          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Detention of               No. 72392-8-1
                                                                                 f~0         ( ; - •„
GREGORY S. JAEGER.
                                                DIVISION ONE
STATE OF WASHINGTON,

                          Respondent,
                                                UNPUBLISHED OPINION
               v.

                                                                                       CO
                                                                                       -F"
GREGORY S. JAEGER,

                          Appellant.            FILED: September6,2016

      Schindler, J. — Following a three-week trial, a jury found the State proved

beyond a reasonable doubt that Gregory S. Jaeger is a sexually violent predator under

chapter 71.09 RCW. The trial court entered an order of commitment to the custody of

the Department of Social and Health Services. Jaeger argues denial of motions for a

mistrial, evidentiary rulings, and misconduct during closing argument requires reversal.

Jaeger also challenges his civil commitment on constitutional grounds. We affirm.

                                         FACTS


       Gregory S. Jaeger exhibited cognitive and behavioral deficiencies throughout his

childhood. Since the age of seven, Jaeger has been diagnosed with attention deficit

hyperactivity disorder, pervasive development disorder, bipolar disorder, obsessive-

compulsive disorder, general anxiety disorder, fetal alcohol syndrome, and alcohol

related neurodevelopmental disorder. A number of mental health providers have
No. 72392-8-1/2


provided treatment to Jaeger. Jaeger was enrolled in special education classes at

school.


         The State filed charges against 16-year-old Jaeger in juvenile court alleging child

molestation and attempted child molestation in the first degree. Jaeger pleaded guilty.

The court ordered Jaeger remain at a juvenile rehabilitation administration (JRA) facility

until age 21. Shortly before his scheduled release from Maple Lane School, the State

filed a petition to civilly commit Jaeger as a sexually violent predator and transferred him

to the Department of Social and Health Services Special Commitment Center Program

(SCC).

         At trial, the State had the burden to prove beyond a reasonable doubt Jaeger

"has been convicted of a crime of sexual violence," he "suffers from a mental

abnormality or a personality disorder which cause(s) him serious difficulty controlling his

sexually violent behavior," and "his mental abnormality or personality disorder makes

[him] likely to engage in predatory acts of sexual violence if not confined to a secure

facility."1

         The State called several witnesses including Dr. Harry Hoberman, Paul Luttrell,

and Hayley Shepard. Dr. Hoberman was the State's main witness. Dr. Hoberman is a

clinical and forensic psychologist specializing in evaluating individuals considered for

civil commitment as sexually violent predators.

         Dr. Hoberman testified that Jaeger suffers from multiple psychotic conditions

affecting his ongoing ability to control his sexual behavior.

               I guess what I would say is Mr. Jaeger is a young man who is
         characterized by multiple psychiatric conditions, multiple problems.


          See RCW 71.09.020(18).
No. 72392-8-1/3


      They're long-standing problems. They mostly, almost all of them have
       implications or consequences for his self-control.
              They have implications for his ability to manage his behavior
       generally, as well as his sexual behavior, and lead to his having ongoing
       problems with both actually acting out and his risk for future sexually
      acting out.
               I think you can think of Mr. Jaeger as someone who has a high
       level of urges, desires, things of that sort, pushes from inside as well as
       pulls from his environment that stimulate him. And then someone who
       lacks brakes, if you will, things to regulate or modulate those things, that
       he's got really very significant deficits in self-control.

       Dr. Hoberman testified that Jaeger has a history of serious problems managing

his behavior generally and his sexual behavior. Jaeger would engage in aggressive

outbursts at home and in school. Jaeger exhibited sexualized behaviors from a young

age including sexual behavior with younger boys and fetishism associated with soiled

diapers. With regard to his juvenile conviction, Jaeger used soda pop "as a mechanism

... to lure" the first victim and crawled under a locked bathroom stall to reach the

second victim.


      Dr. Hoberman testified that Jaeger struggled to correct his behavior. For

example:

      [0]ne of the really significant things about Mr. Jaeger is that he really does
      the same things over and over again. He is verbally aggressive to people,
      he's physically aggressive to peers, he gets in trouble for it, he gets
      suspended, he does it again.

