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                                                                                                           T 0I APPE, LS
                                                                                                          DIVISION II
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


                                               DIVISION II
                                                                                                2015 FEB 10 AM 8: 55
                                                                                                S
                                                                                                                  NG TON
In re Detention of:                                                       No. 44759 -2 -II      BY

DARRELL L. KENT,


                                         Appellant.                 UNPUBLISHED OPINION




        Bjorgen, A.C. J. —       Darrell Kent appeals from the trial court' s order of commitment,


entered upon a jury' s finding that Kent qualified as a sexually violent predator under RCW

71. 09. 060. Kent contends that his appointed counsel rendered ineffective assistance during the

involuntary commitment proceedings. Specifically, Kent argues that counsel performed

deficiently by failing to object to testimony from the State' s psychology expert that the expert

had consulted with another psychologist before changing his initial calculation of Kent' s score

on two statistical tools used to assess the likelihood of recidivism among sex offenders. Because

Kent fails to establish deficient performance, we affirm.


                                                      FACTS


        Kent has pled guilty to three sex offenses and admitted to sexual misconduct involving
                            1
many women     and girls,       including forcibly raping several 8- to 13 -year old girls. Relevant to

this appeal, in 1995 Kent pled guilty to rape of a child in the second degree, based on conduct

against his stepdaughter, and the court sentenced him to 96 months' confinement.




1 One of these is a 1976 New Mexico conviction for attempted criminal sexual penetration in the
third degree, based on conduct against an adult woman. Ex. 2. The other two convictions,
discussed below, involved conduct against Kent' s daughter and stepdaughter that occurred when
both   were minors.
No. 44759 -2 -II



        Sometime after Kent' s 2003 release, his biological daughter disclosed that Kent had also

raped her between 1992 and 1995. Based on this accusation the State again charged Kent with


rape of a child, and he ultimately entered a negotiated Alford plea to second degree child

molestation in 2005. The court sentenced him to 84 months' confinement.


        Prior to his 2005 incarceration, Kent had spent approximately, 18 months in the

community. Nothing in the record suggests that he committed any sex offense or otherwise

engaged in inappropriate conduct toward women or young girls during that time.

        In 2011, while Kent was still in prison, the State petitioned under chapter 71. 09 RCW to


have him involuntarily committed as a sexually violent predator for the protection of the

community. The petition alleged that Kent had been convicted of two crimes qualifying as

 sexually   violent offenses" under       the   statute and suffered    from "[ p] edophilia"   and "[ a] ntisocial




 p] ersonality [ d] isorder."   Clerk' s Papers ( CP) at 216 -17.


        Prior to trial, Kent moved to exclude the State' s psychology expert, Dr. Mark Patterson,

from testifying to opinions that other, nontestifying experts had reached regarding Kent. The

State agreed, and the trial court granted the motion.


        At trial, Patterson testified to his diagnoses that Kent suffered from pedophilia and


antisocial personality disorder. Patterson also opined that Kent would more likely than not

 commit
            sexually   violent offenses    in the future if not     confined."   2 Verbatim Report of


Proceedings ( VRP) at 222.


         Patterson based his opinion as to future dangerousness in part on two actuarial tools, the


 Static -99R"   and "   Static- 2002R."    1 VRP    at   169 -71.   These tools allow an evaluator to assign a


numerical score to a particular sex offender based on various fixed characteristics, such as the




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

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No. 44759 -2 -II



number of convictions, whether the offender used violence, whether the victims included

strangers, and the offender' s age at the time of release. Each score corresponds to a probability

value calculated using statistical research on sex offender recidivism, estimating the likelihood

that the offender will be charged with another sex offense within certain time periods.


       Patterson had originally calculated Kent' s score on the Static -99R as two, corresponding

to a 12. 2 percent probability that Kent would be charged with another sex offense within 5 years,

and a 19. 7 percent probability within 10 years. Patterson originally calculated Kent' s score on

the Static -2002R as four, corresponding to 15. 5 percent and 23. 5 percent probabilities of

subsequent sex offense charges within 5 and 10 years, respectively. Patterson later changed his

calculations of Kent' s scores to four on the Static -99R and six on the. Static- 2002R, based on a


different interpretation of the actuarial tools' scoring rule regarding the offender' s age at the time

of release.




        Patterson had first, for scoring purposes, based Kent' s age at the time of release on the.

date Kent was scheduled to complete the prison term he was then serving, resulting from the

2005 child molestation conviction involving Kent' s biological daughter. He later changed the

scoring calculation based on Kent' s age when he was released from prison in 2003, after serving

the sentence imposed on the child rape conviction involving his stepdaughter. Because research

shows that the risk of re- offense tends to decline as the offender ages, the new scores yielded


significantly higher estimates of the probability that Kent would incur another sex offense charge

if not confined.3




3 Patterson' s new calculations yielded probabilities that Kent would incur additional sex offense
charges within the 5 -year and 10 -year periods of 20. 1 percent and 29. 6 percent, respectively,
according to the Static -99R, and 24 percent and 33. 8 percent according to the Static- 2002R.
Kent does not challenge the scoring change on its merits.


