                                                                                                         COURT OF APPEALS
                                                                                                               DiVISMIN I1
                                                                                                       20111 AUG 12 Pt 12:   5
                                                                                                       STh          ATO




     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                   DIVISION II

IN RE DETENTION OF                                                                  No. 44137 -3 -II


                              MORGAN A. HEATH.
                                                                          UNPUBLISHED OPINION




        HUNT, J. —          Morgan A. Heath appeals the trial court' s order for civil commitment as a

                                                                      RCW1.


sexually     violent predator (    SVP)    under chapter     71. 09             He argues that the trial court ( 1)


abused its discretion in denying his motion for mistrial based on juror misconduct; and ( 2)

violated his right to a unanimous jury verdict ( a) in failing to instruct the jury that it must be

unanimous about the underlying reason for its finding him likely to reoffend and ( b) because the

State failed to offer sufficient evidence to prove that Heath suffered from a mental abnormality

or specific personality disorder that would make him likely to reoffend. We affirm.

                                                          FACTS


                                                   I. BACKGROUND


        In 2003, Morgan A. Heath molested a two -year -old girl, the daughter of his father' s

girlfriend,    four   or   five times   over a   few   months;   Heath   was   14   years old at   the time.   Based on


these acts, Heath pled guilty to first degree rape of a child and was sentenced to Juvenile
1"
  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."    RCW 71. 09. 020( 18).
No. 44137 -3 -II




Rehabilitation Administration ( JRA) for           a period of          15 to 36   weeks.   After completing his JRA

sentence, Heath was released on community supervision.

         Heath violated the terms of his community supervision by committing theft and false

reporting in 2004.            Between December" 2004                 and   August 2006, Heath was convicted for


assaulting his    girlfriends;     thereafter, Heath       violated no- contact orders        for these   girlfriends.      In


January 2007, Heath was charged with failure to register as a sex offender between November 26

and December 14, 2006; he pled guilty, was sentenced to jail for 45 days, and was put under the

supervision of a      community      corrections officer ( CCO),           Nancy Jo Nelson, for 12 months. In July

2007, Heath was again arrested for failure to register as a sex offender and for various violations

of   his community       supervision conditions,       including        contact with a minor child.           In April 2008,


Heath was arrested, and released, for third degree malicious mischief for beating in the windows

of his girlfriend' s car.


         In   July,   while " released   to the community,"           Heath took a job working at a carnival, which

violated   his   release     condition not   to be in the        presence     of minors;    he    was   again   arrested.    3


Verbatim Report         of   Proceedings ( VRP)   at   249.      When he was released from custody on August

9, Heath walked to a festival where he interacted with an eight -
                                                                year -old boy, put the boy on a

horse,   and started     leading   the horse    out of     the   park.     Heath    was   again   arrested.     Shortly after
                                                           GPS2

Heath'   s release    from jail, Nelson   put   him   on              monitoring.


         In June 2009, Heath was jailed for 61 days for living in an unauthorized location and for

going to a mall, where he could pick up young teenage girls, in violation of his community




2"
     Global   Positioning     System" ( GPS). 2 VRP at 133.



                                                                 2
No. 44137 -3 - II



supervision conditions. In November, Heath was again charged with failure to register and jailed


for about 90 days. He was released in February 2010 and again put on GPS monitoring.

             Shortly after his release, Heath began violating his community supervision conditions

again.       Nelson had told Heath he could not stay with his friend, Tammy Brown and her two

children, one         13    years   old       and    the    other      12       years   old.   But Heath stayed at Brown' s house


without informing Nelson; instead, when Nelson called Brown, she lied to Nelson about where

he    was    living. There, he had multiple contacts with multiple children, including a 17- year -old

girl,    eight     to ten    other   children          at       Brown'      s    apartment     complex     playground,        a 10- year -
                                                                                                                                         old


developmentally disabled girl, and three other minor children. While playing with children at the

playground,         Heath    gave    them "         piggyback rides ";               made sexual innuendos to them; and, when a


dog started " humping" Heath' s leg, told the children to get down on their hands and knees to
mimic        the   dog' s   behavior.         3 VRP        at   253.    When Nelson learned that Heath was staying with

Brown and her children, she arrested him for several community supervision violations.

