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    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Detention of
                                                       No. 69061-2-1
RICHARD A. RUDE,
                                                       DIVISION ONE
                    Appellant,
                                                        UNPUBLISHED OPINION



                                                        FILED: January 27, 2014


       Appelwick, J. — Rude appeals his commitment as a sexually violent predator.

The State's expert diagnosed him as suffering from paraphilia not otherwise specified
(nonconsent) and antisocial personality disorder. Rude argues that these diagnoses
violated his due process rights, because they are invalid, insufficiently precise, and not

recognized by the psychiatric profession. Rude also argues that the State's expert
testified to details of his past acts based on prejudicial hearsay and not tied to any

professional opinion. Rude further asserts that the prosecutor, in effect, told the jury
that it could convict based on any condition that predisposed him to engage in acts of

predatory violence. He contends that this constituted prosecutorial misconduct and

violated his right to a unanimous jury verdict. We affirm.
No. 69061-2-1/2




                                         FACTS


       This appeal arises from Richard Rude's involuntary commitment as a sexually

violent predator (SVP), pursuant to chapter 71.09 RCW.

       Rude has three convictions for sexually violent offenses. At 18, he forcibly raped

a 16 year old girl with another man while intoxicated. Rude and his friend took turns

holding the girl down while the other raped her.     Rude pleaded guilty to rape in the

second degree in 1981.        His 10 year prison sentence was suspended in lieu of

treatment as a sexual psychopath at Western State Hospital (WSH).

       While out of custody and awaiting admittance at WSH, Rude sexually assaulted

a woman he drove home in a taxi cab.        He pleaded guilty to attempted rape in the

second degree. The court sentenced to Rude to five years in prison, concurrent with his

prior 10-year sentence.      Both sentences were suspended on the condition that he

participate in the sexual psychopath treatment program at WSH.

       After about a year at WSH, Rude was accused of trying to force another patient

to perform oral sex on him. Rude admitted to punching the man, though all but once

denied the sexual advances.1 As a result, Rude's suspended sentence was revoked
and he was sent to prison to serve his 10 year sentence.

       In June 1994, after Rude's release from prison, he committed another rape. The

victim was in the Skagit Speedway parking lot and had lost track of her friend. Rude

offered to drive her around to look for her friend, but once she got in his truck, he sped



       1Several other participants in the WSH treatment program grilled Rude about the
allegation for three days.    Following this questioning, Rude admitted to the sexual
assault. However, at all other times Rude maintained that the complainant came on to
him.
No. 69061-2-1/3




away to a remote gravel pit. Rude made the victim take off her shirt and told her to

perform oral sex. When she refused, Rude punched her in the face. Rude then raped

her orally, vaginally, and anally.2 Rude pleaded guilty to rape in the first degree. The
court sentenced him to 194 months in prison followed by two years of community

placement.

       In August 2008, Rude's cellmate, John Frost, reported that Rude sexually

assaulted him. Frost claimed that they had an altercation that led to Rude "shadow

boxing" him. Frost tried to push Rude away, but Rude grabbed Frost, pulled Frost down

on his bed, and "shoved his fingers in [Frost's] ass." Frost struggled and eventually

kicked over Rude's television, breaking it. Rude then became angry and hit Frost in the

face. Rude was charged with an infraction for assaulting Frost.

       On August 13, 2010, the State petitioned to have Rude involuntarily committed

as a sexually violent predator, pursuant to chapter 71.09 RCW. The trial court found

probable cause to support the petition and detained Rude at the Special Commitment

Center pending trial.

       Dr. Kathleen Longwell, a clinical psychologist, evaluated Rude and testified as

the State's expert at trial. Dr. Longwell has extensive experience in the evaluation,

diagnosis, and treatment of sex offenders. To determine whether Rude met the SVP

criteria, she reviewed approximately 3,000 pages of records, including criminal records,

police reports, legal documents, medical and treatment records, previous psychological

evaluations, and prison records.    Longwell explained that these records are the kind



       2 Rude's account of the offense differed from the victim's account.
No. 69061-2-1/4




typically relied on by experts in SVP evaluations. She also conducted an in-person

interview with Rude.