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No. 44759 -2 -II



       Based on Kent' s opening statement, the State moved prior to Patterson' s testimony to

prohibit Kent from implying during cross -examination that Patterson had changed his scoring

calculations at the request of the deputy prosecutor. The court granted the motion to the extent

that Kent could not suggest on cross -examination that Patterson had " agreed" to a request from


the deputy prosecutor to change the score, but made clear that Kent could otherwise freely

inquire into the   reasons   for the   change.   1 VRP at 74. The record of this discussion shows that


Kent' s attorney knew by that time that Patterson had finalized his decision to change Kent' s

score on the two actuarial tools after consulting with Dr. Amy Phenix, an expert who helped

develop the tools.

        The prosecutor inquired into Patterson' s scoring change on direct examination, but did

not elicit any testimony that Patterson had consulted with another expert before finalizing the

change. Kent' s attorney then cross -examined Patterson extensively concerning the change.

During cross -examination, the following exchange occurred:

        Q.     Okay. So did you actually look at the 2012 update on scoring the age item
        before making the change that you made?
        A.         What I did was I consulted with one of the people that you' re referring to
        who' s been part of the scoring manual and research having to do with the Static -
        99, Static -2002, and presented information, consulted with her about the scoring of
        the item.
        Q.         And you did that over the phone?
        A.         By e -mail.
        Q.         By e -mail? Okay. And you did that in terms of questions that you had about
        offense cluster and about pseudo recidivism; is that right?
        A.         As it applies in this case.


2 VRP at 277. The prosecutor inquired further into Patterson' s consultation with Phenix on


redirect, eliciting testimony that Phenix confirmed that Patterson had accurately calculated the

later, higher -risk scores. Kent did not object to this testimony.




                                                         4
No. 44759 -2 -II



            After the State rested, Kent presented the testimony of Luis Rose11, a licensed

psychologist who has extensive experience working with sex offenders. Rosell had calculated

Kent' s scores on the two actuarial tools using the later release date, resulting in the same

numbers as Patterson' s initial, lower -risk calculation. Over the State' s hearsay objection, Rosell

testified that, after learning that Patterson had changed scores, Rosell consulted with " one of the

people who you can send e -mails to" with scoring questions about the Static -99R and Static -

2002R, a Dr. Jan Looman, but did not change his score as a result of the consultation. 3 VRP at

401 - 03.    Dr. Looman is a researcher on psychopathy and recidivism, and the chief psychologist

of a sex offender treatment center in Canada.


            Outside the presence of the jury, Kent requested the trial court' s permission to have

Rosell testify in more detail regarding his consultation with Looman on redirect, pointing out

that Patterson had testified that Phenix ( 1) had participated in developing the tools and ( 2)

confirmed that Patterson had correctly calculated Kent' s score. The State objected on hearsay

grounds. The court ruled as follows:


            I' m not going to just open the door to whatever hearsay is going to be coming in or
            not coming in. You know, the objections and statements as to Dr. Patterson are not
            timely. They should have been made at the time he was testifying. As to Dr. Rosell,
            he   can explain again with     the   narrow   basis for why he   consulted ...   Dr. Looman in
            a similar fashion as what Dr. Patterson had done, but if there' s an objection that it' s
            hearsay and I find it' s hearsay, then I' m not going to allow it.

3 VRP       at   504. On   redirect,   Rosell testified   without objection    that Looman, " one of the Static -


99R coding        people ...   who     helps them   out with   the coding   rules,"   confirmed that Rosell had


correctly calculated the lower -risk scores. 3 VRP at 521 -22.

            Rosell ultimately opined that, if released into the community, the probability that Kent

would reoffend was less than 50 percent. The State recalled Patterson to give rebuttal testimony,

during which Patterson, without objection, described his consultation with Phenix in more detail,
                                                               5
No. 44759 -2 -II



identifying her by name as " one of the authors of the scoring manual for both of the static tools."

3 VRP at 561 -62.


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

that Kent was a sexually violent predator. The trial court entered an order indefinitely

committing Kent to the Special Commitment Center and to the Department of Social and Health

Services. Kent timely appeals.


                                               ANALYSIS


       Kent contends that his trial attorney rendered ineffective assistance by failing to object to

Patterson' s testimony that he had consulted with Phenix and that Phenix confirmed the accuracy

of Patterson' s scoring procedure on the Static -99R and Static -2002R actuarial tools. The failure
to object was unreasonable, Kent argues, because he had obtained a pretrial ruling prohibiting

Patterson from testifying to the opinions of other experts, because Kent' s age was the main factor
in his defense, and because the experts' decisions on how to score him on that factor was the

major issue in contention at trial. Kent asserts that the failure to object prejudiced him because

 1) the trial court' s remarks and pretrial ruling show that it would have sustained a timely

objection, (   2) the higher scores on the actuarial tools increased the credibility of Patterson' s risk

assessment, which was critical to the State' s case, and ( 3) without Phenix' s stamp of approval,

there was little basis for jurors to believe Patterson over Rosell.