             Nelson then learned that also in February 2010, Heath had sexually assaulted two 13-
                                          3
     old girls,
year -                 JR    and    AC,       one of whom              had been staying          at    Brown'   s   house.   Based on these


acts, Heath pled guilty to attempted communication with a minor for immoral purposes and

fourth degree         assault with a special                allegation of sexual motivation.                    He was sentenced to 214


days in JRA, to run concurrently with his previous sentence, followed by a two -year probation;

the court also issued a no contact order with JR or AC.




3
     It is   appropriate     to   provide some             confidentiality in this             case.    Accordingly, we use initials to
identify the juveniles involved.

                                                                                 3
No. 44137 -3 - II



                                                      II. PROCEDURE


         On August 30, 2010, while Heath was still incarcerated, the State filed a petition to

commit       Heath   as   a   sexually    violent   predator (     SVP)       under     RCW 71. 09    et   seq.     The case


proceeded to a jury trial.

                                                         A. Trial


                                     1.    CCO Nancy Jo Nelson' s testimony

         Heath' s CCO, Nancy Jo Nelson, testified that she had supervised Heath from February

2007 until he went to the Special Commitment Center ( SCC) in 2010. Nelson described Heath' s

multiple violations of his conditions of release as previously set forth. Because Heath was again

incarcerated,    she      would   continue      supervising him      on       community custody        after "    he' s finally

released again."        2 VRP at 155.


                                  2. Psychologist Dr. Amy Phenix' s testimony

         Clinical    psychologist         Dr.   Amy    Phenix testified that            on   August   10, 2010,      she had


conducted an initial evaluation of Heath to determine whether he had a mental abnormality that

predisposed      him to committing future              criminal     sexual      acts.    Dr. Phenix relied on Heath' s


criminal legal records, parole violation reports, police reports, charging documents, conviction

documents; juvenile custody documents,                   and   Heath'     s    treatment documents.          She explained


Heath'   s   criminal     behavior   as    previously described.          Pertinent facts leading to Dr. Phenix' s

 diagnoses were Heath' s pattern and duration of behavior toward prepubescent children, including

his reported sexual fondling of a four to five -
                                               year -old child when he was 14; sexual molestation,

 including penetration, of a two -year -old girl with whom he admitted to being sexually interested;

 and his masturbating to ongoing sexual fantasies about the two -year — girl even during his
                                                                      old


                                                               4
No. 44137 -3 - II




period of treatment. Dr. Phenix diagnosed Heath with pedophilia, a mental abnormality, and two

personality disorders—          antisocial personality disorder and borderline personality disorder.

                                                            a. Pedophilia


         Dr. Phenix          explained    that    in    diagnosing      a   person    with    pedophilia4, she looked for


individuals reporting abnormal sexual fantasies about children, generally age 13 years and

younger.     She had studied Heath' s behavioral pattern since he raped the two- year -old when he

was    14- years    -old.    She also considered Heath' s subsequent violations of community release

conditions   that had involved seeking             out and     being    in the   presence of children: (        1) After Heath' s


July 2008 release from custody back into the community, he had violated his release condition

not   to be in the    presence of children, when              he   worked at a carnival; (          2) Heath had put an eight-


                            horse                 leading      the horse              the           festival   a month   later; ( 3)
year -old   boy     on a            and started                             out of           park




Heath had spent the night with a friend who had a two -year -old child, deliberately putting

himself in      a   high -
                         risk   situation; (   4) Heath       viewed     pornography; ( 5) Heath had moved in with


Brown,      who     had   minor children; (      6) Heath had given piggyback rides to children and induced


them to mimic a dog' s " humping behavior "5 while playing with the children at a playground in
2010;   and (   7) Heath had forced        sexual acts with         two 13-      year -old   females in 2010. Based on her




4
    The State offered for the jury' s consideration the Diagnostic and Statistical Manual of Mental
Disorders ( 4th       rev. ed.      2000) ( DSM        or           TR) definition
                                                            DSM- IV -                        of " pedophilia,"    exhibit    21.   3
VRP at 239. The DSM is an American Psychiatric Association publication that provides criteria
for the classification of mental disorders. commonly used by mental health professionals to
 determine a patient' s diagnosis.


