                                                                         FILED BY CLERK
                             IN THE COURT OF APPEALS                         SEP 22 2005
                                 STATE OF ARIZONA                            COURT OF APPEALS
                                   DIVISION TWO                                DIVISION TWO




                                              )           2 CA-MH 2004-0005-SP
                                              )           DEPARTMENT B
IN RE COMMITMENT OF                           )
PAUL E. FRANKOVITCH                           )           OPINION
                                              )
                                              )
                                              )


              APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                                   Cause No. A-36949

                           Honorable Patricia G. Escher, Judge

                                       AFFIRMED


Barbara LaWall, Pima County Attorney
 By Amy Pignatella Cain                                                            Tucson
                                                                    Attorneys for Appellee

Jill Thorpe                                                                        Tucson
                                                                    Attorney for Appellant


E S P I N O S A, Judge.


¶1             Appellant Paul Frankovitch appeals from the trial court’s denial of his two

petitions for release and to change his status as a sexually violent person (SVP). He

challenges the court’s findings that the state had proved beyond a reasonable doubt that his

mental disorders have not changed, that he continues to have serious difficulty controlling
his behavior, that he remains a danger to others, and that it is highly probable he will engage

in acts of sexual violence if he is discharged. We affirm.

¶2            After a jury trial in 1999, Frankovitch was found to be an SVP as defined in

A.R.S. § 36-3701(7). He was committed to the custody of the Department of Health Services

to be placed in a licensed facility under the supervision of the superintendent of the Arizona

State Hospital. A.R.S. § 36-3707(B)(1). This court affirmed the jury’s verdict and the

commitment order on appeal. In re Commitment of Frankovitch, No. MH 99-0018-SP

(memorandum decision filed Nov. 9, 2000). The Arizona Community Protection and

Treatment Center of the Arizona State Hospital filed an annual report in 2000, 2001, and

2002, as required by A.R.S. § 36-3708. Because of numerous motions and constitutional

challenges Frankovitch filed in the trial court and special action proceedings he filed in this

court between 2000 and 2002, the trial court conducted a single hearing on his petitions

challenging the conclusions of those annual reports that he should not be released, resulting

in the ruling from which he now appeals.

                                    Right to Jury Trial

¶3            Frankovitch first argues the trial court erred in ruling that he was not entitled

to a jury trial on his petitions. We review de novo issues involving the application of

statutes. City of Tucson v. Clear Channel Outdoor, Inc., 209 Ariz. 544, 105 P.3d 1163

(2005). When the state filed the petition to have Frankovitch declared an SVP in May 1998,

the applicable statutes were found in Title 13, the criminal code. 1997 Ariz. Sess. Laws, ch.



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136, §§ 30 through 39; 1996 Ariz. Sess. Laws, ch. 315, § 15. The original statute governing

procedures on petitions for release permitted either party to request a jury trial. Former

A.R.S. § 13-4509(A) and (E), 1995 Ariz. Sess. Laws, ch. 257, § 7; renumbered as former

A.R.S. § 13-4609 pursuant to authority of A.R.S. § 41-1304.02. In 1998, the statutes were

amended and transferred to Title 36, the public health and safety statutes, 1998 Ariz. Sess.

Laws, ch. 136, §§ 6 and 7 through 19, and three statutes were added. 1998 Ariz. Sess. Laws,

ch. 136, §§ 20, 21.

¶4             The present statute governing petitions for change of status, the one in effect

when Frankovitch’s hearing was held, is A.R.S. § 36-3709. It no longer permits a jury trial

on such petitions. Frankovitch argues he was nevertheless entitled to a jury trial, claiming

the current statute could not be retroactively applied to deprive him of that right. We

disagree. Frankovitch is correct that no statute is retroactive unless it expressly so provides.

See A.R.S. § 1-244. He is also correct that the Arizona Constitution states: “The right of

trial by jury shall remain inviolate.” Ariz. Const. art. II, § 23; see also U. S. Fid. & Guar. Co.

v. State, 65 Ariz. 212, 216, 177 P.2d 823, 826 (1947) (“That the right to a trial by jury is a

most substantial right is beyond question.”). But we find no merit to Frankovitch’s assertion

that he has a vested right to a jury trial on a petition for change of status.