      Jaeger's problematic behavior continued while detained at the SCC. Jaeger also

continued fantasizing about sexual contact with young boys. Dr. Hoberman testified

that while at the JRA facility, Jaeger "was marked by a high level of impulsive behaviors

generally so that he was aggressive towards residents, [and] he was verbally

aggressive in a fairly extreme way to the staff." Jaeger was repeatedly removed from

the sex offender treatment program due to "lack of compliance [and] acting out."
No. 72392-8-1/4



       Dr. Hoberman concluded Jaeger suffers from several mental abnormalities and

personality disorders that prevent him from controlling his sexually violent behavior. Dr.

Hoberman testified Jaeger suffers from attention deficit hyperactivity disorder and meets

the criteria for several personality disorders including borderline personality disorder,

antisocial personality disorder, and narcissistic personality disorder. Dr. Hoberman

testified these disorders result in impulsivity, disregard for rules and consequences, lack

of empathy, and an obsessive desire to fulfill his own needs. Dr. Hoberman diagnosed

Jaeger with pedophilic disorder, fetishism, and sexual masochism disorder. Dr.

Hoberman testified that in his opinion, Jaeger "is more likely than not to engage in

predatory acts of sexual violence if not confined to a secure facility."

       Paul Luttrell was Jaeger's case manager for four years at Maple Lane School.

During counseling sessions, Jaeger said he began looking at pornography around age

10 and "preferred finding pre-aged school [boys]" because "he found that more arousing

for him." Jaeger told Luttrell that he masturbated with diapers because it made him

think about having sexual contact with children. Luttrell testified that throughout the four

years at the Maple Lane School, Jaeger "would make generalized comments about

having fantasies about an attraction to boys." Jaeger told Luttrell that he "was really

fearful that he did not have control over his urges; and that, when he returned to the

community, he was worried about re-offending."

       Jaeger also told a Maple Lane School administrator he was concerned he "would

harm children in the community." Jaeger asked the administrator to help civilly commit

him.
No. 72392-8-1/5



       Jaeger's SCC case manager Hayley Shepard testified Jaeger struggles to follow

the rules and exhibits aggressive behavior. Jaeger had problems following staff

directives and tearing up his room. Jaeger is "very impulsive" and "struggles to stop

and think before he acts." On one occasion, Jaeger attacked a disabled resident

confined to a wheelchair. Shepard testified that although Jaeger is "quick to say .. .

when he's done something wrong [and] that he will never do it again," he continues to

violate the rules.

       Shepard testified Jaeger repeatedly engaged in sexual activity with other

residents at the SCC. Shepard said Jaeger admitted taking used diapers worn by other

SCC residents for masturbation. Jaeger told Shepard that "he felt he wouldn't be able

to control that fetish in the community." Jaeger admitted he does not have control over

his emotions or behavior.

       Jaeger called several witnesses including Dr. Denise Kellaher and Dr. Natalie

Brown. Dr. Kellaher testified that Jaeger exhibited an intellectual disability and autism.

Dr. Kellaher testified these disorders do not make Jaeger more likely to engage in

predatory acts of sexual violence. Dr. Brown testified Jaeger's behavior is consistent

with autism and his intellectual and behavioral deficits are consistent with with fetal

alcohol spectrum disorder.

       The juryfound the State proved beyond a reasonable doubt that Jaeger is a

sexually violent predator. The trial court entered an order of commitment to the custody
of the Department of Social and Health Services at the SCC. Jaeger appeals.
No. 72392-8-1/6


                                        ANALYSIS


Motions for Mistrial


       Jaeger argues the trial court erred in denying the motion for mistrial he made

during voir dire and after a juror fainted during the opening statement.

       The decision to deny a motion for mistrial is within the sound discretion of the trial

court and is reviewed for an abuse of discretion. In re Pet, of Broten, 130 Wn. App.

