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                                                                           FILED
                                                                         May 19, 2016
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                                                                 In the Office of the Clerk of Court
                                                               WA State Court of Appeals, Division Ill

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i                 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
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 l    In the Matter of the Detention of              )         No. 32939-9-111
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      SHAWN D. BOTNER,                               )         UNPUBLISHED OPINION
 l    aka SHAWN BOWER.                               )
                                                     )
Il              PENNELL, J. -   Shawn Botner appeals an order of commitment based on a jury
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l     finding that he was a sexually violent predator (SVP). There are two classes of claimed
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l     error: (1) improper admission of expert testimony regarding the Structured Risk


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      Assessment-Forensic Version (SRA-FV) and (2) ineffective assistance of counsel based

      on failure to object to evidence and to statements made during closing argument. We
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1     affirm.
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                                                 FACTS

                Mr. Botner, now age 42, has a long history of both sexual offenses and other

      crimes. In 2006, Mr. Botner was arrested on a warrant for failure to report his last
No. 32939-9-III
In re Det. of Botner


address. Following his arrest, the State commenced an SVP civil commitment action. In

2009, a jury found Mr. Botner to be an SVP. He appealed, and this court reversed and

remanded for a new trial. See In re Det. of Botner, noted at 168 Wn. App. 1017 (2012).

       In the new trial, the State presented evidence concerning Mr. Botner's past crimes

and psychological assessments done by its expert, Dr. Harry Hoberman. Dr. Hoberman

testified that Mr. Botner suffered from sexual sadism which, in his case, was a mental

abnormality. He also diagnosed Mr. Botner with (1) pedophilia, (2) other specified

paraphilic disorder, non consent, (3) antisocial personality disorder, and (4) psychopathy.

All diagnoses were made pursuant to the guidelines contained in the American

Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders: DSM-5

(5th ed. 2013).

       Dr. Hoberman then testified about his assessment of Mr. Botner's risk of

committing a predatory sex offense if released, using four actuarial instruments designed

to measure the relative likelihood of future offenses based on factors that have been

empirically determined to be associated with future sex offending. Three of the four

instruments reflected a similar likelihood of Mr. Botner reoffending, but the Sex Offense

Risk Appraisal Guide (SORAG) showed a 100 percent likelihood ofreoffense. Dr.

Hoberman also utilized the SRA-FY to evaluate Mr. Botner's dynamic risk factors. Mr.



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In re Det. ofBotner


Botner's counsel challenged the admissibility of the SRA-FY prior to trial, unsuccessfully

arguing it did not satisfy the Frye 1 standard.

       Based on his evaluation of Mr. Botner and application of the actuarial tests, Dr.

Haberman testified that Mr. Botner's mental abnormalities and personality disorder made

him more likely than not to engage in predatory acts of sexual violence if not confined to

a secure facility. The defense called as its expert Dr. Theodore Donaldson, who generally

disputed Dr. Haberman's analysis and conclusions.

       In its closing argument, the State told the jurors: "You're not being asked to find

any particular diagnosis. You're not being asked to figure out which one [Mr. Botner]

might be diagnosed with. That's not your job." 6 Verbatim Report of Proceedings (VRP)

at 967. After critiquing Dr. Donaldson's methods, motives, and conclusions, the State

told the jury: "That's up to you to decide, but it seems awfully hard to believe when it's

clear to anyone who's heard the evidence in this case that there is something seriously

wrong with Mr. Botner." 6 VRP at 976. In rebuttal, the State again emphasized the jury

did not need to find any particular diagnosis in order to commit Mr. Botner.

       The jury found Mr. Botner to be an SVP, resulting in his commitment. Mr. Botner

appeals.


       1 Frye   v. Unites States, 54 App. D.C. 46, 293 F. 1013 (1923).

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In re Det. ofBotner


                                        ANALYSIS

   A. Admissibility of the SRA-FV

       The bulk of Mr. Botner's appellate argument focuses on his claim that the

SRA-FV is not sufficiently reliable to meet the standard for admissibility under Frye.