¶5             A right is vested “‘when the right to enjoyment, present or prospective, has

become the property of some particular person or persons as a present interest.’” Hall v.

A.N.R. Freight Sys., Inc., 149 Ariz. 130, 140, 717 P.2d 434, 444 (1986), quoting Steinfeld v.



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Nielsen, 15 Ariz. 424, 465, 139 P. 879, 896 (1913); see also San Carlos Apache Tribe v.

Superior Court, 193 Ariz. 195, 972 P.2d 179 (1999). Contingent rights, on the other hand,

are those that only “‘come into existence on an event or condition which may not happen or

be performed until such other event may prevent their vesting.’” Hall, 149 Ariz. at 140, 717

P.2d at 444, quoting Steinfeld, 15 Ariz. at 465, 139 P. at 896.

¶6            The trial court concluded that, before Frankovitch was found to be an SVP, he

had had, at best, a contingent right to a jury trial on a petition for change of status.

Frankovitch quotes the following language: “A vested right ‘is actually assertable as a legal

cause of action or defense or is so substantially relied upon that retroactive divestiture would

be manifestly unjust.’” San Carlos Apache Tribe, 193 Ariz. 195, ¶ 15, 972 P.2d at 189,

quoting Hall, 149 Ariz. at 140, 717 P.2d at 444. Without analysis, he simply asserts that his

right to a jury trial on a petition for change of status vested in May 1998 when the state filed

the petition alleging he was an SVP. Our analysis, however, leads us to a different

conclusion.

¶7            In Hall, the supreme court faced the question of whether the legislature’s

adoption of comparative negligence could “constitutionally be applied to cases arising prior

to the [statute’s] effective date but filed subsequent thereto.” 149 Ariz. at 137, 717 P.2d at

441. In concluding that it could, the court found the defendant had acquired a vested right

to assert the affirmative defense of contributory negligence when the plaintiff had filed his

complaint. The filing of the complaint was the operative date in that case because the



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purpose of the action was to adjudicate the defendant’s liability for its conduct in causing the

plaintiff’s injuries on an earlier date.

¶8             In the example on which Frankovitch relies, a criminal defendant’s rights are

governed by the date the charged offense was committed. See A.R.S. § 1-246. A proceeding

on a petition to have a person declared to be an SVP, however, is not a criminal action but

a civil action. See Martin v. Reinstein, 195 Ariz. 293, 987 P.2d 779 (App. 1999). A criminal

proceeding determines whether a crime was committed in the past and whether the accused

committed it. Unlike the situation in Hall, a petition to declare a person sexually violent

seeks a declaration of the person’s current status. See A.R.S. § 36-3701(7). The operative

date is thus the date of such declaration, and any rights related to hearings on petitions for

release vest only at that time. Accordingly, because Frankovitch was not declared to be an

SVP until October 1, 1999, after § 36-3709 was amended, he had no vested right to a jury

trial on his subsequent petitions for release and for a change of status.

                                Expert Witness’s Testimony

¶9             We find no merit to Frankovitch’s next contention, that the trial court erred in

overruling his objection to the state’s calling Dr. Morenz to testify. Frankovitch challenges

the ruling on three grounds, arguing the testimony violated Rule 26(b)(4)(D), Ariz. R.

Civ. P., 16 A.R.S., Pt. 1; was cumulative; and was untimely disclosed. We agree with the

state that Morenz was not an independent expert as the term is used in Rule 26(b)(4)(D). The

rule provides that “each side shall presumptively be entitled to only one independent expert



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on an issue, except upon a showing of good cause.” Id. Paragraph (B) of Rule 26(b)(4)

refers to “an expert who has been retained or specially employed by another party in

anticipation of litigation or preparation for trial.” See also Ariz. Dep’t of Revenue v. Superior

Court, 189 Ariz. 49, 54-55, 938 P.2d 98, 104-05 (App. 1997) (former rule limiting number

of expert witnesses applied to “witnesses hired in anticipation of litigation or trial for

testimonial purposes”). And the comment to Rule 26(b) notes: “The words ‘independent

expert’ in this rule refer to a person who will offer opinion evidence who is retained for

testimonial purposes and who is not a witness to the facts giving rise to the action.” Ariz. R.

Civ. P. 26(b), 1991 Comm. cmt.