326, 336, 122 P.3d 942 (2005). A court abuses its discretion if the decision is based on

untenable grounds or manifestly unreasonable. Broten, 130 Wn. App. at 336. The trial

court is in the best position to discern prejudice and determine whether a juror can be

fair. State v. Noltie, 116 Wn.2d 831, 839-40. 809 P.2d 190(1991). A mistrial is

warranted only when nothing short of a new trial can ensure a fair trial. In re Pet, of

Griffith, 136 Wn. App. 480, 485, 150 P.3d 577 (2006).

       (1) Motion for Mistrial During Voir Dire

       Jaeger contends the response of Juror 61 during voir dire tainted the jury pool

and the court erred in denying his motion for a mistrial. We disagree.

       The court summoned 100 potential jurors. The jurors completed individual

questionnaires prior to voir dire. The court conducted jury voir dire in two sessions with

50 jurors each.

       Jaeger's attorney requested the court ask a number of specific questions during

voir dire about sex crimes and sex offenders "to get true answers." The trial court

agreed to do so.
No. 72392-8-1/7


      At the beginning of voir dire, the court explained the importance of giving an

honest answer.


             I want to make a comment on why we require you to take the oath.
      The jury selection process can only work if you are open and candid with
       us



              Now, we will be asking you questions not to pry into your personal
      affairs or to embarrass you, but to determine if you are unbiased and
      without preconceived ideas that might have an effect on the case. Please
      do not withhold any information in order to be seated on this particular
      jury.
              This is actually important, and I want to spend just a minute on this.
      Is that, don't worry about what we might think of your answer, don't worry
      about whether your answer is the right answer or the wrong answer. The
      reason why I am talking to you about this is it's natural for people that are
      in a formal setting like a courtroom, people who may not feel comfortable
      speaking in public, that they [cjensor themselves in order not to embarrass
      themselves by giving an answer that they think we might regard as
      inappropriate. . . . We are asking you about the judicial system and we are
      trying to determine ultimately whether you can be fair and impartial. It
       might be that — I think most of you are fair people. But sometimes people
       may, because of their own personal experiences, not be able to be
       impartial in a particular kind of case. I don't know if this is that kind of
       case. But it's very important for you to be forthcoming with us about what
       you are actually feeling as you are being asked these questions.

       In response to whether any prospective jurors had "any specialized training,

education or work experience related to sexual offenders," six prospective jurors,

including Juror 61, responded affirmatively. Juror 61 stated he had been a police officer

with the King County Sheriff's Office for 25 years. The court then asked the prospective

jurors if anything about their training, education, or work experience "would make it

difficult for you to be fair and impartial in this case." Juror 61 responded, "Everything

pertaining to the last [25] years in law enforcement investigations of hundreds of abuse

cases."
No. 72392-8-1/8



       In response to whether "anybody had received a community notification letter

informing the community that a registered sex offender was moving into the

neighborhood," 11 prospective jurors, including Juror 61, responded affirmatively. The

court then asked, "[W]as there anybody who received the notice who felt extremely

strongly about the fact that somebody was moving into the neighborhood that was a

registered sex offender, so much so you actually thought you might want to move?" A

number of jurors responded affirmatively. The trial court asked whether anyone who

"answered that question in the affirmative . . . reacted very strongly to that information in

a way that might somehow affect you as a juror in this case." In response, Juror 61

indicated his experience had "jaded" him "a little bit" and made him "a little cynical in my

outlook and belief that. . . they are more likely ... to band together and I need to watch

out for these guys."

               JUROR NO. 61:         Over the last twenty-five years, I've worked with
       our sexual assault unit, both in writing the letters we send out to the public
       as well as attending all the meetings we have for the public. In the
       districts I patrolled, it was common practice that we go by the registered
       sex offender's homes and check on them as part of my daily work.
               THE COURT:          The question that I'd asked was whether this type
       of experience, exposure to registered sex offenders or hearing about
       registered sex offenders, elicited such a strong feeling that it might affect
       your ability to be fair and impartial in this case.
              JUROR NO. 61:         I would say yes, that has jaded me a little bit.
              THE COURT: When you say it's jaded you, can you explain what
       that means.
              JUROR NO. 61:        I would say that the jading has made me a little
       cynical in my outlook and belief that, okay, they are more likely that they
       are going to band together and I need to watch out for these guys.
              THE COURT:        Thank you.




