                                                                                                    20111 €'! r.1:   0

     IN THE COURT OF APPEALS OF THE STATE OF WAR 0*-
                                                 -
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                                                                                                    B' r'
                                                 DIVISION II


In the Matter of the Detention of:                                                 No. 45030 -5 -II


JERROD STOUDMIRE,
 aka DUANE G. STOUDMIRE,
                                                                           UNPUBLISHED OPINION


                                       Appellant.


          WORSWICK, P. J. —         Jerrod Stoudmire appeals a trial court order civilly committing him as

a sexually violent predator (SVP). 1 Stoudmire contends that the State failed to present sufficient
                                                                the definition           SVP. We affirm the trial
evidence   to   support   the   jury' s finding that he   met                    of an




court' s civil commitment order.



                                                          FACTS


          Stoudmire has admitted to the following history of sexual misconduct against minor

female victims. When Stoudmire was 12 or 13 years old, he molested two 8- year -old girls and a

10- year -old girl by touching the girls on their breasts and vaginal areas. After the girls' parents

found out about Stoudmire' s behavior, they scolded him but did-not report his behavior to the

police.




          In November 1980, when Stoudmire was 15 years old, he touched a 9- year -old girl on her

vaginal area over her clothing and forced her 6- year -old sister to touch his penis over his

clothing. Based on this sexual misconduct, a juvenile court adjudicated Stoudmire guilty of two



1
    Chapter 71. 09 RCW.
No. 45030 -5 -II



counts of indecent liberties2 and committed him to 26 to 32 weeks in a juvenile correctional


facility.

        After his release from juvenile commitment in September 1981, Stoudmire volunteered at


a community center as a dance instructor for children who were 9 to 14 years old. In 1983, when

Stoudmire was 18 years old, he began sexually abusing BP,3 an 11- year -old girl in his dance

group. From 1983 to 1987, Stoudmire continued to commit hundreds of sexual acts against BP,

which acts included sexual intercourse. During that same time period, Stoudmire also committed

sexual acts against    6   other girls   in his dance group, CM, BB, C_, V   EB, and ED; each of the


girls was 11 to 13 years old when Stoudmire began sexually abusing them.

            In June 1987, the State charged Stoudmire with indecent liberties based on his sexual

misconduct against      ED.    ED had told the police that Stoudmire was also committing sexual acts

against other members of the dance group, but Stoudmire convinced BP and BB to deny ED' s

allegations against him. Stoudmire continued to commit sexual acts against members in his

dance group while he was awaiting trial on his indecent liberties charge. In January 1988, a jury

found Stoudmire guilty of indecent liberties and the trial court sentenced him to one year and one

day of incarceration. While Stoudmire remained out of custody pending an appeal of his
indecent liberties conviction, he continued to commit sexual acts against former members of his

dance group, including BP and CM.




2 Former RCW 9A. 88. 100 ( 1975).


3 This opinion refers to the juvenile victims by their initials to protect their privacy interests.
General Order 2011 -1 of Division II, In Re The Use OfInitials Or Pseudonyms For Child
 Witnesses In Sex Crimes Cases, available at http:vvww.courts.wa.gov/appellate_trial_courts/.


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No. 45030 -5 - II


         Stoudmire served his sentence for indecent liberties from December 1989 to October


1990. After Stoudmire was released from incarceration, he went to live with the family of an 11-

year -old girl,   HS.   A short time after moving in with the family, Stoudmire, who was then 26

years old, began committing sexual acts against HS, which acts included sexual intercourse.

Stoudmire continued sexually abusing HS until 1992. In July 1992, the State charged Stoudmire

with one count of second degree child rape4 for his sexual misconduct against HS. Around that


same time, the State separately charged Stoudmire for his sexual misconduct against BP. and CM.

In September 1993, Stoudmire pleaded guilty to second degree child rape for his sexual

misconduct against HS, and he pleaded guilty to second degree statutory rape,5 second degree
child rape, third degree child rape,6 and two counts of indecent liberties for his sexual

misconduct against BP and CM.7 The trial court sentenced Stoudmire to a total of 198 months of

incarceration.




4 RCW 9A.44. 076.

5
    Former RCW 9A.44. 080 ( 1979).      The legislature repealed former RCW 9A.44. 080 in July
1988. LAWS OF WASHINGTON 1988,            ch.   145, § 24. The State' s information alleged that

Stoudmire committed second degree statutory rape between September 1, 1985 and June 30,
 1988, before the legislature had repealed former RCW 9A.44.080.