       Dr. Longwell testified that these records formed the basis of her opinion that, to a

reasonable degree of psychological certainty, Rude suffers from paraphilia not

otherwise specified (NOS) (nonconsent), frotteurism, antisocial personality disorder

(ASPD), as well as alcohol and cocaine dependence in institutional remission.          She

believed that Rude experiences an

      underlying internal drive towards forcing himself on nonconsenting
      persons, the paraphilia NOS. And that part of the fuel that goes towards
      acting on that drive is both subst[ance] use, dependency, alcohol-cocaine
      dependence, and the Antisocial Personality Disorder. So it is not the
      Antisocial Personality Disorder or the substance abuse in itself that
      predisposes him to future sexually violent offenses.
She testified that these diagnoses constitute mental abnormalities, which together

cause "significant difficulties for [Rude] in controlling sexually violent behavior." Using

actuarial instruments, Dr. Longwell predicted that Rude's risk of sexual recidivism is

very high.

       In reaching this opinion, Dr. Longwell reviewed criminal records showing that, as

a juvenile, Rude pleaded guilty to making sexually obscene phone calls to women.

Rude admitted to making these harassing phone calls. Dr. Longwell also considered

Rude's juvenile conviction of indecent liberties. He pleaded guilty after reports of 20 to

30 incidents where he approached women in a parking lot and grabbed their breasts or

slapped their buttocks. Rude also admitted to approaching women in parking lots and

touching them on the posterior.
No. 69061-2-1/5




      Dr. Longwell also reviewed records indicating that Rude was detained by police

after he allegedly cornered a woman in a laundromat and she started screaming. Rude

confirmed that he was involved in an altercation in a laundromat, but explained that he

thought the woman was afraid someone was coming after her and started screaming.

In addition, Dr. Longwell examined records from WSH indicating that Rude began

having fantasies involving rape when he was an adolescent. Rude admitted in these

records that the notion of controlling a woman and seeing fear in her eyes was sexually

arousing to him. Dr. Longwell also considered Rude's convictions for sexual violence,

along with the alleged sexual assault that led to his expulsion from WSH.

      Dr. Longwell explained that the standard manual used by mental health

professionals for diagnosis is the Diagnostic and Statistical Manual of Mental Disorders,

currently in its fourth text revision (DSM or DSM-IV-TR). The current version of the
DSM was published in 2000 by the American Psychiatric Association (APA).              Dr.

Longwell acknowledged that there is disagreement among mental health professionals

regarding the diagnosis of paraphilia NOS (nonconsent).

       Dr. Christopher Fisher testified as Rude's expert psychologist. Dr. Fisher also

reviewed thousands of pages of records in evaluating Rude. He interviewed Rude and

spoke with Rude's father, wife, and daughter. He diagnosed Rude with ASPD, as well
as alcohol and substance abuse, based on his past behaviors. However, Dr. Fisher

believed that Rude's ASPD went into remission as he aged.

       Dr. Fisher also diagnosed Rude with sexual abuse of an adult. He believed that

this is not a mental illness, but rather a reason why a person might go see a

psychologist. Dr. Fisher disagreed with Dr. Longwell's diagnosis of paraphilia NOS
No. 69061-2-1/6




(nonconsent).     He described the NOS category as a "wastebasket diagnosis,"

generated primarily for purposes of insurance billing. He testified that when the third

revision of DSM was published, there was controversy as to whether rape was a

paraphilia. However, Dr. Fisher acknowledged that paraphilia NOS (nonconsent) is a

valid diagnosis that he would make in certain circumstances, specifically when there is

evidence of sexual fantasies or urges.

       Dr. Fisher also took issue with Dr. Longwell's actuarial predictions. Contrary to

Dr. Longwell, he did not believe that Rude would commitfuture acts of sexual violence.

       The jury found Rude to be a sexually violent predator beyond a reasonable

doubt. The trial court entered an order committing Rude as a sexually violent predator

under RCW 71.09.060. Rude appeals.

                                     DISCUSSION

  I.   Paraphilia NOS (nonconsent) and Antisocial Personality Disorder Diagnoses

       Rude argues that his involuntary commitment based on the diagnoses of

paraphilia NOS (nonconsent) and ASPD violates his Fourteenth Amendment right to
due process of law. He contends that these two diagnoses are overbroad, insufficiently

precise, and not accepted in the psychiatric profession. We review alleged due process

violations de novo. Post v. City of Tacoma, 167 Wn.2d 300, 308, 217 P.3d 1179 (2009).