                                              8
No. 72392-8-1/9


       Jaeger moved for a mistrial. Jaeger argued Juror 61 's statement that sex

offenders "are more likely than not to re-offend" tainted the jury pool.

       You have a police officer who on several occasions has talked about his
       lengthy experience, his great knowledge and in this particular area and
       said that because of that great experience of twenty-five years of going
       and visiting sex offenders he believes they are more likely than not to re
       offend, which is the question here. I don't think that bell can be unrung.

       Contrary to Jaeger's assertion, the record shows Juror 61 never stated sex

offenders are likely to reoffend. The court denied the motion for a mistrial. "It's one

man's opinion. And I don't think that there's any indication that because ... he has a

certain opinion that he is jaded, that it so prejudices the case that Mr. Jaeger cannot

receive a fair trial."

        Before resuming voir dire with the jury venire, the parties identified several jurors,

including Juror 61, to question outside the presence of the other jurors. During

questioning, the court asked Juror 61 if he believed there was a likelihood that sex

offenders would reoffend. Juror 61 answered, "Yes." The court asked Juror 61 if it

would be difficult for him to "let go of whatever assumptions you might bring to this trial."

Juror 61 said he "would not be able to." The court excused Juror 61 for cause.

        Jaeger relies on Mach v. Stewart, 137 F.3d 630 (9th Cir. 1997), to argue the

comments of Juror 61 tainted the jury pool and denied him the right to an impartial jury.

Mach does not support his argument.

        In Mach, the government charged Mach with sexual conduct with a minor. Mach,

137 F.3d at 631. During jury selection, a prospective juror said she had a psychology

background, currently worked for child protective services, and had confirmed child

sexual assault in every case where a client reported it. Mach, 137 F.3d at 631-32. The
No. 72392-8-1/10


juror repeatedly stated that in her three years as a social worker, she never found a

case where a child lied about sexual assault. Mach, 137 F.3d at 632.       The court denied

the motion for a mistrial. Mach. 137 F.3d at 632.

       The Ninth Circuit reversed. Mach, 137 F.3d at 634. The court held the juror's

statements tainted the jury. The statements were "highly inflammatory and directly

connected to Mach's guilt." Mach. 137 F.3d at 634. The juror's comments had an

"expert-like" quality given the juror's years of experience and degree of certainty. Mach,

137 F.3d at 633. The court reversed because the outcome of the trial was "principally

dependent on whether the jury chose to believe the child or the defendant." Mach, 137

F.3d at 634. The court concluded the juror's repetition of the statements created an

especially high risk they would affect the jury's verdict. Mach, 137 F.3d at 633. The

court held:


       Given the nature of [the juror]'s statements, the certainty with which they
       were delivered, the years of experience that led to them, and the number
       of times that they were repeated, we presume that at least one juror was
       tainted and entered into jury deliberations with the conviction that children
       simply never lie about being sexually abused.

Mach. 137F.3dat633.

       Unlike in Mach. Juror 61 did not make repeated, confident assertions directly

addressing the fundamental issue of whether Jaeger is a sexually violent predator. We

conclude the trial court did not abuse its discretion in denying the motion for a mistrial.




                                             10
No. 72392-8-1/11



          For the first time on appeal, Jaeger argues the responses of Juror 1172 and Juror

23 constitute "expert-like" opinion testimony that warranted a mistrial. But defense

counsel did not object to the response of Juror 117 or Juror 2 and did not move for a

mistrial. Jaeger's claim that he had a "standing objection" is not supported by the

record. The standing objection Jaeger refers to did not occur until eight days later and

was related to the extent the parties could inquire into the history of other SCC

residents. We will not review a claim of error not raised in the trial court. RAP 2.5(a);

State v. O'Hara, 167 Wn.2d 91, 97-98, 217 P.3d 756 (2009).

