          IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON



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IN RE DETENTION OF                                      No. 71116-4-1                               ---i <—


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GARTH SNIVELY,
                                                        DIVISION ONE                         ro
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                       Appellant                                                                     CO ,T
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                                                        UNPUBLISHED OPINION                   c?         .! -~

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                                                        FILED: April 20. 2015


       Spearman, C.J. — Garth Snively was civilly committed as a sexually violent

predator (SVP) in 2006. He petitioned for unconditional release in October 2012. At trial,

the juryfound that he continued to meet the requirements for commitment as an SVP.

Snively appeals, claiming that there was insufficient evidence to support the verdict. He

also argues that the trial court erred when it admitted evidence that, if released, he

would not have a fixed residence. We find no error and affirm.

                                                FACTS

        In 1994, Garth Snively was convicted of two counts of first degree child

molestation and indecent liberties and sentenced to a prison term.1 Before completing

that sentence, the State petitioned to have Snively civilly committed as a sexually



       1As part of his sentence, Snively was required to serve a two-year term of community placement.
He served over a yearand a half ofthattime at a secure community facility, beginning in March 2012. At
the time of trial, October 2013, he had approximately five months remaining.
No. 71116-4-1/2



violent predator (SVP) under chapter 71.09 RCW. In 2006, a jury determined that

Snively met the statutory definition of an SVP and he was committed to the Special

Commitment Center (SCC). On March 3, 2012, Snively was conditionally released to

the Secure Community Transition Facility (SCTF) on McNeil Island. Dr. Marquez, the

forensic manager at the SCC, evaluated Snively in 2012 and determined that he no

longer met the definition of a sexually violent predator. In October 2012, Snively

petitioned for unconditional release based on Dr. Marquez's review and trial was set for

October 2013.

          At trial, the only issue in dispute was whether Snively's undisputed mental

abnormalities made him likely to engage in predatory acts of sexual violence if not

confined to a secure facility. In support of its position that Snively was likely to do so, the

State offered the expert testimony of Dr. Amy Phenix.2 Dr. Phenix testified that she

found "fairly overwhelming evidence about the difficulty [Snively] had attempting to stop

from acting on his paraphilic disorders while he was in the community." Verbatim Report

of Proceedings (VRP) (10/18/13) at 25. She concluded that Snively's conditions "very

strongly predispose[d] him to continue to commit these types of offenses in the future,"

and that he was "likely to engage in predatory acts of sexual violence if he is not

confined in a secure facility." jd. at 32.

          Dr. Phenix further testified that she performed the Static-99R Risk actuarial

assessment (S-99R) on Snively, and that it had the best predictive accuracy with regard


          2Snively moved to exclude any testimony by Dr. Phenix about the hearsay opinions of non-
testifying experts, the effect of unreported offenses on actuarial data, and opinions based on herclinical
judgment. The trial court granted the motion in part. It excluded testimony about the effect ofSnively's
unreported offenses on the actuarial assessments, but allowed Dr. Phenix to testify regarding the general
limitations of those assessments. Snively's motion was otherwise denied and he does not appeal this
ruling.
No. 71116-4-1/3



to offender recidivism. While Snively scored low on the S-99R, she testified that his

score did not accurately capture his risk. She explained how Snively "has been highly

sexually preoccupied throughout his life," as evidenced "by his offending, by his

admissions and statements about his sexual drive." jd. at 39. According to Dr. Phenix,

Snively was still "concerned about continuing to have deviant sexual fantasies" and how

he will handle them. Id. The test compared Snively to 8,000 other sex offenders, but in

her opinion, "very few of those offenders" were likely to have the "strong sexual

deviancy" that Snively had, with his high level of sexual preoccupation and three

paraphilias, jd.