 5 3 VRP at 253.



                                                                    5
No. 44137 -3 -II




evaluation, Dr. Phenix concluded " to a reasonable degree of psychological certainty" that Heath

had pedophilia. 3 VRP at 256.


                                       b. Antisocial personality disorder

         Dr. Phenix     explained    that   an   individual has       antisocial   personality disorder6 when he or


she violates the rights of others, engages in criminal behaviors, and is generally associated with

jail terms, going to      prison, and   incarceration for       criminal       behavior.   Dr. Phenix also explained


that personality disorders can " further sex offending" because such individuals tend to disregard

the law. 3 VRP at 258.


         Dr. Phenix diagnosed Heath with antisocial personality disorder because of his repeated

failures to   conform     to   social norms with     lawful behaviors: ( 1) Heath was engaged in a number


of   domestic   violence   incidents   with various girlfriends; (        2) Heath had been in and out of custody

since   the age of 14; (   3) Heath had a striking lack of compliance with community supervision or

parole; (   4) Heath   exhibited     deceitfulness     by denying        his   criminal    sexual   behavior; ( 5) Heath


demonstrated significant impulsivity and an inability to consider the consequences of his

behaviors, such as molesting his father' s girlfriend' s two- year -old daughter; and ( 6) Heath' s

uncontrolled violent tendencies resulted in his engaging in fights with teachers and peers in

school and being aggressive to his peers in juvenile custody.
                                                                                                                      7,
          Dr. Phenix      also   assessed   Heath     on   a   Hare   Psychopathy Checklist- Revised ( PCL -
                                                                                                           R)


through     a series of   interviews    and review of past records.             Heath scored a 33 out of 40 on the




6 The State also offered the DSM definition of "antisocial personality disorder" as an illustrative
exhibit for the jury. 3 VRP at 257.
7
    The State introduced the PCL -
                                 R          as an   illustrative   exhibit.
No. 44137 -3 -II



    R, in the high
PCL -                      range;    this high    score   signaled    to Dr. Phenix that Heath ( 1)          had a high


psychopathy, ( 2) had       a stronger     than   average      propensity for     violent   behavior in the future, ( 3)


would likely engage in future violations of community supervision and a greater than average

amount of future sexual criminal behavior, and ( 4) suffered from a pervasive and " particularly

severe" form of antisocial personality disorder. 3 VRP at 271.

                                        c. Borderline personality disorder
                                                                                                       8
        Dr. Phenix     also       diagnosed Heath       with   borderline personality disorder.            She explained


that, unlike antisocial personality disorder, borderline personality disorder focuses more on

maladaptive relationships with others and involves an impaired ability to develop and to

maintain   close   friendships       and   intimate   relationships.     3 VRP       at    272.   Dr. Phenix found that


Heath had traits of borderline personality disorder, including lengthy histories of troubled

relationships, such as (     1)    abandonment     by   his   mother; ( 2)   " clingy "9   behavior with his girlfriends,

which   led to   arrests   for stalking; ( 3) physically assaulting his           girlfriends; (   4) impulsive behavior


and alcohol abuse; (       5) suicidal behaviors, a common symptom of borderline personality disorder;

and ( 6) mood instability. Dr. Phenix opined that although borderline personality disorder did not

have " the strongest relationship" in this case, it was likely to lead to inappropriate sexual activity

because it affects. Heath' s choice -making and the persons with whom he interacts. 3 VRP at 276.

Dr. Phenix reiterated that she had diagnosed Heath with both antisocial personality disorder and

borderline personality disorder.


8 The State introduced the definition of "borderline personality disorder" from the DSM -IV -
                                                                                            TR
as an illustrative exhibit for the jury. 3 VRP at 271.

9 3 VRP at 273.