        Finding defense counsel' s conduct reasonable under the circumstances, we affirm.

                                         I. STANDARD OF REVIEW


        We review claims of ineffective assistance de novo. State v. A.N.J., 168 Wn.2d 91, 109,

225 P. 3d 956 ( 2010). To      prevail on such a claim, a   defendant   must show   that "(   1) his counsel' s


performance      fell below   an objective standard of reasonableness and,   if so, ( 2) that counsel' s poor



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No. 44759 -2 -II



work prejudiced    him." A. N.J., 168 Wn.2d           at   109. "   The benchmark for judging any claim of

ineffectiveness must be whether counsel' s conduct so undermined the proper functioning of the

adversarial process   that the trial   cannot    be   relied on as    having   produced a just result."   Strickland


v.   Washington, 466 U. S. 668, 686, 104 S. Ct. 2052, 80 L. Ed.2d 674 ( 1984).                 We apply " a strong

presumption    that defense   counsel' s conduct       is   not   deficient." State v. Reichenbach, 153 Wn.2d


126, 130, 101 P. 3d 80 ( 2004).      An appellant rebuts this presumption by showing that " no

conceivable    legitimate tactic   explain[ s]   counsel' s performance."         Reichenbach, 153 Wn.2d at


130. To prevail on an ineffective assistance claim based on counsel' s failure to object to


evidence, an appellant " must show that not objecting fell below prevailing professional norms,

that the proposed objection would likely have been sustained, and that the result of the trial

would    have been different if the    evidence       had   not   been   admitted."   In re Pers. Restraint ofDavis,

152 Wn.2d 647, 714, 101 P. 3d 1 ( 2004) ( footnotes omitted).


                          II. KENT FAILS To SHOW DEFICIENT PERFORMANCE


          Under ER 703 and 705, the trial court had discretion to allow Patterson to testify

concerning his consultation with Phenix. ER 703 provides that

           t] he facts or data in the particular case upon which an expert bases an opinion or
          inference may be those perceived by or made known to the expert at or before the
          hearing. If of a type reasonably relied upon by experts in the particular field in
          forming opinions or inferences upon the subject, the facts or data need not be
          admissible in evidence.


ER 705 provides that


           t]he expert may testify in terms of opinion or inference and give reasons therefor
          without prior disclosure of the underlying facts or data, unless the judge requires
          otherwise. The expert may in any event be required to disclose the underlying facts
          or data on cross examination.


Read together, these rules allow expert witnesses to testify concerning the reasons for their

opinions, even though the information relied on is inadmissible hearsay:

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No. 44759 -2 -II



            Rule 705 states that an expert may " give reasons" for his or her opinion " unless the
            judge requires   otherwise."   And since Rule 703 allows an expert to base an opinion
            upon hearsay if it is reasonable to do so, Rule 705 permits ( but does not require)
            the court to allow the expert to relate the hearsay to the jury to explain the reasons
            for his or her opinion, subject to appropriate limiting instructions.

5B KARL B. TEGLAND, WASHINGTON PRACTICE, EVIDENCE LAW                   AND   PRACTICE § 705. 4, at 292


 5th   ed.   20007) ( footnotes omitted).


             Under these rules, Kent' s attorney faced a choice between either ( 1) foregoing a vigorous

challenge to Patterson' s credibility based on the scoring change in the hope of keeping

Patterson' s consultation with Phenix from the jury, or ( 2) attempting to exploit the scoring

change to undermine Patterson' s credibility in spite of the risk that the jury would hear about the

Phenix consultation. We cannot say that the attorney' s decision to pursue the latter course was

unreasonable in light of the alternative, particularly because Kent' s expert witness, Rosell, had

consulted with an authoritative expert who confirmed Rosell' s original results.


             Kent attempts to avoid the conclusion that his trial attorney made a reasonable tactical

decision by pointing to the trial court' s order on Kent' s motion in limine, which prohibited

Patterson from testifying to opinions that nontestifying experts had reached regarding Kent. That

motion, however, addressed " psychologists, counselors and mental health workers who came


into contact with Mr. Kent in the past" and " opinions of other non -testifying witnesses who may

have conducted evaluations of Mr. Kent or who have arrived at some opinion about Mr. Kent."

CP     at   91.   Phenix' s opinion related by Patterson concerned the proper procedure for scoring that

portion of the actuarial tools addressing the offender' s age at the time of release. Phenix' s

opinion did not concern Kent individually, whom Phenix did not evaluate. Thus, the court' s

ruling on the motion in limine did not cover this testimony by Phenix. Kent fails to show that the

trial court would likely have sustained an objection to Patterson' s testimony regarding Phenix.


                                                        8
No. 44759 -2 -II



        We conclude that the decision by Kent' s counsel not to object to testimony about

Patterson' s consultation with Phenix conceivably furthered a legitimate tactical purpose. Kent

thus fails to show that his attorney' s conduct fell below an objective standard of reasonableness.

        Affirmed.


        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.




                                                                        A,c.
 We concur:




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