternative or unconditionally discharged.

CP at 102. Francis appeals.




                                                  10
No. 43404 -1 - I1



                                                              ANALYSIS


         Francis argues that when the trial court excluded testimony about his knowledge of
                                        7   law8,

Washington'     s"     two   strikes"               it   violated   his due      process right    to "` a meaningful opportunity


to   present a complete        defense.'        Br. of Appellant at 8 ( quoting State v. Wittenbarger, 124 Wn.2d

467, 474, 880 P.2d 517 ( 1994) and citing In re Welfare ofHansen, 24 Wn. App. 27, 36, 599 P. 2d

1304 ( 1979)); RCW 9. 94A. 570.                     He contends that this testimony was relevant to show that he

was less likely to reoffend because he knew he faced mandatory life in prison for any future

sexual offense conviction.                  We note, however, that ( 1) the trial court excluded testimony only

about   Francis'   s   knowledge        of   the " two      strikes"   law in     particular; ( 2)   defense counsel did not ask


Francis whether he knew in general that he faced mandatory life in prison for any future sexual

offense or any other question pertaining to Francis' s state of mind about punishment for future

crimes    and   its     possible     deterrent           effect;    and (   3)   the    trial   court,   therefore,   never had an


opportunity to         rule on   the admissibility of this latter                kind   of   knowledge.     See 4 VRP at 501 -02.


We hold that the trial court acted within its discretion when it excluded Francis' s testimony

about his knowledge of the " two strikes" law.

                                                     I. STANDARD OF REVIEW


          To be    admissible evidence must                   be   relevant.      ER 402. "       To be relevant, evidence need


only have `     any tendency to make the existence of any fact that is of consequence to the


7 Br. of Appellant at 7.

8
     RCW 9. 94A. 570, the " two           law discussed in In re Pers. Restraint of Carrier, 173
                                              strikes"

Wn.2d 791,        797 -98, 272 P. 3d 209 ( 2012),
                                                provides a mandatory sentence of life in prison
without the possibility of parole for offenders who are convicted a second time of a crime listed
in RCW 9. 94A.030( 37)( b).




                                                                       11
No. 43404 -1 - II




determination of the action more probable or less probable than it would be without the


evidence. "'       In   re   Det. of Post, 170 Wn.2d 202, 311, 241 P. 3d 1234 ( 2010) (                    quoting ER 401).

We   review a        trial   court' s   ruling   on   the admissibility   of evidence     for   abuse of   discretion. Post,


170 Wn.2d at 309 ( citing City ofAuburn v. Hedlund, 165 Wn.2d 645, 654, 201 P. 3d 315 ( 2009)).

 A trial court abuses its discretion if it relies on unsupported facts, applies the wrong legal

standard, or adopts a position no reasonable person would                      take."    In re Det. ofMcGary, 175 Wn.

App. 328, 337, 306 P. 3d 1005 ( citing State v. Lord, 161 Wn.2d 276, 284, 165 P. 3d 1251 ( 2007)),

review     denied, 178 Wn.2d 1020 ( 2013).                 Thus, we will not overturn such a discretionary ruling

 absent manifest abuse of                discretion."     State v. Wilson, 60 Wn. App. 887, 890, 808 P. 2d 754

 1991) (   citing State v. Hughes, 106 Wn.2d 176, 201, 721 P. 2d 902 ( 1986)).

           At   an   SVP determination trial, the fact finder             must resolve one question: "         Has the State


proved,     beyond      a reasonable         doubt, that the     respondent   is   an   SVP ?" Post, 170 Wn.2d at 309


 citing RCW 71. 09. 060( 1)).

           To   answer        this   question[,]   the   jury   must   determine 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) and citing In re Det. of Audett, 158

Wn.2d 712, 727, 147 P. 3d 982 ( 2006)).                     The sole SVP element at issue here is the third one,


which requires          the   jury    to find both that the "      abnormality or disorder causes the likelihood of

future     acts"     and that there is a greater than 50 percent probability that the defendant will




                                                                   12
No. 43404 -1 - II



                                                            9
reoffend.         Post, 170 Wn.2d              at    310.        In order to challenge the trial court' s exercise of its

discretion, Francis must show that the excluded evidence was relevant to this third SVP element.


Post, 170 Wn.2d           at   311.   In this endeavor, he fails.


             II. RELEVANCE AND ADMISSIBILITY OF EXCLUDED " TWO STRIKES" TESTIMONY


            Our Supreme Court has observed that a defendant' s " knowledge of the consequences for


engaging in [ prohibited] conduct may well serve as a deterrent to such conduct and, therefore,

has some tendency to diminish the likelihood of his committing another predatory act of sexual

violence.        This likelihood,       of course,         is   an element     that the   jury   must address."    Post, 170 Wn.2d


at   316 -17 (    emphasis added) (            citing     RCW 71. 09. 020( 18)).      10 But Francis' s understanding of the

legality     of   the " two       strikes"      law, RCW 9. 94A.570, is not the same as knowledge of the


consequences for engaging in prohibited conduct relevant to his risk of reoffense, 11 about which
                                          12
defense     counsel    did     not ask.         See Post, 170 Wn.2d at 316; RCW 71. 09. 020( 18).




9(
     Citing In re Det. of Thorell, 149 Wn.2d 724, 736, 742, 72 P. 3d 708 ( 2003) and quoting In re
Det. of Brooks, 145 Wn.2d 275, 298, 36 P. 3d 1034 ( 2001),        overruled on other grounds by
Thorell).


10 Francis' s argument relies on an overly expansive reading of Post. In Post our Supreme Court
expressly declined to             rule    that      evidence       of   the SVP    respondent' s      knowledge      about   the " two

strikes" law was admissible, only that it was relevant. Post, 170 Wn.2d at 317.
11
   Even if Francis' s testimony about his knowledge of Washington' s " two strikes" law were
relevant to his risk of reoffense, the trial court still had discretion to preclude it under ER 403 for
prejudice or confusion. See Post, 170 Wn.2d at 317.


12 We note, however, that by the time defense counsel asked Francis about his awareness of the
 two strikes"        law, Francis had already raised the issue of a potential sentence of life without
parole      when    he testified        about (      1)   his   alleged    2005    sexual    assault against      inmate JG; ( 2) his
experience being interrogated about the incident by law enforcement; and ( 3) his " understanding
in [ his]
        mind at the time ... that [ he] was in very big trouble and the possibility that [ he] would
remain      in   prison   for the     rest of [     his] life." 4 VRP at 488.



                                                                          13
No. 43404 -1 - II



        Francis does     not show   that ( 1)     his   proffered   testimony   about   the " two   strikes"   law was


relevant to his knowledge of future punishment and its impact on his likelihood to reoffend, and

 2) that the trial   court' s rejection of   it   was either " untenable,"      State v. Powell, 126 Wn.2d 244,


258, 893 P. 2d 615 ( 1995),     or a position      that "   no reasonable person would       take."    McGary, 175

Wn.   App.   at   337.   Accordingly, we hold that the trial court did not abuse its discretion in

excluding this narrow testimony, and we affirm.

        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:




                                                             14