                                                                7
No. 44137 -3 - II



                                                  d. " Mental abnormality"

                                                                                                       10
             Dr. Phenix then         opined    about   Heath'   s"       mental   abnormality. "                 3 VRP    at   277.        She


explained that " mental abnormality" is a condition that affects either the volitional or emotional

capacity      of a person,     for   example,    predisposing        a person      to   act out   in   criminal sexual ways.                 3


VRP     at    279.    Dr. Phenix opined that Heath' s pedophilia constituted a mental abnormality that

affected      his   emotional    capacity:      For example, when Heath tried to engage in sexual intercourse


with    the two -    old, he
                year -                penetrated      her;   and when she          screamed,      he    said, "     If you don' t stop

screaming, I         will push   it in farther,"      demonstrating that Heath could not appreciate the pain he

caused       to   others.   3 VRP at 279. Dr. Phenix also opined that ( 1) Heath' s pedophilia predisposed

him to       commit criminal sexual acts          that   menaced         the health     and   safety   of others; (      2) Heath had a


mental abnormality to a reasonable degree of psychological certainty; and ( 3) Heath had serious

difficulty controlling his sexually violent behavior, to which his personality disorders also
contributed.




             Dr. Phenix further testified that Heath had                  reoffended      in 2010, " has not been out in the


                    since   that time,"   and   had    not completed        treatment.        3 VRP         at   310.   Dr. Phenix also
community


considered how safe Heath would be in the community " should he be released" and that Heath

had    about a year and a        half left    of parole or   community         supervision " once            he'   s released."       3 VRP


at    311.    Dr. Phenix opined that Heath was not " safe to be released to the community until he has

 sufficient       treatment and demonstrated that he            can       comply   with conditions."               3 VRP       at   312.   Dr.




 1°
      The State offered the definition of "mental abnormality" as an illustrative exhibit for the jury.
 3 VRP at 277.



                                                                     8
No. 44137 -3 - II




Phenix concluded that Heath is a high risk sex offender and that he should remain confined for

treatment. 3 VRP at 313.


                                                        B. Motion for Mistrial


             Juror 9 wrote the following note to the trial court one day after trial proceedings:

              A] t 4: 20    pm we as      jurors   were    wanting to leave in jury          room. [      A] jur[ or] said " Is
             he incarcerated         now ?" a couple          jur[ ors]   said yes.    One jur[ or] was talking to a
             friend jur[ or].       She stated something like this may not be exact words " yes he is."
             I ...    looked to see where he was on the internet and the other jur[ or] said " where
             is he." . She shook her head but I did not hear what she said.


Clerk'   s   Papers ( CP)      at   863.    The next day, the trial court held a hearing to address Juror 9' s note.

Heath    moved         for   mistrial     based    on possible      juror      misconduct.        The trial court opined that the


prejudice was not great enough to declare a mistrial and suggested bringing the jury in to

question        them    individually. The trial court then spoke with Juror 9, who said she had not told

anyone        she    had     sent   the   note   to the    court.       The trial    court   said    it   was "   going to keep this

anonymous            from    the other     jurors."       4 VRP    at   325.    Next, the trial court called the other jurors


individually to ask whether there had been any discussion about a juror' s looking up Heath on
the internet.          All the jurors       responded         in the    negative.     Juror 11, who had allegedly done an

internet search for Heath, told the court that ( 1) she had used the Kitsap County website for work

but had        not   looked up anything            about   Heath; ( 2)        she had told Juror 8 about having been on the

Kitsap County website, which she used for work on a daily basis, hence chancing upon Heath' s

name; and ( 3) knowing Heath' s name showed up on the Kitsap County website would not have
impaired her ability to hear the                   case   fairly. Juror 8 reported that ( 1) he did not hear any jurors

talk   about         looking   up Heath       on    the internet; ( 2) "        somebody said something about they were

                           whether. or not         he   was   incarcerated," 4 VRP           at   348;    and (   3)   such information
 wondering ...




                                                                          9
No. 44137 -3 -II




would   not   impact his ability to           serve   as   a   juror because he "         would       assume     most people       are



incarcerated if     they   are   in this   situation."      4 VRP      at   348.   Juror 13 did not hear anything about

Heath or anyone talk about searching the internet, but someone had commented about Dr.

Phenix' s " articulating" speech. 4 VRP at 332.