          In a footnote, Jaeger claims manifest error affecting a constitutional right

warrants review under RAP 2.5(a). Because Juror 117 and Juror 2 were excused,

Jaeger cannot show "manifest" error within the meaning of RAP 2.5(a). See O'Hara,

167 Wn.2d at 99 ("manifest" requires showing of actual prejudice).

          (2) Motion for Mistrial During Opening Statement

          Jaeger argues the trial court erred in denying his motion for mistrial after Juror 5

fainted during opening statement. The trial court has broad discretion in addressing

irregularities that arise during trial. State v. Post, 118 Wn.2d 596, 620, 826 P.2d 172

(1992). The record supports the decision to deny the motion for a mistrial.


          2 In the context of the State's "very high burden" of proof beyond a reasonable doubt, Juror 117
stated:
          I worked in an institution a number of years ago, and we worked with a man that was a
          pedophile, serial abuser. And he was in the institution for two to three years at least.
          And I — while I was working with him I did talk with him occasionally and he was
          discharged, released from the hospital. And within that week he was found with a boy,
          little boy in the front seat of his car ready to commit again. To violate the little boy. So
          there has to be some protection for society without abusing the abuser.
          3 In response to defense counsel asking whether offenders are likely to reoffend, Juror 2 stated:
          Afew years ago in conversation with a friend who is a deputy sheriff, he had said if
          someone, as a young person stealing cars, when they get older most likely won't be
          doing that and could quit. But he said when it's something sexual, that there is no cure
          for that. And I have always kind of held those feelings.


                                                        11
No. 72392-8-1/12



       During opening statement, the prosecutor described how Jaeger "repeatedly

acted out sexually in bizarre and deviant ways." The prosecutor described "deviant

practices" that "Dr. Hoberman will put. . . into a psychological context for you." Juror 5

fainted.


       After a brief recess, the court questioned Juror 5 outside the presence of the

other jurors. Juror 5 explained why he fainted: "It's just the combination ... of being in

a courtroom and hearing some graphic details about the case." Juror 5 was "worr[ied]

about it" and concerned it "might happen again." Nevertheless, Juror 5 told the court he

could continue to serve as a juror in the case.

       At the conclusion of the opening statements, the court excused all the jurors for

the noon recess except Juror 5. In follow-up questioning, Juror 5 said he was "feeling

fine at the moment." Juror 5 said he was able to pay attention during the opening

statements and believed he could continue as a juror in the case.

       Jaeger moved for a mistrial arguing the reaction of Juror 5 might "taint the other

jurors." The court denied the motion for a mistrial. "[The jurors are] all individuals and

they are all going to have their reactions."

           Nothing in the record shows that Juror 5 fainting during opening statement

tainted the other jurors. The trial lasted three weeks and we presume the juryfollowed

the court's instructions. Nichols v. Lackie. 58 Wn. App. 904, 907, 795 P.2d 722 (1990).

At the conclusion of trial, the court instructed the jury that the attorneys' remarks are not

evidence and the jury must base its verdict on only the evidence presented at trial.

                  The evidence that you are to consider during your deliberations
           consists of the testimony that you have heard from witnesses, and the
           exhibits that I have admitted, during trial. Ifevidence was not admitted or



                                                12
No. 72392-8-1/13


         was stricken from the record, then you are not to consider it in reaching
         your verdict.

                 . . . You should disregard any remark, statement, or argument that
         is not supported by the evidence or the law as I have explained it to you.

                As jurors, you are officers of this court. You must not let your
         emotions overcome your rational thought process. You must reach your
         decision based on the facts proved to you and on the law given to you, not
         on sympathy, bias, or personal preference. To assure that all parties
         receive a fair trial, you must act impartially with an earnest desire to reach
         a proper verdict.

         The court did not abuse its discretion in denying the motion for a mistrial.

Evidentiary Rulings

         Jaeger claims the trial court abused its discretion by (1) excluding expert

testimony that he was prone to being victimized or groomed and (2) excluding evidence

about the Department of Social and Health Services Community Protection Program

(CPP).

         We review evidentiary rulings for abuse of discretion. City of Auburn v. Hedlund,

165 Wn.2d 645, 654, 201 P.3d 315 (2009). Trial courts have discretion to consider the

relevancy of evidence and balance the probative value of the evidence against

prejudice. State v. Barry, 184 Wn. App. 790, 801, 339 P.3d 200 (2014). A trial court

abuses its discretion when the decision is based on untenable grounds or is manifestly

unreasonable. Broten. 130 Wn. App. at 336. An erroneous evidentiary decision

requires reversal only if" 'it materially affected the outcome of the trial.'" State v.