       Civil commitment of an SVP must satisfy both statutory and constitutional

requirements. Washington defines an SVP 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 ofsexual
No. 69061-2-1/7




violence if not confined in a secure facility." RCW 71.09.020(18). "Personality disorder"

means:



      an enduring pattern of inner experience and behavior that deviates
      markedly from the expectations of the individual's culture, is pervasive and
      inflexible, has onset in adolescence or early adulthood, is stable over time
      and leads to distress or impairment. Purported evidence of a personality
      disorder must be supported by testimony of a licensed forensic
       psychologist or psychiatrist.

RCW 71.09.020(9). By contrast, "mental abnormality" is defined 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." RCW 71.09.020(8).

       Due process requires that an individual be both mentally ill and presently

dangerous before being committed indefinitely. In re Pet, of Marshall, 156 Wn.2d 150,
157, 125 P.3d 111 (2005).         Under Kansas v. Crane, evidence is constitutionally

sufficient to commit an SVP only if it is "sufficient to distinguish the dangerous sexual

offender whose serious mental illness, abnormality, or disorder subjects him to civil

commitment from the dangerous but typical recidivist convicted in an ordinary criminal

case." 534 U.S. 407, 413, 122 S. Ct. 867, 151 L. Ed. 2d 856 (2002). The Washington

Supreme Court likewise recognizes that "the jury's finding that an SVP suffers from a

mental illness, defined under our statute as a 'mental abnormality' or 'personality

disorder,' coupled with the person's history of sexually predatory acts, must support the
conclusion that the person has serious difficulty controlling behavior." In re Pet, of

Thorell, 149 Wn.2d 724, 742, 72 P.3d 708 (2003).
No. 69061-2-1/8




       However, due process safeguards in the area of involuntary commitment "are not

always best enforced through precise bright-line rules." Crane, 534 U.S. at 413. States

have considerable leeway in defining the personality disorders and mental abnormalities

that make an individual eligible for commitment, jd. And, "the science of psychiatry,

which informs but does not control ultimate legal determinations, is an ever-advancing

science, whose distinctions do not seek precisely to mirror those of the law." Id.

   A. Paraphilia NOS (nonconsent)

       Rude argues that paraphilia NOS (nonconsent) is not recognized by the

psychiatric profession or the DSM-IV-TR. He contends that it is an unreliable, invalid

diagnosis that does not distinguish him from the dangerous but typical recidivist

convicted of sexually violent offenses.      He specifically objects to the NOS and

nonconsent diagnosis.

       Despite Rude's argument, Washington courts have recognized paraphilia NOS

(nonconsent) as a valid, diagnosable disorder and upheld involuntary commitments on

that basis.   In Young, the Washington Supreme Court rejected the argument that a

diagnosis of paraphilia NOS (nonconsent) was invalid, because it did not appear in the

then-current edition of the DSM:

              "In using the concept of 'mental abnormality' the legislature has
       invoked a more generalized terminology that can cover a much larger
       variety of disorders. Some, such as the paraphilias, are covered in the
       DSM-III-R; others are not. The fact that pathologically driven rape, for
       example, is not yet listed in the DSM-III-R does not invalidate such a
       diagnosis. The DSM is, after all, an evolving and imperfect document.
       Nor is it sacrosanct. Furthermore, it is in some areas a political document
       whose diagnoses are based, in some cases, on what [APA] leaders
       consider to be practical realities. What is critical for our purposes is that
       psychiatric and psychological clinicians who testify in good faith as to



                                                8
No. 69061-2-1/9


       mental abnormality are able to identify sexual pathologies that are as real
       and meaningful as other pathologies already listed in the DSM."

In re Pers. Restraint of Young, 122 Wn.2d 1, 28, 857 P.2d 989 (1993) (emphasis in

original) (quoting Alexander D. Brooks, The Constitutionality and Morality of Civilly

Committing Violent Sexual Predators, 15 U. Puget Sound L. Rev. 709, 733 (1992)).

