                                                                              LrFD
                                                                     COUNT CAF APPEALS
                                                                          DIVISION 11

                                                                    2013 APR -2 AM 8' 51
          IN THE COURT OF APPEALS OF THE STATE OF WAS                                        N
                                                                               HIl
                                                                     STATE OF WASH!
                                              DIVISION II
                                                                     BY
                                                                             GE   TY
In   re   Detention of:                                             No. 43651 5 II
                                                                              - -


AUSAGETALITAMA FAGA,

                                Petitioner.


                                                               UNPUBLISHED OPINION




            PENOYAR J. —     Ausagetalitama Faga appeals his pretrial confinement as a sexually

violent predator, arguing that the trial court violated his right to present telephonic testimony as

part of a contested probable cause hearing. We agree and reverse and remand.'
                                                    FACTS


            Faga was convicted of first degree rape in 1998 and sentenced to 171 months'

incarceration. Faga was due to be released on April 26, 2012, but on April 24, the State filed a

petition seeking the involuntary civil commitment of Faga as a sexually violent predator.
                                                                                                 Dr.
            In   support of the petition, the State submitted Dr. Harry Hoberman's report.

Hoberman concluded that Faga met the definition of a sexually violent predator. He opined that

Faga suffers from antisocial personality disorder and psychopathy, which make him more

probable than not to engage in predatory acts of sexual violence if not confined in a secure

facility.

            Faga filed a motion to dismiss the petition. In support of his motion, Faga submitted Dr.

Joseph Plaud's declaration. Dr. Plaud challenged Dr. Hoberman's use of three tests, the Static-
99, MnSOST R,and SORAG, to evaluate Faga's risk of reoffending. He stated that the Static-
           -

     A commissioner of this court initially considered this appeal as a motion on the merits under
RAP 18. 4 and then referred it to
      1                               a   panel   of judges.
43651 5 II
      - -



99 and MnSOST R are now disfavored actuarial tools for evaluating sex offenders, and that the
              -

SORAG overpredicts for future risk of sexually offending because it is designed to evaluate the

risk of violent reoffending generally.

        On June 11, 2012, the trial court held a contested probable cause hearing. Faga sought to

present Dr. Plaud's telephonic testimony. The trial court denied his request, stating that it

considered the telephonic testimony " waste of time"because "even if t[he doctors] testified by
                                    a

telephone, Dr. Plaud      and Dr. Hoberman   are   not   going   to say   anything different ...."   Report of

Proceedings ( RP) at 19. It concluded that Hoberman's report satisfied the State's burden of

presenting prima facie evidence that Faga meets the definition of a sexually violent predator.
The trial court.signed an order affirming the existence of probable cause. Faga filed a motion for

discretionary review, which a commissioner of our court granted. RAP 2. (
                                                                     b).
                                                                      3
                                              ANALYSIS


        Faga argues that the trial court violated former RCW 71. 9.
                                                             040(
                                                                3 which
                                                                0 ), provides that

the respondent "shall"have the right to present evidence at a probable cause hearing and "must"

permit telephonic testimony. The State concedes that "[ ecause the statute expressly provides
                                                     b]
for the presentation of evidence by telephone, the court should have allowed [Faga] to present

the testimony of Dr.Plaud, to the extent such testimony was otherwise admissible."Resp't'
                                                                                  s Br.
at 6.


        We review the trial court's decisions to admit or exclude evidence to determine whether

the decision   was    manifestly unreasonable or based on untenable grounds or reasons. In re Det.

of Coe, 160 Wn. App. 809, 817, 250 P. d 1056 (2011), d,175 Wn. d 482 (2012);
                                    3              aff'      2             State ex
rel. Carroll   v.   Junker, 79 Wn. d 12, 26, 482 P. d 775 (1971).
                                 2                2
43651 5 II
      - -



        After the State files a petition to civilly commit an individual under chapter 71. 9 RCW,
                                                                                         0

a judge must make a preliminary determination as to whether probable cause exists that the
individual meets the    statutory definition of    a   sexually   violent   predator.   Former   RCW


040(
71. 9.2009). If the judge determines that probable cause exists that the individual is a
   1
   0 ) (

sexually violent predator, he or she may be taken into custody. Former RCW 71. 9.The
                                                                           040(
                                                                              1
                                                                              0 ).

individual is then entitled to a contested probable cause hearing within seventy two hours of the
                                                                                  -

judge's preliminary, ex parte, finding of probable cause. Former RCW 71. 9: At the
                                                                     040(
                                                                        2
                                                                        0 ).

contested probable cause hearing, the individual " hall have the following rights ":
                                                 s

        a) be represented by counsel; b) present evidence on his or her behalf; c)
          To                          ( to                                      (
        to cross -examine witnesses who testify against him or her; d) view and copy
                                                                    ( to
        all petitions and reports in the court file. The court must permit a witness called
        by either party to testify by telephone.

Former RCW      71. 9.emphasis added). Former RCW 71. 9.therefore, granted
                040(
                   3
                   0 ) (                          040(
                                                     3
                                                     0 ),

Faga the " ight"to present Dr.Plaud's telephonic testimony on his behalf.
         r

        The State nevertheless urges us to affirm because the trial court concluded that Dr.

Plaud's testimony was " nnecessary" and Faga failed to "correct the court's assumption_or make
                      u

any offer of           s Br.
               proof." Resp't' at        6.   Our review of the probable cause hearing, however,

shows that Faga both objected to the trial court's decision to proceed without Dr. Plaud's

testimony and attempted to summarize the substance of the testimony for the.court. When Faga

sought to have Dr. Plaud testify, the State took the position that Dr. Plaud's testimony was

irrelevant"because Dr. Hoberman's report satisfied the requirement that it present prima facie


2
    RCW 71. 9.was amended to grant a detainee the right to a contested probable cause
        040
          0
hearing after our Supreme Court ruled in In re Detention of Young, 122 Wn. d 1, 45 46, 857
                                                                          2         -
P. d 989 (1993), sex offenders had due process and equal protection rights to appear " efore
  2              that                                                                 b
the court to contest detention in any civil commitment proceeding,"including probable cause
hearings.
                                                   3
43651 5 II
      - -



proof that Faga satisfied the sexually violent predator definition and the court was not allowed to
weigh    evidence in    a   probable   cause   hearing.   Faga . disagreed with the State's position,

referencing former RCW 71. 9.
                       040.
                         0                     Faga also stated that "the testimony that I would be

presenting from Dr.Plaud is as to whether the report that Dr.Hoberman filed and the methods he
used ... [   interrupted by follow up question from court]." at 18.
                                   -                      RP

         We hold that by refusing to allow Faga to present testimony, the trial court failed to

follow the required probable cause hearing procedure set out in former RCW 71. 9.
                                                                           040(
                                                                              3
                                                                              0 ).

Accordingly, we reverse and remand for further proceedings consistent with this opinion.

         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
040,
2.6.it is so ordered.
 0




We concur:




         Johanson, J.
0.


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