6 RCW 9A.44.079.

7 Our Supreme Court vacated Stoudmire' s 1993 convictions of two counts of indecent liberties
on statute of limitation grounds after Stoudmire filed a successful personal restraint petition. In
re   Pers. Restraint of Stoudmire, 141 Wn.2d 342, 354 -55, 5 P. 3d 1240 ( 2000). The vacation of
 Stoudmire' s indecent liberties convictions did not affect his total incarceration term.



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No. 45030 -5 -II



       The State filed a petition to civilly commit Stoudmire as a sexually violent predator

shortly before Stoudmire' s scheduled release date. At the jury trial, Stoudmire admitted to the

sexual misconduct described above.


       Dr. Harry Hobennian testified as the State' s expert witness. Hoberman testified that he

had interviewed and had administered psychological testing on Stoudmire in 2007 and 2011. 8 In

evaluating Stoudmire' s psychological condition, Hoberman also relied on several documents,

including Stoudmire' s medical records, DOC records, police reports, and court documents.

       Hoberman diagnosed Stoudmire       with    two types    of paraphilia— pedophilia and




hebephilia.9 Hoberman opined that Stoudmire' s paraphilia diagnoses constituted mental

abnormalities10 under the SVP statute. In this regard, Hoberman testified that paraphilia is a

congenital or an acquired condition. And Hoberman testified that the condition affected


Stoudmire' s emotional or volitional capacity in such a degree that it predisposed Stoudmire to




8
 Specifically, Hoberman testified that he had conducted three or four structured interviews and
had administered the Minnesota Multiphasic Personality Inventory II (MMPI -II), the Millon
Clinical Multiaxial Inventory second edition, the Paulhus Deception Scale, and the Personality
Disorder Questionaire version 4 in 2007. He further testified that he had administered the
MMPI -II, the Millon Clinical Multiaxial Inventory third edition, and the Multiphasic Sex
Inventory II during his reevaluation of Stoudmire in 2011.

9 Hoberman explained that paraphilia is a type of sexual disorder involving " recurrent, intense
sexually arousing fantasies,   sexual urges or   behaviors."   Report of Proceedings ( May 28, 2013) at
107. Pedophilia is a paraphilia related to a sexual attraction to prepubescent children, whereas
hebephilia is a paraphilia related to a sexual attraction to children who have attained puberty.

10 RCW 71. 09.020( 8) defines " Mental abnormality" as " a congenital or acquired condition
affecting the emotional or volitional capacity which predisposes the person to the commission of
criminal sexual acts in a degree constituting such person a menace to the health and safety of
others."




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No. 45030 -5 -II



commit criminal acts endangering the health and safety of others based on Stoudmire' s history of

repeated sexual offending despite criminal sanctions.

       Hoberman also diagnosed Stoudmire with two personality disorders: antisocial

personality disorder and narcissistic personality disorder. Hoberman also determined that

Stoudmire had a high level of psychopathy, which Hoberman described as " similar to a

personality disorder."    Report     of   Proceedings ( RP) (   May 28, 2013) at 137. Hoberman explained

that " persons who have a higher degree of psychopathic traits are more likely to be involved in

criminal   behavior,   violent   behavior, [ and]   sexual   offending."   RP ( May 28, 2013) at 137 -38.

Hoberman opined that Stoudmire' s personality disorders constituted mental abnormalities under

the SVP statute.


           Hoberman stated his opinion that Stoudmire would more likely than not engage in

predatory acts of sexual violence if not confined to a secure facility. Hoberman said that he

based this opinion on Stoudmire' s individual risk factors and by using actuarial tools to compare

the recidivism rate of offenders that scored similarly to Stoudmire in the various psychological

tests that Stoudmire completed. Hoberman concluded that, to a reasonable degree of


psychological certainty, Stoudmire had one or more mental abnormalities and personality

disorders that made him more likely than not to commit predatory acts of sexual violence if not

confined to a secure facility.

        Dr. Luis Rosell testified as an expert for the respondent. Rosell similarly diagnosed

Stoudmire with pedophilia and antisocial personality disorder based on Stoudmire' s history.

Rosell opined, however, that based on the passage of time since his last offense and based on his


participation in treatment, Stoudmire did not currently have serious difficulty controlling his



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No. 45030 -5 - II



pedophilic behavior. Rosell also noted that antisocial personality disorder generally remits in the

fourth decade of an individual' s life. Rosell concluded that Stoudmire did not meet the criteria .

for commitment as an SVP because Stoudmire did not have a mental abnormality or personality

disorder that made him likely to commit sexually violent acts in the future if not confined to a

secure facility.

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

that Stoudmire was a sexually violent predator, and the trial court entered an order civilly

committing Stoudmire to the custody of the Department of Social and Health Services.

Stoudmire appeals.