       Dr. Phenix also testified that Snively was struggling with finding an appropriate

sexual outlet. He told her that he wanted to be sexual when out in the community and

that it would be a daily struggle, because he had no appropriate alternatives to express

his sexuality. On cross-examination, Dr. Phenix admitted it was possible that

reasonable evaluators could have reviewed Snively's actuarial scores, his age, and the

fact that he has participated in sexual deviancy treatment, and could have found it more

likely that Snively would not reoffend, but that she would disagree with such a finding.

       The State also presented testimony from Dr. Joe Mitrovich, who treated Snively

at the SCC in 2009 and 2012. Dr. Mitrovich worked with Snively on relapse prevention

and developing an individual treatment plan. He testified that Snively's plans, however,

"lacked the cognitive aspects of the interventions" that he expected to see from

someone in the advanced stages of treatment. VRP (10/17/13) at 54. He also testified

that Snively was very lacking in transparency, i.e., he denied masturbating to any

fantasies and described the process as "mechanical," which Dr. Mitrovich found very
No. 71116-4-1/4



unusual. ]d_. at 55. In 2012, Snively mentioned having vague fantasies but declined to

delve into the issues related to his offending. Dr. Mitrovich also mentioned that there

was once a young resident at the facility who had a fetish similar to Snively's. While

Snively acknowledged that it was a high-risk situation for him and potentially very

dangerous and arousing, he declined to process the situation beyond a mere mention.

At that time the expectation would have been for Snively to be able to explain how the

resident's presence tied into his offense cycle, but more importantly, how he planned to

intervene, manage the situation, and stay safe. When Snively left treatment with Dr.

Mitrovich, he continued to talk about his issues in a historical context but had not

addressed them in the present, nor had he articulated or developed any well-thought

out interventions for managing his sexual interests.

       Snively presented four doctors who testified in favor of his release: Dr. Marquez,

the forensic manager at the SCC who determined that Snively was no longer

dangerous; Dr. Duthie, a member of the senior clinical team who reviewed Dr.

Marquez's evaluation and agreed with his findings; Dr. Packard, who worked with the

State on civil commitment cases; and Dr. Hawkins, a psychologist who had treated

Snively at the SCTF.

       Dr. Marquez, the interim forensic manager at SCC, evaluated Snively in 2011

and 2012. In 2011 he concluded that Snively met the criteria for an SVP but was ready

for a less restrictive setting and he recommended Snively for the SCTF. As part of the

2012 evaluation, Dr. Marquez administered the S-99R to Snively and he received a low

score of zero. Based on that score, there was a seven percent chance that Snively

would reoffend during a subsequent five year period, or a twelve percent chance within
No. 71116-4-1/5



ten years. He also testified that Snively "seemed to be in tune with some significant

risks," and seemed to know that his particular interests and fetishes would "probably

haunt him for the rest of his life." VRP (10/21/13) at 93. When asked to provide his

ultimate opinion as to whether Snively was more than 51 percent likely to reoffend, Dr.

Marquez testified that he believed the likelihood was "lower than that." Id. at 99. On

cross-examination, Dr. Marquez admitted that while Snively had been practicing his

interventions in a controlled environment, it would be a "huge" difference if he were to

be released in the community, and that there would still be the risk that Snively would

find a dysfunctional family or a vulnerable child. According to him, that risk "needs to be

considered" and Snively "needs to [be] diligent in overcoming that." Id. at 118.

       Dr. Packard evaluated Snively in 2005-06 and in 2011. Dr. Packard met with

Snively a number of times and administered multiple psychological tests. He testified

about the limitations of actuarials, dynamic risk factors, and other clinical tools. Based

on the results of the various tests, he concluded that Snively's recidivism risk was

generally less than 10 percent, and that he would be considered in the "low to even

possibly very- low risk categories." VRP (10/22/13) at 77. Dr. Packard testified that

Snively's multiple paraphilias would not make him more of a risk than the actuarials

would suggest. He did agree on cross examination, however, that people who have

pedophilia "have a sense of urgency inside of them, a drive, an interest, a direction

towards engaging in sexual behavior with prepubescent children," and that they have a

tendency toward behaving in that way that is "hazardous and dangerous and harms

people." VRP (10/23/13) at 27-28.
No. 71116-4-1/6



       Dr. Duthie, a member of the SCC's senior clinical team, testified that the team

"look[ed] at Dr. Marquez's 2012 evaluation stating that Mr. Snively no longer met criteria

under the law" and "agreed with the evaluator essentially." VRP (10/23/13) at 64. Dr.