¶10           Morenz testified that he had examined Frankovitch in 1998 pursuant to a

contract with the Department of Corrections and that the contract was still in force when he

testified in 2003. Although Frankovitch acknowledges that Morenz probably was not

“retained” by the state, he argues the psychiatrist was an independent expert because he was

not employed by the Pima County Attorney’s Office. But that office is not a party to this

action; it is instead legal counsel for the actual party, the State of Arizona.

¶11           Frankovitch also argues that Morenz’s opinions were developed in anticipation

of litigation, which made him an independent expert. That argument appears facially

persuasive, but it does not withstand closer scrutiny. The Department of Corrections did ask

Morenz to evaluate Frankovitch to determine whether the state should file a petition for his

commitment as an SVP upon his release from prison. But the doctor’s contract called for



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him to screen inmates who had committed sexual offenses and who were scheduled for

imminent release. That he might recommend the state file petitions for some of the persons

he screened does not mean he had been “retained for testimonial purposes.” Ariz. R. Civ.

P. 26(b), 1991 Comm. cmt.

¶12           As noted above, a typical civil action entails an adjudication about past events.

Although an SVP proceeding requires evidence about a person’s criminal past, it primarily

determines the person’s current status and whether the person presently suffers from a

particular type of mental disorder. See § 36-3701(7). The latter determination necessarily

requires that the person undergo a psychological examination. Therefore, the professional

who conducts such an examination is more akin to a “witness to the facts giving rise to the

action” than to an expert “retained for testimonial purposes.” Ariz. R. Civ. P. 26(b), 1991

Comm. cmt.

¶13           Nor do we agree with Frankovitch that Morenz’s testimony was cumulative to

Dr. Becker’s testimony. The evidence showed that Frankovitch had refused to be reevaluated

before each annual report was prepared. As a result, the state called Morenz to establish that

he had diagnosed Frankovitch in 1998 as having a mental disorder of the type defined in the

statute and that Frankovitch had met the statutory definition of an SVP even under the

standards imposed by cases decided after he was committed.

¶14           Becker, the director of the Arizona Community Protection and Treatment

Center, testified that she had reviewed the annual reports, discussed them with their authors,


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and concluded that Frankovitch’s criminal history and other records supported his diagnoses

and that nothing in the records during his commitment showed any change from those

diagnoses.   She also testified that Frankovitch had refused all treatment since his

commitment and that it was highly probable he would commit new sexually violent offenses

if he were released. Because the experts testified about different issues, and because Morenz

did not simply reiterate his 1998 opinions but discussed his evaluation of Frankovitch in

relation to newly imposed standards, the trial court did not err in concluding their testimony

was not cumulative.

¶15           Finally, we find no abuse of discretion in the trial court’s rejection of

Frankovitch’s claim that the state had untimely disclosed Morenz’s opinions. See Jimenez

v. Wal-Mart Stores, Inc., 206 Ariz. 424, 79 P.3d 673 (App. 2003) (ruling on alleged

disclosure violations reviewed for abuse of discretion). Frankovitch apparently contends

Morenz stated that his 1998 diagnosis continued to apply as well when he testified in

December 2003, even though the doctor had only evaluated Frankovitch in 1998. But the

question the state actually asked Morenz, and to which Frankovitch objected, was whether

the doctor would have recommended that the state petition to have Frankovitch committed

as a sexually violent offender in 1998 under the 2003 case law interpretation of the statutory

requirements. Morenz’s affirmative answer to that question did not constitute an opinion that

the diagnosis he had given Frankovitch in 1998 still applied in 2003. Therefore, the trial




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court did not abuse its discretion in overruling Frankovitch’s objection that the doctor’s new

opinion had not been timely disclosed.

                              Admission of Criminal History

¶16            Frankovitch next contends the trial court’s admission over his objection of his

criminal history, including arrests as well as convictions, violated his right to confrontation

under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004). We reject that

contention for two reasons. First, Crawford applies to criminal cases. As noted previously,

a proceeding to declare a person sexually violent is a civil action. Martin. Therefore, a case

decided under the Sixth Amendment does not apply to Frankovitch. More importantly,

however, Frankovitch never claimed below that his confrontation rights were being violated.

Accordingly, he waived the argument, and we do not address it further. See Webber v.