         The trial     court       decided    not   to     declare     a    mistrial    because ( 1)       the fact of Heath' s


incarceration was well known to the jury panel; and ( 2) reinstruction of the jury was sufficient to

take   care   of   the issue.       Heath' s incarceration since February 2010 had come to the jury' s

attention in many different ways, and there had been no motions in limine to keep such

information from the        jury. The trial court also noted that Juror 11 was very clear that she had

merely made a remark or mention about Heath' s possible incarceration and that there had been
no   discussion beyond that          remark.      Juror 8 similarly reported that there had been no discussion

about Heath' s incarceration and that it had been a passing remark.

         The trial court again called Juror 13 to clarify the comment about Dr. Phenix; Juror 13

responded     there   had been       a comment about           Dr. Phenix'      s speech       being "   so articulated,"    but she


 Juror 13) had heard nothing              about   incarceration. 4 VRP             at   355.    Heath argued that the juror' s


comment about         Dr. Phenix'     s   being   articulate    was    a comment on            the   evidence.     Disagreeing, the

trial court   ruled    that ( 1)    the comment about Dr. Phenix' s speech was not a comment on the


evidence or her credibility, but rather about how Dr. Phenix had appeared to the jury; and ( 2)

such a comment        did   not rise      to the level   of unfair prejudice           that   would    taint the   jury   panel.   The




                                                                  10
No. 44137 -3 -II


                                                                                                     11

trial   court   then    brought in the         entire   jury,    read     them the "   fair trial"        instruction again, and


reminded them not to talk or research outside the courtroom. 4 VRP at 365.


                                            C. Post mistrial motion trial testimony

          After the trial court denied Heath' s motion for a mistrial, the trial testimony resumed.

                                                                1.   Heath


          Heath testified that his half brothers had molested him when he was six years old. Heath

described his feelings toward his                  molestation of         the two -year -old girl as "     nightmares"     and not




 fantasies."      5 VRP        at   467.    Concerning his sexual assaults of the two 13- year — girls, Heath
                                                                                               old

explained that he had taken an Alford plea12 because he did not think a jury would believe he was

innocent, even though the              assaults were "     something [ he] didn' t do."          5 VRP       at   472.   As for the


2004 assault of his ex- girlfriend, Heath stated that although he had pushed her into a car, he did

not mean        to do    so.    With respect to his 2005 assault of another ex- girlfriend, Heath denied


having tackled her in the school parking lot, even though he had pled guilty. Heath also admitted

he    worked at    the   carnival      in   July   2008.   He also explained that he had been incarcerated at the


SCC " for       a while now."        5 VRP at 471.




 11 The instruction stated, in pertinent part:
         It is essential for a fair trial that everything you learn about this case comes to you
         in this courtroom, and only in this courtroom.              There should not be any
         discussions    about   anything     about the   case  with  any fellow jurors, family
           members, or friends until you are released from that instruction.

           Until you are dismissed, again, at the end of the trial, you must avoid any outside
           sources such as newspapers, magazines, blogs, the Internet, or radio or television
           broadcasts.
 4 VRP at 365

 12
      North Carolina v. Alford, 400 U. S. 25, 37, 91 S. Ct.. 160, 27 L. Ed. 2d 162 ( 1970).


                                                                     11
No. 44137 -3 - II



                                                   2. Dr. Luis Rosell


         Dr. Luis Rose11, a psychologist, testified on behalf of Heath, and stated that he did not

agree with Dr. Phenix' s diagnosis of pedophilia and Dr. Phenix' s opinion that Heath was likely

to   reoffend.   Dr. Rosell opined that Heath' s sexual assault of the 13 -year -olds should not have

been considered in Heath' s pedophilia diagnosis because their statements were inconsistent. Dr.


Rose11 did, however, diagnose Heath with antisocial personality disorder.

                                                            3. AC


         AC testified that around February 2010, when she had stayed at Brown' s house, Heath

had sat on a couch next to her, pinned her down, kissed her, and raped her.


                                                   D. Jury Instructions

         When the trial court discussed the parties' proposed jury instructions, Heath requested a

Petrich13 instruction; the State objected that such instruction was neither appropriate nor required


in SVP     cases.    Heath told the trial           court   to " take [ his Petrich instruction   request]   under




advisement."      6 VRP   at   647. The State told the trial court that it had found a case, In re Det. of


Halgren, 156 Wn.2d 795, 807, 132 P. 3d 714 ( 2006), which stood for the proposition that it was


inappropriate in SVP      cases    to   give   a   Petrich instruction.   Heath did   not object.   And the trial


court proceeded, without giving a Petrich instruction.