Duthie testified about Snively's placement in Barriers to Discharge and identified three

of his barriers: image management, transparency, and reorienting sexual desires. He

testified that he saw Snively as wanting to "present himself as a likeable, caring person,"

but that the senior clinical team was concerned because they had seen "some of the

same behaviors that he used to groom victims." jd. at 66. The team was "very, very

sensitive about those behaviors in group, very confrontive of him when we saw anything

like that happening in group." jd.

       Dr. Hawkins testified that he thought that Snively was "ready to deal with his

deviancy in a community setting" "[b]ecause he's done the work." VRP (10/23/13) at

114. In his opinion, Snively had "done the different kinds of assignments that we would

expect him to do. He's incorporated the principles of healthy sexuality in his life. He

understands his sexually deviancy history. He's got safe guards against re-offending.

He's ready." Id. at 115. Dr. Hawkins also testified that Snively had "developed

appropriate interventions if he finds himself in a high risk situation." jg\ He admitted,

however, that he had only been treating SVPs since April 2012, a year and a half before

trial, and that Snively was only the second SVP that he had ever treated.

       On cross-examination, the State presented Dr. Hawkins with his own treatment

reports, many of which consisted of single pages. These reports contained conclusions

that Snively had "done extremely well in his treatment," and had discovered a senior

gay support group that "may be an appropriate outlet for him and his need for support."
No. 71116-4-1/7



VRP (10/23/13) at 125. Dr. Hawkins acknowledged that "someone from senior clinical

[said] to [him] that these one page reports were insufficient" and that he was "asked to

provide more detailf.]" Id. at 128. As a result, Dr. Hawkins testified that he began to

submit three-page monthly reports. But he conceded that many of those reports

contained identical content that was simply repeated each succeeding month. Every

report concluded that Snively was not sexually preoccupied, that he understood that he

could no longer molest children, and that he no longer identified with them. Dr. Hawkins

also acknowledged in his testimony that he had reviewed Snively's updated sexual

autobiography, and that it was "riddled with massive thinking errors." jd. at 143.

      The trial court overruled Snively's objection to the introduction of evidence that

he did not have any definite plans for housing if he were to be released. Accordingly,

portions of Snively's videotaped deposition were played at trial, where he testified about

planning to rent a house in Shelton, and perhaps in the future, buy a piece of property in

Centralia, where his mother lives. The court also admitted testimony about the

difficulties that sex offenders encounter when trying to find housing; that Snively had

discussed various housing locations in Shelton, Centralia, Tacoma and Everett; and

about whether Snively had the resources to find housing and take care of himself if

released. The jury returned a verdict finding that the State had proved beyond a

reasonable doubt that Snively was an SVP as defined in RCW 71.09. The trial court

entered an order of commitment on October 24, 2013. Snively appeals.

                                      DISCUSSION


       Snively argues that there was insufficient evidence to support the finding that he

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


                                             7
No. 71116-4-1/8



facility, as required for confinement under RCW 71.09.020(18). We disagree. Evidence

is sufficient to support an order of civil commitment if "'any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.'" State v.

Myles, 127 Wn.2d 807, 816, 903 P.2d 979 (1995); RCW 71.09.060(1). All reasonable

inferences from the evidence must be drawn in favor of the State and interpreted most

strongly against the respondent. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068

(1992). Appellate courts defer to the trier of fact regarding a witness's credibility,

conflicting testimony, and the persuasiveness of the evidence. In re Detention of Broten,

130 Wn. App. 326, 335, 122 P.3d 942 (2005) (citing State v. Camarillo, 115 Wn.2d 60,

71, 794 P.2d 850 (1990)).