Beadle. 173Wn.2d97, 120-21. 265 P.3d 863 (2011) (Quoting State v. Russell. 125

Wn.2d 24, 94, 882 P.2d 747 (1994)).




                                               13
No. 72392-8-1/14


       (1) Exclusion of Victimization and Grooming Testimony

      According to Dr. Natalie Brown, Jaeger's behavior could be explained by autism

and fetal alcohol syndrome disorder (FASD). Dr. Brown planned to use PowerPoint

during her testimony. One slide stated youth with FASD "are very susceptible to peer

pressure, easily led, and prone to be victimized by other inmates." The State objected

to a slide that used the phrase "prone to be victimized by other inmates" and to other

slides containing similar themes.

       Jaeger argued the evidence explained his behavior and was necessary to rebut

the evidence that "he's going to fail in the community."

       We are bringing in — the State is bringing in all of Greg Jaeger's past
       behavior at the SCC as a reason why he's going to fail in the community.
             We are showing that there are all these things that he's gone
       through while at the SCC that have created, in large part, the behavior that
       he has done while at the SCC. That — we are not saying anything about
       what's going to happen if he's kept at the SCC.
              . . . We are talking about an explanation for his behavior.

       The trial court sustained the State's objection because there had been no

testimony of either victimization or grooming.

       I am going to strike the last clause, "and prone to being victimized by other
       inmates." There has been no testimony about that in this case. There has
       been testimony about sexual activity at the SCC, but I don't believe that
       that is relevant to this particular case, and we spent a lot of time on what
       the boundary is between legitimate inquiry as to what has happened at the
       SCC and which — and illegitimate, what we have referred to, I think, in
       shorthand form as "this is a bad place" as compared to living at home,
       which is not what is before the jury.
              So I am going to strike that clause and any similar language in any
       of the other slides.

       The trial court acted within its discretion in sustaining the objection. There must

be sufficient factual foundation for expert testimony for the testimony to be relevant.

See, eg.. State v. Kunze. 97 Wn. App. 832, 850 n.67, 988 P.2d 977 ("When an expert


                                               14
No. 72392-8-1/15



desires to apply scientific knowledge to the facts of the particular case, his or her

opinion must also, of course, rest on appropriate case related facts."). There was no

evidence at trial that other SCC residents "victimized" or "groomed" Jaeger. To the

contrary, the record showed Jaeger initiated consensual sexual relationships with other

residents while detained at the SCC.


       Further, in In re Detention of Turav. 139 Wn.2d 379, 404, 986 P.2d 790 (1999),

the court held the "conditions at a particular [Department of Social and Health Services]

facility ... are irrelevant to the determination of whether a person fits within the statutory

definition of [a sexually violent predator]." Jaeger attempts to distinguish Turav by

arguing he did not directly challenge the conditions of the SCC. Jaeger contends Dr.

Brown's testimony was relevant to show Jaeger's susceptibility to victimization and

grooming was an explanation for his allegedly predatory behavior. The record supports

the ruling that the testimony was essentially "shorthand" for conditions at the SCC.

       In any event, Jaeger was able to make the argument that he is highly susceptible

to victimization and grooming. Without objection, Dr. Brown testified that an individual

with FASD is "very susceptible to peer pressure and easily led." Dr. Brown also testified

at length that FASD made Jaeger "highly suggestible."

       [T]here have been others who have published research on suggestibility in
       this population [of individuals with FASD] as well.
              The reason why it's relevant to this particular case is because Mr.
       Jaeger is [a] very suggestible young man and prone to saying things,
       reporting information that might be affected by his suggestibility, might be
       affected by what he's heard other people say or suggest to him.
              So I don't rely on his self-report when I evaluated him. I didn't take
       anything he said at face value. And this is particularly problematic when
       you have a young man who is in treatment and he's hearing all these
       sexual stories and histories from other young people in treatment. There's
       some tendency to kind of adopt some of that as his own history. . . .