Grindle Audio Prods., Inc., 204 Ariz. 84, 60 P.3d 224 (App. 2002) (appellate courts do not

decide issues not raised in trial court).

                          Inability to Contest Original Diagnosis

¶17            Next, Frankovitch argues the trial court erred in ruling that he could not

challenge at the review hearing the diagnoses of the experts who had testified at the 1999

trial at which he was found to be an SVP. We find no error. The trial court ruled:

               The accuracy and legitimacy of [Frankovitch’s] diagnosis, and
               whether the diagnosed disorder would support a finding that
               [Frankovitch] is a sexually violent person, were matters to be
               litigated in the original proceedings. Having failed to raise these
               issues at trial or on appeal, [Frankovitch] is precluded from
               raising them in this proceeding.

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¶18           The state asserts Frankovitch never raised the issue until his post-hearing

memorandum. Frankovitch has attached to his reply brief pages from Morenz’s cross-

examination at the 1999 trial. Frankovitch is correct that the pages show his attorney asked

whether there was a controversy among experts on whether a rapist can have a paraphilia.

In that sense, the trial court erred. But, contrary to his assertion, Frankovitch did not

challenge the diagnosis on appeal. The pages he has attached from his opening brief on his

appeal from the 1999 trial show he did challenge the sufficiency of the evidence supporting

the verdict. But nothing in those pages claimed that his diagnosis, paraphilia not otherwise

specified (NOS), is an inappropriate diagnosis for a rapist.            Accordingly, because

Frankovitch did not challenge the experts’ diagnoses in his appeal from the jury’s verdict that

he was an SVP, he waived the issue, and the trial court did not err in ruling that he could not

raise it in an annual review hearing. See Hall v. Lalli, 194 Ariz. 54, 977 P.2d 776 (1999) (res

judicata bars litigant from raising claim in new action between same parties that could have

been determined in prior action on which judgment was rendered on merits).

                                Sufficiency of the Evidence

¶19           Lastly, Frankovitch challenges the sufficiency of the evidence supporting the

trial court’s findings in denying his petitions. He first argues at length that the diagnosis of

paraphilia NOS is an inappropriate diagnosis, asserting that raping nonconsenting adult

women is not recognized as a paraphilia in the Diagnostic and Statistical Manual of Mental

Disorders IV. As a result, he contends he does not have a diagnosis that meets the statutory



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requirements for his continued commitment. But the trial court heard conflicting evidence

on that issue and resolved the conflicts by finding “credible the testimony of Drs. Morenz and

Becker that [p]araphilia NOS, nonconsenting adult, is recognized as a valid diagnosis by

those professionals working in the area of sexual disorders, even if it is not accepted by all

psychologists and psychiatrists.” Because the state presented evidence that supports that

ruling, we defer to the trial court’s resolution of the conflicts in the evidence, acknowledging

that it was in the best position to determine the credibility of the witnesses. See In re U.S.

Currency of $26,980.00, 199 Ariz. 291, 18 P.3d 85 (App. 2000).

¶20           Second, Frankovitch argues the evidence was insufficient to support the court’s

conclusion that the state had proved beyond a reasonable doubt he was “likely to engage in

acts of sexual violence if discharged.” A.R.S. § 36-3714(C). He acknowledges Becker

testified it was highly probable he would commit future sexually violent acts if he were

released. But he nevertheless contends the court’s conclusion was wrong, citing a study that

showed rapists over the age of fifty have low recidivism rates and Dr. Maskel’s testimony

that Frankovitch was a typical offender in that category and, thus, had less than a ten percent

chance of committing sexually violent offenses if released. Again, however, Frankovitch

cites a conflict in the evidence that the trial court resolved against him. That the court agreed

with the state’s experts and not his own does not mean the court’s conclusion is unsupported

by the evidence.




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¶21           In light of the evidence that Frankovitch had refused to undergo any treatment

since being committed in 1999 and that he had refused to be evaluated for the three annual

reports at issue, the evidence reasonably supports the trial court’s conclusions that

Frankovitch continued to meet the statutory definition of an SVP and should not be released.

Accordingly, we affirm the court’s order.


                                        _______________________________________
                                        PHILIP G. ESPINOSA, Judge

CONCURRING:


_______________________________________
JOHN PELANDER, Chief Judge


_______________________________________
M. JAN FLÓREZ, Presiding Judge




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