Subsequent to the briefing, this division joined Division Two in holding that it is. In re

Det. of Ritter, 192 Wn. App. 493, _    P.3d _    (2016). Based on Ritter, we reject Mr.

Botner's challenge to the admission of the SRA-FV testimony in his case.

   B. Ineffective Assistance of Counsel

       Mr. Botner bases his ineffective assistance of counsel claim on his counsel's

failure to object to the SORAG evidence and to portions of the State's closing argument.

This court reviews claims for ineffective assistance of counsel de novo. State v. Suther by,

165 Wn.2d 870,883,204 P.3d 916 (2009). "To prevail on a claim of ineffective

assistance of counsel, counsel's representation must have been deficient, and the deficient

representation must have prejudiced the defendant." State v. Aho, 137 Wn.2d 736, 745,

975 P.2d 512 (1999).

       Courts are reluctant to find ineffective assistance of counsel except in the most

extreme cases. State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987). This is

particularly true where, as here, the alleged deficient performance consists of an



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In re Det. of Botner


attorney's failure to object. "The decision of when or whether to object is a classic

example of trial tactics. Only in egregious circumstances, on testimony central to the

State's case, will the failure to object constitute incompetence of counsel justifying

reversal." State v. Madison, 53 Wn. App. 754, 763, 770 P.2d 662 (1989). If a claim of

ineffective assistance of counsel rests on counsel's failure to object, "a defendant must

show that an objection would likely have been sustained." State v. Fortun-Cebada, 158

Wn. App. 158, 172, 241 P.3d 800 (2010).

       1.     SORAG

      Mr. Botner argues his trial counsel was ineffective in failing to object under ER

403 to the SORAG evidence because of its highly prejudicial nature. We disagree.

During the 2009 proceedings, Mr. Botner's counsel unsuccessfully moved in limine to

exclude the SORAG evidence as irrelevant. After the 2012 remand and in preparation for

the second trial, the parties reviewed the 2009 motions in limine and agreed to

substantially abide by the prior rulings on those motions. This was sufficient to preserve

the relevance objection for purposes of appeal. See State v. Powell, 126 Wn.2d 244, 256-

57, 893 P.2d 615 (1995). Knowing that an objection to the SORAG evidence had already

been overruled, defense counsel's strategy appears to have been to undercut the

significance of the SORAG evidence and to use Dr. Hoberman's reliance on it against



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In re Det. of Botner


him. We are not in a position to re-assess this strategy. Mr. Botner's claim that defense

counsel should have raised an ER 403 objection to the testimony as well as a relevance

objection must fail.

       2.     Closing Argument

       Mr. Botner contends the following assertions made by the State during its closing

were misconduct: (1) "You're not being asked to find any particular diagnosis. You're

not trying to figure out which one he might be diagnosed with." 6 VRP at 967, (2) "[I]t's

clear to anyone who's heard the evidence in this case that there is something seriously

wrong with Mr. Botner." 6 VRP at 976, and (3) "[Y]ou're not required to find any

particular paraphilia or any particular named sexual psychosexual pathology .... " 6 VRP

at 1012-13. The main thrust of Mr. Botner's argument is that the State misrepresented the

law and shifted the burden of proof by suggesting the jury could either invent its own

mental diagnosis or commit Mr. Botner without finding any mental diagnosis at all.

       To show prosecutorial misconduct, a defendant must establish the conduct was

both improper and prejudicial. State v. Fisher, 165 Wn.2d 727, 747, 202 P.3d 937

(2009). However, even if the conduct is improper, it is not grounds for reversal "if [it

was] invited or provoked by defense counsel and [is] in reply to his or her acts and

statements, unless [the conduct is] not a pertinent reply or [is] so prejudicial that a


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No. 32939-9-III
In re Det. of Botner


curative instruction would be ineffective." State v. Russell, 125 Wn.2d 24, 86, 882 P.2d

747 (1994). This court reviews the allegedly improper comments in the context of the

entire closing argument, the issues presented, the evidence addressed, and the instructions

given to the jury. Id. at 85-86.