          The jury found that the State had proved beyond a reasonable doubt that Heath was a

SVP. Heath appeals.




 13 State v. Petrich, 101 Wn.2d 566, 572, 683 P. 2d 173 ( 1984).


                                                              12
No. 44137 -3 -II



                                                           ANALYSIS


                                                    I. JUROR MISCONDUCT


         Heath argues that repeated instances of juror misconduct violated his right to a fair trial.

Heath specifically          asserts       that the jurors      engaged         in   misconduct       by (   1)    gathering extrinsic


evidence      of   Heath' s incarceration         and    presenting it to the          other   jurors; ( 2)       lying about having

discussed Heath' s incarceration; (              3) ignoring the trial court' s instruction not to discuss the case

or evidence until deliberations; and ( 4) expressing praise for Dr. Phenix before Heath cross -

examined her, and before deliberations, which conduct we should presume was prejudicial.


Even assuming, without deciding, that the jury engaged in misconduct, the misconduct that

Heath asserts does not warrant a new trial.


          A trial court' s decision to deny or grant a motion for mistrial is a matter addressed to the

sound discretion of the trial court, which we review for abuse of discretion. State v. Tigano, 63

Wn.     App.   336, 342, 818 P. 2d 1369 ( 1991),               review     denied, 118 Wn.2d 1021 ( 1992). A trial court


abuses its discretion when it acts on untenable grounds or its ruling is manifestly unreasonable.

State   v.   Barnes, 85 Wn.          App. 638, 669,        932 P. 2d 669,           review   denied, 133 Wn.2d 1021 ( 1997).


Litigants      are   entitled   to    a    fair trial,   not   a   perfect     one.    McDonough Power                Equip.,   Inc. v.


Greenwood, 464 U. S. 548, 553, 104 S. Ct. 845, 78 L. Ed. 2d 663 ( 1984).                                         As a general rule, an


appellate court       is   reluctant      to inquire into how       a   jury   arrived at    its   verdict.      State v. Balisok, 123


 Wn. 2d 114, 117, 866 P. 2d 631 ( 1994).                   Courts grant a new trial only where juror misconduct1141



 14 The introduction of extrinsic evidence by a juror to fellow jurors is juror misconduct and can
 be grounds for a new trial. Balisok, 123 Wn.2d at 118. Extrinsic evidence is information, oral or
 documented, that is outside all the evidence admitted at trial. Balisok, 123 Wn.2d at 118.



                                                                     13
No. 44137 -3 - II



has prejudiced the defendant. State v Earl, 142 Wn. App. 768, 774, 177 P. 3d 132, review denied,

164 Wn.2d 1027 ( 2008);                     see also      CrR 7. 5(    a) (   new trial warranted only where a " substantial right


of the defendant was materially affected[.] ").

                Heath argues that jury misconduct is presumed prejudicial and that the State failed to

prove, beyond a reasonable doubt, that the misconduct could not have affected the jury' s verdict.

We may presume prejudice on a showing of misconduct; but such a presumption can be

overcome by " an adequate showing that the misconduct did not affect the [ jury' s] deliberations."

State      v.   Depaz, 165 Wn.2d 842, 856, 204 P. 3d 217 ( 2009).                              Here, regardless of whether prejudice


is presumed in theory, the alleged misconduct could not have affected the jury' s verdict.

                First, contrary to Heath' s                      assertion,    Juror   11' s internet information about Heath' s


incarceration was not " extrinsic evidence" because the jury had already heard other evidence of
                                                                 15
Heath'      s     incarceration            during       tria1.        Balisok,       123    Wn.2d     at   118 ( extrinsic   evidence   is


information           outside all          the   evidence         admitted at     trial);   Meerdink v. Krieger, 15 Wn. App. 540,

546, 550 P. 2d 42,               review       denied, 87 Wn.2d 1011 ( 1976) (                  deliberating juror' s factual assertions

about amount of damages did not warrant new trial when amount of damages was within the

testimony presented at trial).