Thus, inclusion in the DSM is not definitive for diagnosing a mental illness.

       As recently as 2011, we also rejected the argument that paraphilia NOS

(nonconsent) is not a valid diagnosis. In re Pet, of Berry, 160 Wn. App. 374, 380-81,

248 P.3d 592, review denied, 172 Wn.2d 1005, 257 P.3d 665 (2011).               In Berry, we

noted that paraphilia NOS appears in the PSM-IV-TR. jd, at 381. The PSM-IV-TR

defines paraphilia as "recurrent, intense sexually arousing fantasies, sexual urges, or

behaviors generally involving 1) nonhuman objects, 2) the suffering or humiliation of
oneself or one's partner, or 3) children or other nonconsenting persons that occur over a

period of at least 6 months." PSM-IV-TR at 566 (emphasis added). Based on the
emphasized language, PSM-IV-TR plainly recognizes paraphilia nonconsent.               And,
paraphilia NOS is a "residual category in the DSM-III-R which encompasses both less
commonly encountered paraphilias and those not yet sufficiently described to merit
formal inclusion in the DSM-III-R." Young, 122 Wn.2d at 29. The PSM-IV-TR provides

a number of examples of paraphilia NOS,3 but clearly states that the category is not
limited to that list. PSM-IV-TR at 576. Therefore, we held in Berry that "[t]he omission




        3"Examples include, but are not limited to, telephone scatologia (obscene phone
calls), necrophilia (corpses), partialism (exclusive focus on part of body), zoophilia
(animals), coprophilia (feces), klismaphilia (enemas), and urophilia (urine)." PSM-IV-TR
at 576.
No. 69061-2-1/10




of 'nonconsent' or 'rape' from these examples does not prove it is an invalid diagnosis."

160Wn. App. at 381-82.

      The Seventh Circuit also recently held that a paraphilia NOS (nonconsent)

diagnosis did not violate an SVP's due process rights. McGee v. Bartow, 593 F.3d 556,

580-81 (7th Cir. 2010). The McGee court held that, based on United States Supreme

Court precedent, paraphilia NOS (nonconsent) "is not so unsupported by science that it

should be excluded absolutely from consideration by the trier of fact." ]cL at 580. The

court reached this conclusion primarily because of the Supreme Court's repeated

recognition that states must have appropriate room to make practical, common-sense

judgments about the evidence presented in commitment proceedings,                 jd.   The

existence of professional debate over paraphilia NOS (nonconsent) does not mean that

the diagnosis is "'too imprecise a category'" such that it runs afoul of due process. Id. at

581 (quoting Kansas v. Hendricks, 521 U.S. 346, 373, 117 S. Ct. 2072, 138 L. Ed. 2d

501 (1997) (Kennedy, J., concurring)).

       Dr. Longwell testified that Rude suffers from paraphilia NOS (nonconsent), based

on her professional opinion and her review of Rude's records. She believed that Rude's

paraphilia, combined with his ASPD and substance addiction, greatly impair his ability to

control his sexually violent behavior.       Dr. Fisher disagreed with Dr. Longwell's

diagnosis, but acknowledged that he considered paraphilia NOS (nonconsent) a valid

diagnosis in some circumstances.         Rude cross-examined Dr. Longwell about the

diagnosis and Dr. Fisher testified to its shortcomings. The controversy surrounding

paraphilia NOS (nonconsent) went to the weight of the diagnosis, not its admissibility.




                                                10
No. 69061-2-1/11




Berry, 160 Wn. App. at 382. The State's reliance on the paraphilia NOS (nonconsent)

diagnosis did not violate Rude's due process rights.

   B. Antisocial Personality Disorder

       Rude argues that commitment based on his ASPD diagnosis violates his due

process rights, because the diagnosis is too imprecise to differentiate him from the

dangerous but typical recidivist in a criminal conviction. Specifically, he refers to Dr.

Longwell's testimony that as much as 60 percent of the male prison population may

suffer from ASPD.

      Washington courts have rejected this argument. In Young, the appellants argued

that it is impermissible to civilly commit someone who has an "antisocial personality,"

because that condition is not a mental disorder.       122 Wn.2d at 37 n.12.       Unlike

"antisocial behavior," the Young court explained, ASPD is a recognized mental disorder,

id ASPD is defined in the PSM-IV-TR as "a pervasive pattern of disregard for, and

violation of, the rights of others that begins in childhood or early adolescence and

continues into adulthood." PSM-IV-TR at 701.