                                                         ANALYSIS


          Stoudmire asserts that the State failed to present sufficient evidence to support the jury' s

verdict   finding   that   he   met   the definition    of an   SVP.   Specifically, he contends that the State

failed to present sufficient evidence that his mental abnormalities or personality disorders made

him likely to engage in predatory acts of sexual violence if not confined in a secure facility. We
disagree.


          We apply the same standard of review to sufficiency challenges to SVP civil commitment

determinations as we apply to sufficiency challenges to criminal convictions. In re Det. of

Thorell, 149 Wn.2d 724, 744, 72 P. 3d 708 ( 2003).                   Under this   standard, "   We must determine


whether the evidence, viewed in a light most favorable to the State, is sufficient to persuade a

fair minded rational person that the State has proven 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) ( citing Thorell, 149 Wn.2d            at   744).    We defer to the trier of fact on conflicting



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No. 45030 -5 -II



testimony, witness credibility, and the persuasiveness of the evidence. In re Det. ofSease, 149

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

       To civilly commit Stoudmire as an SVP, the State had to prove beyond a reasonable

doubt that he met the definition of an SVP under RCW 71. 09. 020. In re Det. ofPost, 170 Wn.2d

302, 310, 241 P. 3d 1234 ( 2010).        RCW 71. 09. 020( 18) defines a " Sexually 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 that the State was required to prove beyond a reasonable

doubt in order to civilly commit Stoudmire as an SVP:

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

Post, 170 Wn.2d      at   310 ( quoting RCW 71. 09. 020( 18)).      Stoudmire challenges only the

sufficiency   of evidence     in   support of   the third           whether his mental abnormality or
                                                            element —




personality disorder makes him likely to engage in predatory acts of sexual violence if not

confined in a secure facility.

        As an initial matter, Stoudmire frames this issue as a challenge to the evidence supporting

a finding that he had a serious difficulty controlling his behavior, citing Thorell, 149 Wn.2d 724.

Br. of Appellant at 13 - 14. In Thorell, our Supreme Court addressed whether the United States

Supreme Court' s decision in Kansas v. Crane, 534 U. S. 407, 122 S. Ct. 867, 151 L. Ed. 2d 856

 2002) ( holding   that due process requires a lack -of-control determination before a State could

civilly commit a sexually violent offender), required the trial court to instruct the jury in an SVP



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No. 45030 -5 -II



proceeding to return a specific finding that the respondent had a serious difficulty controlling his

or   her behavior. 149 Wn.2d at 735 -36. The Thorell court answered this question in the negative,


reasoning that the standard " to commit" jury instruction listing the three elements of an SVP

determination adequately required a finding that the respondent had a serious difficulty

controlling his or her behavior and, thus, satisfied the due process concerns addressed in Crane.

149 Wn.2d at 742 -43. Because Thorell explicitly held that Crane did not require the State to

prove any additional elements beyond the three required elements to an SVP determination, we

consider this issue as a challenge to the third element (whether Stoudmire' s mental abnormality

or personality disorder makes him likely to engage in predatory acts of sexual violence if not

confined in a secure facility).

          Stoudmire acknowledges the evidence at trial that Hoberman had diagnosed him with a


mental abnormality of paraphilia, had opined that the abnormality affected Stoudmire' s

emotional or volitional control, and had concluded that the abnormality predisposed him to

commit predatory acts of sexual violence in the future if not confined. But he asserts that

Hoberman'     s   testimony   was   insufficient to   support   the   jury' s   SVP determination because "[ i]n the


25 years since his conviction, ample evidence demonstrates that Mr. Stoudmire has the capacity

to   manage   his behavior."    Br. of Appellant at 15.


          This argument ignores the scope of our review in assessing the sufficiency of evidence in

support of an SVP determination because it asks us to view the evidence in a light most

favorable to the respondent, to resolve issues of conflicting testimony and witness credibility,

and to evaluate the persuasiveness of evidence. But in reviewing the evidence in support of an

SVP determination, we view the evidence in a light most favorable to the State, and we defer to




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No. 45030 -5 -II



the trier of fact on conflicting testimony, witness credibility, and the persuasiveness of the

evidence. Hoisington, 123 Wn. App. at 147; Sease, 149 Wn. App. 80.

        Here, applying the correct standard to our review of Stoudmire' s sufficiency challenge,

we hold that the State presented ample evidence through Hoberman' s expert testimony that

Stoudmire had a mental abnormality or personality disorder making him likely to engage in

predatory acts of sexual violence if not confined in a secure facility. Accordingly, we affirm the

trial court' s order civilly committing Stoudmire as an SVP.

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

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

2. 06. 040, it is so ordered.




                                                                      Worswick, P. J.
 We concur:




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