 15 For example, on October 9, the jury heard Heath' s deposition clip in which he repeatedly
referred         to   being     at   the   SCC, that he           was "   locked up,"       that had no contact with his family since
he had been               at   the SCC,      and       that he had been incarcerated              since about February 2010.   CP at
 540.       Dr. Phenix           also      testified that ( 1)        Heath " has      not    been   outin the community since" he
 reoffended           in 2010, 3 VRP              at   310; ( 2) Heath         would   likely    reoffend " should he be released," 3

 VRP       at        3) Heath had about a year and a half left of parole or community supervision " once
                 311; (
 he'   s   released," 3 VRP at 311; and ( 4) Dr. Phenix she did not think " that he is safe to be released

 to the community until he has sufficient treatment and demonstrated that he can comply with
 conditions."             3 VRP at 312.


                                                                                14
No. 44137 -3 - II



        Second, the instructions stated that for the jury to find Heath a SVP, the State had to

prove that ( 1) he had been convicted of a crime of sexual violence, here, first degree child rape;

 2) he suffered from a mental abnormality or personality disorder that caused serious difficulty in

controlling his sexually violent behavior; and ( 3) his mental abnormality or personality disorder

made   him    likely   to   engage   in predatory      acts of sexual violence.       All three factors were clearly

established independent of any information about Heath' s incarceration.

        Heath     conceded     his first degree       child rape conviction.       Dr. Phenix testified


with        based
       fact -          support,   that to       a   reasonable    degree   of    psychological   certainty, ( 1)   Heath


suffered   from     pedophilia       and   two personality disorders —antisocial           personality disorder and

borderline personality disorder; and ( 2) Heath had a stronger propensity than the average person

to engage in violent behavior, violations of community supervision, and a greater amount of

future sexual criminal behavior; and ( 3) Heath' s borderline personality disorder would likely to

lead to inappropriate sexual activity because it affected his choice -making and with whom he

interacted.


        We hold that, based                on   the   substantial     evidence   already before the     jury, no juror

misconduct prejudiced the outcome of the trial, the jury would have found Heath was a SVP

regardless of the alleged juror misconduct, and Heath is not entitled to a new trial on this ground.

Therefore, we affirm the trial court' s denial of Heath' s motion for a mistrial.



 16 Heath also asserts that juror misconduct occurred when jurors commented about Dr. Phenix' s
 articulateness during her testimony. Heath provides no authority or further supporting argument

 for the proposition that expressing praise for an expert witness' s articulateness constitutes juror
 misconduct. Because this asserted error lacks developed supporting argument as RAP 10. 3( a)( 6)
 requires, we need not further consider it. Nevertheless, even had Heath developed this argument,
 he fails to show resulting prejudice.



                                                                 15
No. 44137 -3 -II



                                        II. UNANIMITY INSTRUCTION


         Heath next contends that he was denied his right to a unanimous jury because the trial

court ( 1) failed to instruct the jury on the need for unanimity about which of his multiple mental

disorders underlay its SVP determination, and ( 2) the State did not offer sufficient evidence to

support each alternative means. This argument fails.


         RCW 71. 09. 060 provides that when a jury determines a person is a SVP, the verdict must

be   unanimous.    Under RCW 71. 09. 020( 18),         a SVP is any person who has been convicted of or

charged with a crime of sexual violence and who suffers from a mental abnormality or a

personality disorder that makes the person likely to engage in predatory acts of sexual violence if

not confined in a secure facility.

         Our    Supreme     Court has     held that ( 1)      the alternative means test applies to SVP

proceedings,     and (   2) the SVP   statute allows   two    alternative means — "mental    abnormality"   and




 personality disorder " —to      support   a   SVP determination.         Halgren, 156 Wn.2d at 810, 811.


Although the State need prove only one alternative means to support a SVP determination, where

the evidence is sufficient to prove both alternative means ( mental abnormality and personality

disorder) beyond a reasonable doubt, a trial court does not violate the SVP' s constitutional right


to unanimity by failing to instruct the jury that it must be unanimous about which means it used
to   support   its SVP determination. Halgren, 156 Wn.2d           at   811, 812. If in addition to or in lieu of


the mental abnormality means, the SVP suffers from two personality disorders, the jury need not




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No. 44137- 3- 11



be   unanimous about which          personality disorder            contributed    to its SVP determination.   See In re


Det. ofSease, 149 Wn. App. 66, 78 -79, 201 P. 3d 1078, review denied, 166 Wn.2d 1029 ( 2009). 17
        Halgren    suffered     from "     at   least"   one mental abnormality and one personality disorder.