       An SVP is "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 element the State must prove beyond a

reasonable doubt is whether the person suffers from a mental abnormality or a personality

disorder; the jury does not have to decide which specific diagnosis constitutes a legal

mental abnormality or personality disorder. See In re Det. of Sease, 149 Wn. App. 66, 76-

77,201 P.3d 1078 (2009); In re Det. of Halgren, 156 Wn.2d 795, 810-12, 132 P.3d 714

(2006).

       Mr. Botner isolates the State's comments, analyzing them singularly rather than

contextually. First, the State argued the jury's responsibility was to determine whether

Mr. Botner's pathology qualifies as a mental abnormality. In so doing, the State correctly

articulated the law, arguing the jury was not required to find any particular mental

abnormality or personality disorder; rather, the State just needed to prove Mr. Botner



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     In re Det. of Botner


     suffered from a mental abnormality or a personality disorder. The State then qualified its

     argument by telling the jurors that the doctors' expert testimony was intended to help the

     jury reach this conclusion before detailing how the evidence supported a finding that Mr.

     Botner suffered from a mental abnormality.

            Second, the State used the comment about something being "seriously wrong with

     Mr. Botner" in an attempt to discredit Dr. Donaldson's testimony. The State argued that,

     because Dr. Donaldson was apparently ignoring all the evidence showing Mr. Botner

     suffered from a mental abnormality or personality disorder, the jurors had to decide what

     Dr. Donaldson's reasons were for so doing. The State then argued that while deciding

     Dr. Donaldson's motives was a decision left to the jury, Dr. Donaldson's conclusions

     "seem[] awfully hard to believe when it's clear to anyone who's heard the evidence in

     this case that there is something seriously wrong with Mr. Botner." 6 VRP at 976.

            Third, in its rebuttal, the State reargued many of its points, even using similar

     language. It noted the jurors had heard "testimony from both doctors to try to help [them]

     understand how psychology and the law fit together." 6 VRP at 1012. The State then

     gave a proper interpretation of the jury instruction: the jury was not required to find any

j    particular paraphilia or psychosexual pathology in order to find Mr. Botner suffered from



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     a mental abnormality or a personality disorder. The State went on to reiterate that there



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had been a lot of testimony presented to help the jury determine whether there was a

mental abnormality or a personality disorder before specifically discussing why Mr.

Botner was, by definition, a sexual sadist.

       Essentially, the State emphasized the testimony of Dr. Hoberman throughout its

entire closing argument; by doing so, it is clear the State did not intend for the jury to

speculate as to the existence of a mental abnormality or a personality disorder. Because

the State's comments were not improper, Mr. Botner's counsel's failure to object was not

deficient performance.

       But to the extent any portion of the State's closing argument was improper, Mr.

Botner has not shown prejudice. The court properly instructed the jury ( 1) on the

elements the State had to prove to establish whether Mr. Botner was an SVP, (2) on the

statutory definitions of "mental abnormality" and "personality disorder," and (3) about

disregarding any arguments made by the attorneys that were unsupported by the evidence

or the law. Juries are presumed to follow the court's instructions. State v. Warren, 165

Wn.2d 17, 28, 195 P.3d 940 (2008). The jury was entitled to find Dr. Hoberman's

testimony more credible than Dr. Donaldson's. Dr. Hoberman's testimony was strong

evidence in favor of the jury's verdict. It cannot be said the result of the trial would have

been different had Mr. Botner's counsel objected.


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            Based on the foregoing, we find no error and affirm. We further exercise our
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     discretion under RCW 10.73.160(1) and RAP 14.2 to not award costs. State v. Stump,

     No. 91531-8, slip op. at 5 (Wash. April 28, 2016) ("[Rule 14.2] gives appellate court

     judges the discretion to deny costs, even to a prevailing party.")

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

     Washington Appellate Reports, but it will be filed for public record pursuant to RCW

     2.06.040.




                                                Pennell, J.
     WE CONCUR:




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