       Moreover, we need not decide whether Rude's diagnosis of ASPD alone suffices

for due process purposes. Brown v. Watters, 599 F.3d 602, 615 (7th Cir. 2010). Dr.

Longwell also diagnosed Rude with paraphilia, as well as alcohol and cocaine

dependence. She testified that the combination of these three mental illnesses resulted

in Rude's impaired ability to control his sexually violent behavior. Dr. Fisher likewise

diagnosed Rude with substance abuse and sexual abuse of adults.                Numerous

Washington and federal courts have upheld involuntary commitments based on the

combination of ASPD and paraphilia. See, e.g., id at 615; McGee, 593 F.3d at 559,


                                               11
No. 69061-2-1/12




581; In re Pet, of Stout, 159 Wn.2d 357, 363, 380-81, 150 P.3d 86 (2007); Berry. 160

Wn. App. at 376-77. We therefore find no due process violation based on Rude's ASPD

diagnosis.

 II.   Expert Testimony Based on Hearsay

       Rude argues that, in violation of ER 703 and ER 705, Pr. Longwell recounted

prejudicial hearsay, violating his right to a fair trial. Rude specifically objects to Pr.

Longwell's testimony about his cornering the woman in a Texas laundromat, his 1981

rape of a 16 year old girl, his conviction for second degree attempted rape, and the

reasons behind his expulsion from WSH. He argues that Pr. Longwell's recounting of

these incidents was not tied to any specific professional opinion and should not have

been admitted.

       Though Rude attempts to characterize this issue as a constitutional one, we

review a trial court's decision to admit evidence for abuse of discretion.    In re Pet, of

Coe, 175 Wn.2d 482, 492, 515, 286 P.3d 29 (2012).            Piscretion is abused if it is

exercised on untenable grounds or for untenable reasons, id at 492.

       ER 703 permits an expert to base an opinion on facts or data not otherwise

admissible if they are "of a type reasonably relied upon by experts in the particular field

in forming opinions or inferences upon the subject." A trial court may allow an expert to

reveal the underlying basis an opinion if doing so will help the jury understand the

expert's opinion. ER 705; Coe, 175 Wn.2d at 513. Such disclosure is permissible even

if the information would be inadmissible as substantive evidence. Coe. 175 Wn.2d at

513. For instance, an expert may offer an opinion based on hearsay data that would

otherwise be inadmissible. Marshall, 156 Wn.2d at 162. The trial court need only give


                                                12
No. 69061-2-1/13




an appropriate limiting instruction explaining that the jury is not to consider this revealed

information as substantive evidence. Coe, 175 Wn.2d at 513-14. However, the expert

may not simply summarize and reiterate all manner of inadmissible evidence. Marshall,

156Wn.2dat162.


       In Marshall, the State's psychologist, Pr. Amy Phenix, reviewed Marshall's

criminal and psychiatric history, including police reports, legal documents, treatment and

medical records, juvenile records, as well as psychiatric evaluations, jd at 154-55. At

the commitment trial, Pr. Phenix testified that these are the types of records that

professionals in her field rely on when evaluating potential SVPs. id at 155. She

explained that her review of these records led her to conclude that Marshall suffered

from pedophilia, sexual sadism, and paraphilia NOS (nonconsent). jd. On appeal,

Marshall argued that Pr. Phenix's testimony should have been excluded, because she

related inadmissible hearsay as factual assertions.         jd at 162.     The Washington

Supreme Court disagreed and held that Pr. Phenix's testimony was consistent with ER

705, because she discussed otherwise inadmissible testimony only to explain the basis

for her expert opinion, id at 163.

       Similarly, in Coe, Pr. Phenix disclosed 20 unadjudicated rapes to the jury in

explaining her conclusion that Coe suffered from exhibitionism and paraphilia NOS

(nonconsent, urophilia, and coprophilia).4 175 Wn.2d at 488-89, 512-13. Pr. Phenix
testified that she relied on the unadjudicated rapes in diagnosing Coe and explained




       4Such testimony is undoubtedly prejudicial. However, "[i]n assessing whether an
individual is a sexually violent predator, prior sexual history is highly probative of his or
her propensity for future violence." Young, 122 Wn.2d at 53.