Halgren, 156 Wn.2d       at    800.    Halgren argued that the trial court should have instructed the jury

that it had to agree unanimously about whether it was his mental abnormality or personality

disorder that caused him to be a SVP. Halgren, 156 Wn.2d at 807. The Supreme Court rejected

this argument because there was sufficient evidence of both the mental abnormality and the

personality disorder, noting that " because an SVP may suffer from both defects simultaneously,

the mental illnesses are not repugnant to each other and may inhere in the same transaction."

Halgren, 156 Wn.2d at 810.


         To determine whether the jury' s SVP verdict was based on substantial evidence of both
alternative   means    here,    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


17 More specifically, as we held in Sease:
                   The SVP statute delineates two alternatives for satisfying the State' s
         burden    of establishing a mental condition " which makes the person likely to

         engage in predatory acts of sexual violence if not confined in a secure facility" —
         mental    abnormality        or   personality disorder.            RCW 71. 09. 020( 16).     There is no

         dispute that Sease sufferedfrom one or, possibly, two personality disorders.
                 As in [ In re Pers. Restraint Petition of Patrick James Jeffries, 110 Wn.2d
         326, 752 P. 2d 1338, cert. denied, 488 U. S. 948 ( 1988)], the jury here need only
         have unanimously found that the State proved that Sease suffered from a
         personality disorder that made it more likely that he would engage in acts of
         sexual    violence    if   not    confined      to    a   secure   facility.   The jury need not have
         unanimously decided whether Sease sufferedfrom borderline personality disorder
         or antisocial   personality disorder.                Therefore, the trial court did not err in failing
         to give a unanimity instruction and it is not an error that Sease can raise for the
         first time on appeal.
Sease, 149 Wn. App. at 78 -79 ( emphasis added).



                                                                   17
No. 44137 -3 - II



proved   beyond     a reasonable     doubt that [ the defendant] is          a   sexually   violent predator."   State v.


Hoisington, 123 Wn.           App.   138, 147, 94 P. 3d 318 ( 2004), review denied, 153 Wn.2d 1031


 2005). "   The substantial evidence test is satisfied if this court is convinced that ` a rational trier


of fact could have found each means of [ fulfilling the SVP requirements] proved beyond a

reasonable   doubt. "'      Halgren, 156 Wn.2d at 811 ( quoting State v. Kitchen, 110 Wn.2d 403, 410-

11, 756 P. 2d 105 ( 1988)).


         Here, there was substantial evidence of both Heath' s personality disorders and his mental

abnormality, either of which alternate means would support the jury' s determination that Heath

is a SVP. Dr. Phenix testified at length about Heath' s pedophilia, antisocial personality disorder,

and   borderline personality disorder.               Dr. Phenix       also       opined,   to a reasonable degree of


psychological       certainty, that ( 1)     Heath' s pedophilia constituted a mental abnormality that

affected his emotional capacity and predisposed him to commit criminal sexual acts that

menaced     the health       and   safety   of   others;    and (   2) Heath' s personality disorders —antisocial


personality disorder ( predominantly)              and     borderline personality disorder —contributed to his


sexually    violent   behavior,    which    he had   serious    difficulty       controlling.   Here, a rational trier of


fact could have found each means of being a SVP beyond a reasonable doubt.

         Viewing      the    evidence   in the light        most    favorable to the State, we hold there was


sufficient evidence to persuade a fair -
                                       minded rational person beyond a reasonable doubt that

Heath suffered from both personality disorders and a mental abnormality, each and both of

which made him more likely to engage in predatory acts of sexual violence if not confined to a




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No. 44137 -3 - II



secure    facility.   See Halgren, 156 Wn. 2d   at   811; Sease, 149 Wn.   App.   at   80.   Accordingly, we

affirm.




          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.




We concur:




F 3rgej', A.C..I.




Lee,




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