       Chapter 71.09 RCW governs the civil commitment of SVPs in Washington State.

Under RCW 71.09.020(18), a "sexually violent predator" means "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." A person is "likely

to engage in predatory acts of sexual violence if not confined in a secure facility" if he or

she "more probably than not will engage in such acts if released unconditionally from

detention on the sexually violent predator petition." RCW 71.09.020(7).

       The first two elements are not in dispute. In 1994, Snively pled guilty to and was

convicted of two counts of first degree child molestation and indecent liberties. At trial,

all experts agreed that Snively continued to suffer from at least two qualifying mental

abnormalities: pedophilia and fetishism. The contested issue was whether or not these

abnormalities made Snively more than 50 percent likely to reoffend as described by the


                                               8
No. 71116-4-1/9



statute if he is released. This third element must be supported by proof of "'serious

difficulty ... controlling behavior.'" In re Pet, of Audett. 158 Wn.2d 712, 728, 147 P.3d

982 (2006) (quoting In re Pet, of Thorell, 149 Wn.2d 724, 758-59, 72 P.3d 708 (2003)).

        According to Snively, no reasonable trier of fact could have concluded that he

was more than 50 percent likely to reoffend, because four doctors testified that he was

no longer sufficiently dangerous to merit confinement. He also argues that even the

State's expert, Dr. Phenix, testified that he scored very low on the risk assessment

actuarial materials.3 The State argues that the jury's finding was amply supported by

testimony from Dr. Phenix and other witnesses, even in spite of Snively's low test

scores.


        We agree with the State. It is the jury's task to assess the credibility of the

various witnesses and to weigh the conflicting testimony and the persuasiveness of the

evidence. Their determinations on those issues are not subject to review on appeal.

State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). Here, Dr. Phenix testified

that Snively's likelihood of reoffending was greater than 50 percent, and explained why

the test results did not accurately predict the risk of recidivism for someone like Snively.

Both parties presented evidence of Snively's serious difficulty controlling his behavior,



        3 Snively submitted a statementof additional authorities in support of his claim that Dr. Phenix's
testimony is insufficient to support the jury's verdict. In In re Pet, ofAnderson, 134 Wn. App. 309, 316,
139 P.3d 396 (2009), Snively notes that Dr. Phenix testified that "she commonly relieson actuarial
assessments to determine the likelihood a sex offender will reoffend." To the extent this previous
testimony arguably impeaches Dr. Phenix'strial testimony, itgoes to the jury'sassessment of the weight
to be given to the doctor's opinion, a matter we do not review on appeal. In In re Coffel, 117 S.W. 3d 116,
129 (Mo. Ct. App. 2003), the court found Dr. Phenix's testimony insufficient to support the trial court's
finding that a female defendant was an SVP because there were no scientific theories generally accepted
in the psychological community regarding whatrisk factors lead female sexual offenders to reoffend
sexually. For that reason, the court noted that Dr. Phenix's opinion that the female defendant "would
reoffend sexually would not be admissible over a proper objection." Jd. at 129. Because Snively is a male,
Coffel is of no help to him.
No. 71116-4-1/10


his lack of willingness to develop and engage interventions, and his lack of

transparency. Viewed in the light most favorable to the State, there is ample evidence

based upon which a reasonable fact finder could conclude beyond a reasonable doubt

that Snively was an SVP.

       Snively next argues that the trial court erred when it admitted evidence of the

lack of certainty surrounding his options for post-release housing. He first contends

admission of the evidence violated his right to due process because it relieved the State

of the burden of proving that his mental abnormality caused him to be more likely to

reoffend if released. According to Snively, evidence of his lack of housing permitted the

State to argue, and the jury to conclude, that, it was his possible homelessness, rather

than his mental abnormality, that caused him to be more likely to reoffend. He also

contends the evidence was inadmissible pursuant to ER 403 because it is more

prejudicial than probative. According to Snively, this is because the evidence "evoke[s]

the negative stereotype of a homeless sex offender in the minds of the juror." Brief of

Appellant at 12. Lastly, Snively argues that RCW 71.09.060(1) contemplates the

admission of evidence of his post-release housing plans only if he first offers some

evidence on the subject. He contends it is error to admit such evidence when offered by

the State unless it is to rebut evidence offered by him.