                                                 13
No. 69061-2-1/14




that it is common for experts in SVP proceedings to do so. id. at 514. The Washington

Supreme Court held that the trial court did not err in allowing such testimony. ]d

       The trial court in Coe also gave an appropriate limiting instruction:

       "Pr. Phenix is about to testify regarding the factual bases of her opinion.
       You may consider this testimony only in deciding what credibility and
       weight should be given to the opinions of Pr. Phenix. You may not
       consider it as evidence that the information relied upon by the witness is
       true or that the evidence described actually occurred."

Id Citing Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476

(1968), Coe challenged the idea that a limiting instruction could ever prevent the jury

from considering the disclosed facts as evidence, jd The Bruton Court held that a jury

cannot be expected to ignore the confession of a nontestifying codefendant that

expressly implicates the defendant, jd at 514. The Coe court distinguished Bruton,

reasoning that Bruton "involves a narrow exception to the general rule that juries follow

instructions." jd at 514-15. That exception did not exist in Coe. Id at 515.

       Rude argues that the Coe court's reading of Bruton is incorrect. He contends

that Bruton does not in fact outline a narrow exception to the general presumption that

juries follow instructions, but is rather a broader recognition that a limiting instruction is a

type of placebo or "'judicial lie.'" (quoting Burton, 391 U.S. 132 n.8.) Whether or not

Rude is correct, Coe is binding precedent and controls here.

       At trial, Pr. Longwell testified that she reviewed approximately 3,000 pages of

documents, including Rude's criminal records, police reports, treatment reports, and

medical records. She acknowledged that such documents are typically relied on by

professionals in her field when evaluating potential SVPs. Indeed, Pr. Fisher relied on

the same documents in evaluating Rude.            Pr. Longwell testified that these records


                                                  14
No. 69061-2-1/15




formed the bases of her opinion that Rude suffers from paraphilia NOS, frotteurism,

ASPD, and substance dependence.

      Dr. Longwell further testified that there was minimal specific evidence of Rude's

sexual fantasies or urges, so she had to evaluate his behavior. Pattern of behavior, she

explained, is instructive in determining whether an individual has a mental disorder.

Often, SVPs deny sexual fantasies and urges, so experts "have to look at

circumstances of the offenses and the pattern of the offenses [to see] what was

propelling those offenses." Dr. Longwell opined that Rude's pattern of sexual offenses,

beginning with the juvenile convictions and escalating to first degree rape decades later,

"indicates that he took tremendous risks in committing these sex offenses. There must

have been a strong internal drive to take this kind of risk and do it repeatedly."

Furthermore, Dr. Longwell testified that all the incidents she accounted at trial showed a

pattern of nonconsensual sexual conduct.         This in turn informed her professional
opinion that Rude suffered from uncontrollable, violent sexual urges. Thus, the hearsay
evidence that Dr. Longwell recounted was clearly tied to her professional opinion of

Rude's mental illnesses. Rude's argument fails.

       Furthermore, the trial court gave an appropriate limiting instruction to the jury:

       Generally witnesses testify to only things they observe. However some
       witnesses are permitted to give their opinions in addition to their
       observations.

             In order to assist you in evaluating an opinion a witness may be
       allowed to give the basis for the opinion. In some circumstances
       testimony about basis for an opinion is not appropriate for you to consider
       for other purposes. In that instance I will call to your attention the limited
       purpose for which evidence may properly be considered. Dr. Kathleen
       Longwell is about to testify regarding information she relied on for the
       basis for her opinion. You may consider this testimony only in deciding


                                                 15
No. 69061-2-1/16


           what credibility and weight should be given to the opinions of Dr. Longwell.
           You may not consider it as evidence that the information relied upon by
           the witness is true or that events described actually occurred.

The latter portion of this instruction is almost identical to the one given in Coe and

deemed to be proper by the Washington Supreme Court.

           We hold that the trial court did not abuse its discretion in allowing disclosure of

otherwise inadmissible hearsay evidence, because Dr. Longwell used the incidents to

explain the basis for her expert opinion and the court gave an appropriate limiting

instruction.