                                              15
No. 72392-8-1/16


              . . . This is a young man, who, according to my review of the
      records, is extremely open, tells on himself a lot, sometimes after the fact,
      but many times before the fact he will tell on himself. So I don't get a
      sense that he is deliberately lying but, rather, that he is either responding
      in terms of suggestibility to something that someone has suggested
      actually did occur, and he's incorporating that as his own memory, which
      is called confabulation. He is filling the gaps in his memory essentially
      with something that makes sense that he heard from somebody else.

      (2) Exclusion of Community Protection Program Evidence

       Pretrial, Jaeger argued he was eligible for the CPP as a placement condition or

voluntary treatment option on release under RCW 71.09.060(1).

      The CPP is a state-funded program that provides 24-hour supervision of

developmentally disabled individuals "who have committed serious crimes and served

their prison time." In re Pet, of Mulkins, 157 Wn. App. 400, 402, 237 P.3d 342 (2010).

In addition to supervision, the CPP provides treatment and other support. "The program

is voluntary and participants may refuse services and live without support or

supervision." Mulkins. 157 Wn. App. at 402.

      Jaeger presented evidence that he communicated regularly with CPP staff and

intended to apply for the program after his release. But the evidence also showed his

acceptance into the program was not certain. The regional coordinator testified that if

released, Jaeger's acceptance into the CPP was "uncertain and essentially

hypothetical."

      The trial court excluded evidence of the CPP because it is not a condition that

"would exist" upon Jaeger's release under RCW 71.09.060(1). RCW 71.09.060(1)

states that in determining whether an individual is likely to engage in predatory acts of

sexual violence, the jury may consider the existence of placement conditions and




                                            16
No. 72392-8-1/17


voluntary treatment options that "would exist" if the person is unconditionally released.

      In determining whether or not the person would be likely to engage in
      predatory acts of sexual violence if not confined in a secure facility, the
      fact finder may consider only placement conditions and voluntary
      treatment options that would exist for the person if unconditionally
      released from detention on the sexually violent predator petition.

RCW71.09.060(1).4

       In Mulkins, we upheld the decision to exclude evidence that the CPP was a

treatment option because there was no evidence the respondent "was actually accepted

into ... the program." Mulkins, 157 Wn. App. at 402.

       A respondent in a sexually violent predator. . . proceeding is not entitled
       to present evidence that he or she may be eligible to participate in the .. .
       CPP . . . unless the evidence establishes that this option would in fact
       exist for the respondent as a placement condition or voluntary treatment
       option upon an unconditional release. Here, the respondent failed to show
       that he was actually accepted into and agreed to participate in the
       program upon his release; he simply presented a letter indicating that he
       was a potential candidate for the program.

Mulkins. 157 Wn. App. at 401-02.

       Here, as in Mulkins, there is no evidence Jaeger was "actually accepted" into the

CPP. Mulkins. 157 Wn. App. at 402. Jaeger presented evidence only that "he was a

potential candidate for the program." Mulkins. 157 Wn. App. at 402. The trial court did

not abuse its discretion in excluding CPP evidence.

       Jaeger argues that unlike in Mulkins, he is not seeking to show the CPP is a

condition that would exist upon his release, but rather, that applying to the CPP is a

condition that would exist upon his release. Below, Jaeger did not frame the argument

in this way. His attorney argued evidence of the CPP was relevant because "[i]f Greg
Jaeger can show via the CPP that he is not a danger to the community, then he does


       4 Emphasis added.


                                             17
No. 72392-8-1/18



not meet commitment criteria and he must be unconditionally released." Nonetheless,

evidence that Jaeger "would apply" to the CPP has no bearing on whether the condition

would exist or that he would actually be accepted into the program.

       Even if the CPP evidence is not admissible under RCW 71.09.060(1), Jaeger

asserts the statute violates his constitutional right to due process. In Mulkins, we

considered and rejected the same argument and held the respondent did not have

standing to challenge the constitutionality of the statute. Mulkins. 157 Wn. App. at 406-

07.