       We review a trial court's decision to admit or exclude evidence for an abuse of

discretion. In re Pet, of West. 171 Wn.2d 383, 396-97, 256 P.3d 302 (2011). A trial court

abuses its discretion when its decision is manifestly unreasonable or based upon

untenable grounds or reasons, jd. A trial court's decision is manifestly unreasonable if it

"adopts a view that 'no reasonable person would take." In re Pers. Restraint of Puncan,


                                             10
No. 71116-4-1/11



167 Wn.2d 398, 402-03, 219 P.3d 666 (2009) (quoting Mayer v. Sto Indus., Inc., 156

Wn.2d 677, 684, 132 P.3d 115 (2006)). Claims alleging violations of constitutional rights

are reviewed de novo. In re Pet, of Fair, 167 Wn. 2d 357, 362, 219 P.3d 89 (2009).

       We first consider whether evidence of Snively's lack of housing if released is

admissible in an SVP proceeding if offered by the State in its case in chief instead of as

rebuttal evidence. We conclude that it is. In Puncan, the trial testimony established that

if released, Duncan planned to live with Dion Walls. Duncan, 167 Wn.2d at 401. On

cross examination of Duncan's expert, the State asked, over objection, if he was aware

that the person Duncan planned to live with, if released, was a convicted sex offender,

to which the expert answered in the affirmative. The jury found Duncan was an SVP and

he appealed arguing that the court erred in admitting evidence of with whom Duncan

intended to reside. The court rejected Duncan's argument, holding that "[e]vidence of

who a defendant intends to live with upon release into the community is relevant

information in an SVP commitment proceeding. The fact that Duncan intended to live

with a former sex offender was properly presented to the jury." Duncan, 167 Wn. 2d at

405. Thus, under Duncan, evidence of post-release living arrangements is clearly

relevant. The trial court did not err in admitting this evidence.4

       Snively argues that even if relevant, the evidence is inadmissible under ER 403

because any probative value of evidence of Snively's homelessness was greatly

outweighed by its prejudicial effect. He argues that "[a]dmitting this evidence allowed



         4Snively also cites Duncan to argue that testimony regarding his post-release living
arrangements is inadmissible unless evidence on that issue is offered by him in the first instance or in
rebuttal. Duncan does not support his position. The case does not establish who first offered evidence of
Duncan's living situation and, contrary to Snively's contention, there was no limitation on the court's
holding that the evidence was relevant.

                                                   11
No. 71116-4-1/12



the State to conjure the stereotype of a homeless sex offender to appeal to the passions

and prejudices of the jury." Br. of Appellant at 24. But it was within the trial court's

discretion to weigh the prejudicial effect of Snively's uncertain plans against the

probative value of the testimony and Snively does not show that the trial court abused

its discretion in so doing. Moreover, even if the evidence was admitted in error, the error

was harmless. An evidentiary issue is not harmless if "'within reasonable probabilities,

had the error not occurred, the outcome of the trial would have been materially

affected.'" In re Pet, of Post, 170 Wn.2d 302, 314, 241 P.3d 1234 (2010) (Post 2)

(quoting State v. Neal, 144 Wn.2d 600, 611, 30 P.3d 1255 (2000)). Snively makes no

showing that the evidence of his living arrangements, if released, materially affected the

outcome of the trial. His only argument relies on his contention that there was

insufficient evidence for the jury to find him dangerous. Therefore, Snively argues, the

jury's finding must be based on evidence of his possible homelessness if released. But

because we have already concluded that there is sufficient evidence in the record to

support the jury's verdict, Snively fails to show that he was unduly prejudiced in any way

by the admission of this evidence.