 III.      Prosecutor's Rebuttal Argument

           Rude argues that it constituted prosecutorial misconduct and violated his right to

jury unanimity when the State told the jury in rebuttal that they could commit him if they

found beyond a reasonable doubt that he suffered from any "condition" that caused him

serious difficulty in controlling his sexually violent behavior.

        A. Prosecutorial Misconduct

           Rude argues that the State's argument "amounted to an exhortation to the jury to

commit Mr. Rude if [it] simply [was] afraid of him and believed he might reoffend," which

violated his right to due process. Rude contends that this urged the jury to ignore the

evidence and created an impermissible risk that his commitment order was not based

on mental illness, but some amorphous, undefined condition.

           Prosecutorial misconduct is grounds for reversal if the prosecutor's conduct was

both improper and prejudicial. State v. Monday, 171 Wn.2d 667, 675, 257 P.3d 551

(2011). In closing argument, the prosecutor has wide latitude in making arguments and

drawing reasonable inferences from the evidence. State v. Fisher. 165 Wn.2d 727, 747,



                                                   16
No. 69061-2-1/17




202 P.3d 937 (2009). A prosecutor is also entitled to make a fair response to the

arguments of defense counsel. State v. Russell, 125 Wn.2d 24, 87, 882 P.2d 747

(1994). A defendant suffers prejudice only when there is a substantial likelihood that

the prosecutor's conduct affected the jury's verdict. Monday, 171 Wn.2d at 675.

      We evaluate a prosecutor's conduct in the full trial context, including the

evidence presented, the total argument, the issues in the case, and the jury instructions.

]d Here, context is key. In closing, defense counsel argued that the State was required

to prove beyond a reasonable doubt that Rude suffered from paraphilia NOS:

              So even though the instructions say that a person can be a sexually
       violent predator if he suffers from a mental abnormality or personality
       disorder, in this case the evidence has shown that there's only one crime
       - one diagnosis that would really make or predispose or set anyone in
       motion to committing a sex act, and that's Paraphilia NOS.

              And that's why in this case the state needs to prove that definition --
       or not that definition -- that diagnosis beyond a reasonable doubt.
       In rebuttal, the State responded to this argument:

       I just want to get to a couple of major points, and the first being a
       misstatement of the law that Mr. Mooney gave you.

             Mr. Mooney told you that what you had to find beyond a reasonable
       doubt was that Dr. Longwell had diagnosed Mr. Rude with Paraphilia Not
       Otherwise Specified, that that diagnosis had to be found beyond a
       reasonable doubt. That's not what the law says.

Defense counsel objected, stating, "I argued the facts." The trial court overruled,
explaining, "This is a fair comment on the evidence." The State continued,
       What you have to find is that Mr. Rude has a condition, a condition that
       predisposes him. And you remember, we put the slide up with [the]
       definition of mental abnormality. The DSM, the testimony of the experts,
       the diagnoses, they're all just a guide.




                                                17
No. 69061-2-1/18




Defense counsel objected again and the court excused the jury to consider the

objection.

       During recess, defense counsel argued that the State was essentially telling the

jury to make up its own mental abnormality, violating United States Supreme Court

precedent. The State explained that its argument was that the jury is

       required to find by statute a mental abnormality, it is defined, and they can
       use the evidence that was presented by anybody to determine if it's met
       that definition. They can give the DSM, you know, the credibility as a
       learned treatise, they can follow what Mr. Mooney is telling them and
       disregard it.

After argument, the court noted the objection and ordered the State to proceed with

rebuttal.

       The State resumed its rebuttal argument:

             But what you're asked to find in this case is, does Mr. Rude have a
       mental abnormality as defined by the statute? You heard a lot of debate
       over what are the criteria for the diagnosis that Dr. Longwell made, but
       what you didn't hear any debate over is that there are individuals out
       there, there are individuals out there who have a paraphilic interest in
        rape.

             Is there controversy over this issue? Sure. But you weigh the
       evidence credibility of the experts. You weigh the testimony, and you
       determine what decision you make in this case.

       The State's rebuttal argument was a correct statement of the law, as set forth in

the jury instructions. The jury instructions required the State to prove that "Richard
Rude suffers from a mental abnormality or a personality disorder, which causes serious

difficulty in controlling his sexually violent behavior." The instructions further mandated
that the State prove that "this mental abnormality or personality disorder makes Richard
Rude likely to engage in predatory acts of sexual violence if not confined to a secure



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facility." Defense counsel's closing argument advocated a different standard and urged

the jury to ignore these instructions. The State's rebuttal was a fair response to that

argument and properly stated the law.       Moreover, Dr. Longwell testified that both

paraphilia and ASDP independently constitute mental abnormalities, which combine to

impair Rude's control of his sexually violent behavior.     The State drew reasonable

inferences from this testimony to rebut defense counsel's argument.

       The State also did not encourage the jury to find that Rude had some amorphous

condition.   Rather, the State correctly reminded the jurors that they must apply the

statutory definition of mental abnormality.       The jury instructions defined mental

abnormality in the language of the statute as "a congenital or acquired condition

affecting the emotional or volitional capacity which predisposes the person to commit

criminal sexual acts to a degree that makes the person a menace to the health and

safety of others." RCW 71.09.020(8). The State continually tied the word "condition"

back to this definition.5 The State did not encourage the jurors to ignore the evidence,

but rather weigh it and decide for themselves whether Rude suffered from a mental

abnormality based on the evidence presented. The State's rebuttal argument was not

improper, and therefore does not constitute prosecutorial misconduct.


       5 Moreover, these instructions comport with United States Supreme Court
precedent, which holds:
       It is enough to say that there must be proof of serious difficulty in
       controlling behavior. And this, when viewed in light of such features of the
       case as the nature of the psychiatric diagnosis, and the severity of the
       mental abnormality itself, must be sufficient to distinguish the dangerous
       sexual offender whose serious mental illness, abnormality, or disorder
       subjects him to civil commitment from the dangerous but typical recidivist
       convicted in an ordinary criminal case.
Crane, 534 U.S. at 413.



                                                 19
No. 69061-2-1/20




   B. Jury Unanimity

         Rude argues that although the State presented substantial evidence of his

paraphilia NOS, ASPD, and substance abuse, the State did not prove that ASPD or

substance abuse alone predisposed him to have difficulty controlling his sexually violent

behavior. He contends that, because the State failed to prove these alternative means,

his right to a unanimous jury verdict was violated.

         However, Rude misconstrues the nature of these alternative means.         He is

correct that jury unanimity is required in SVP commitment proceedings. In re Pet, of

Halgren, 156 Wn.2d 795, 807-08, 132 P.3d 714 (2006). And, an SVP determination

may be accomplished by alternative means: "mental abnormality" and "personality

disorder" are two distinct means of establishing the mental illness element in SVP

cases,    jd. at 810.   Contrary to Rude's argument, however, these two means "may

operate independently or may work in conjunction ... the mental illnesses are not

repugnant of each other and may inhere in the same transaction."          ]d (emphasis

added).     The combined effect of these two mental illnesses may then satisfy the

requirement that the "person is likely to engage in predatory acts of sexual violence if

not confined in a secure facility." RCW 71.09.020(18); see Halgren. 156 Wn.2d at 810.

         In other words, when the State alleges both alternative means, it does not need

to establish that a personality disorder and a mental abnormality each independently

predispose the individual to sexual violence. Rather, the State needs to prove that the

individual suffers both a personality disorder and a mental abnormality. The State may

then show that the combined effect of these two mental illnesses predisposes the

individual to sexual violence. This is precisely what the State did here. Dr. Longwell


                                                20
No. 69061-2-1/21




testified that she believed that Rude's paraphilia, ASPD, and substance abuse

combined to impair his ability to control his sexually violent behavior.

       Thus, we need only consider whether the State presented sufficient evidence for

a reasonable jury to conclude beyond a reasonable doubt that Rude had both a mental

abnormality and a personality disorder.      See Halgren, 156 Wn.2d at 811-12.   Rude

concedes, and we agree, that the State presented substantial evidence of his

paraphilia, ASPD, and substance abuse. Br. of Appellant, 41. Therefore, our inquiry is

at an end.


       We affirm.




WE CONCUR:




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