       Next, Snively argues that the admission of evidence of his possible

homelessness, if released, violated his due process rights under the Fourteenth

Amendment of the United States Constitution because "it relieved the fact finder from

determining whether a causal connection existed between his mental abnormality and

the dangerousness required for commitment." Reply Br. at 1-2. Civil commitment for any

purpose constitutes a significant deprivation of liberty that requires due process

protection. In re Harris, 98 Wn.2d 276, 279, 654 P.2d 109 (1982). Substantive due


                                              12
No. 71116-4-1/13


process is satisfied if a finding of dangerousness is linked to the existence of a mental

abnormality or personality disorder that makes it seriously difficult for the person with

the abnormality or disorder to control his or her behavior. In re Pet, of Post, 145 Wn.

App. 728, 755, 187 P.3d 803 (2008) (Post 1). On appeal, the reviewing court is required

to determine whether sufficient evidence exists to establish such a link. Thorell, 149

Wn.2d at 736.


       We have already concluded that there is sufficient evidence in the record to

support the jury's verdict. In addition to evidence of Snively's conceded mental

abnormalities, there was substantial evidence that the conditions caused him to have

serious difficulty controlling his behavior. Moreover, Snively points to nothing in the

record suggesting that the jury determined he was dangerous because of the

uncertainty about where he would reside if released. The jurors asked no questions

about Snively's plan post-release, except for what Pr. Marquez's treatment

recommendations would be and whether his opinion of Snively's likelihood of

reoffending would change if he were located in a rural or an urban area. We hold that

the admission of the disputed evidence did not violate Snively's constitutional rights.

       Finally, Snively argues that RCW 71.09.060 dictates what evidence a fact finder

may consider when determining whether or not a person is likely to reoffend. The

statute reads: "[i]n 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." RCW 71.09.060(1). According to Snively, the statute allows a jury to consider



                                             13
No. 71116-4-1/14



only evidence of "voluntary treatment options," in other words, affirmative actions or

plans, not the absence of such plans. He argues that the statute, along with subsequent

case law and the comment to the Washington Pattern Jury Instructions, all preclude the

State from bringing up his lack of housing options to show dangerousness. Brief of

Appellant at 17.

       The statute does not define "placement conditions" or "voluntary treatment

options." In Post 2, the respondent's voluntary post-release treatment plans "consisted

of regular individual treatment and marital counseling," along with group therapy and

"continuing to participate in a nonviolent communications group he had joined while in

prison." 170 Wn.2d at 313. In another instance, a jury considered a respondent's intent

to enroll in a sexual deviancy plan upon release when determining whether he met the

requirements for commitment. Petention of Paschke v. State, 121 Wn. App. 614, 618,

90 P.3d 74 (2004). The comment to the 6A Washington Pattern Jury Instructions:

Civil 365.14 (WPIC) (6th ed. 2012) also suggests what settings or activities will be

considered "placement conditions" or "voluntary treatment options." The pertinent

instruction reads "[i]n 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." The comment indicates that the instruction "allows consideration of
respondent's voluntary measures to reduce his or her risk to the community and
consideration of court-ordered conditions that would exist if the SVP petition were

dismissed." jU "In general, voluntary measures include things such as respondent's
promise to engage in community treatment regardless of commitment status," and


                                            14
No. 71116-4-1/15



"'[conditions that would exist,'" are "typically pre-existing community supervision

conditions placed on respondent in connection with a prior criminal conviction." jd.

       We find Snively's attempt to classify homelessness as a proposed placement

condition or a voluntary treatment option, or a deficiency in either, unconvincing.

Snively's lack of established housing plans do not approximate any of the listed

examples of "placement conditions" or "voluntary treatment options" as contemplated by

the statute. We therefore reject his argument that the statute requires exclusion of the

evidence of his housing status.


      Affirmed.




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WE CONCUR:




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                                            15