               Mulkins asserts that the CPP is an existing option for him, relying
       on the letter from [the Pepartment of Social and Health Services] and
       noting that offenders who have been identified by [the Pepartment of
       Social and Health Services] as meeting the criteria for the program are
       notified by the form letter that was sent to him. But at most, this letter only
       indicated that he was identified as a potential candidate for the program
       and directed him to follow up with his case manager if he was interested in
       the program. Mulkins points to nothing else in the record establishing that
       he has in fact been through the application process, has been accepted as
       a suitable candidate for the program, and has agreed to participate in the
       program. Without further information about his actual placement in the
       program, Mulkins fails to establish that the CPP is an option that in fact
       "would exist" for him upon his release. Thus, even if evidence of the CPP
       were admissible under the statute, he fails to show that it would be
       admissible in his case. He therefore cannot demonstrate that, by
       excluding evidence of the CPP, RCW 71.09.060(1) applies to adversely
       affect his case. Accordingly, he lacks standing to challenge its
       constitutional validity.

Mulkins, 157 Wn. App. at 406-07. We adhere to the decision in Mulkins and conclude

Jaeger does not have standing to challenge RCW 71.09.060(1).

Closing Argument

       Jaeger argues four instances of prosecutorial misconduct during rebuttal

argument violated his right to a fair trial.




                                               18
No. 72392-8-1/19



       We have applied the prosecutorial misconduct standard used in criminal cases to

sexually violent predator cases. In re Petention of Law, 146 Wn. App. 28, 50-51, 204

P.3d 230 (2008).

       To prevail on a claim of prosecutorial misconduct, Jaeger bears the burden of

proving the comments were improper and prejudicial. State v. Yates, 161 Wn.2d 714,

774, 168 P.3d 359 (2007). Comments are prejudicial only if "there is a substantial

likelihood the misconduct affected the jury's verdict." State v. Brown. 132 Wn.2d 529,

561, 940 P.2d 546 (1997).

       The prejudicial effect of improper comments during closing argument must be

viewed not in isolation, but "in the context of the total argument, the issues in the case,

the evidence addressed in the argument, and the instructions given to the jury." Brown,

132 Wn.2d at 561. Where the defense fails to object to an improper remark during

closing argument, error is waived unless the remark is "so flagrant and ill-intentioned

that it causes an enduring and resulting prejudice that could not have been neutralized

by a curative instruction to the jury." Brown, 132 Wn.2d at 561. A prosecutor has wide

latitude in closing argument to draw reasonable inferences from the evidence and may

freely comment on the credibility of the witnesses based on the evidence. State v.

Stenson. 132 Wn.2d 668, 727, 940 P.2d 1239 (1997). Remarks, even if improper, are

not grounds for reversal if invited or provoked by defense counsel or are in pertinent

reply unless the remarks are so prejudicial that a curative instruction would be

ineffective. Russell. 125 Wn.2d at 86.

       Jaeger's attorney argued in closing that the State did not prove beyond a

reasonable doubt that "Jaeger is more likely than not — more than 50 percent likely —



                                             19
No. 72392-8-1/20


to commit sexually violent predatory acts." Jaeger addressed the testimony of Dr.

Kellaher and Dr. Brown at length. The attorney argued the testimony of Dr. Kellaher

and Dr. Brown was more credible than the testimony of Dr. Hoberman. The attorney

also argued that unlike Dr. Hoberman, Dr. Kellaher and Dr. Brown do not "rely on

sexually violent predator cases for their livelihood."

       Jaeger contends the prosecutor improperly disparaged Dr. Kellaher in rebuttal.

In rebuttal, the attorney pointed out the discrepancy between Dr. Kellaher's written

notes and her testimony.

       I confronted [Dr. Kellaher] with the contemporaneous notes, her hand-
       scrawled doctor notes of those interviews that she did with Mr. Jaeger.
       And what she had actually written when she was interviewing him and
       asking about his unwanted, intrusive thoughts that he couldn't control, she
       had written, "Mom dying and killing mom and dad. Suicide if parents
       dying."
                 So there was kind of a mad scramble on redirect examination when
       she tried to explain that discrepancy. She said, "Oh, I just — I didn't have
       time to accurately write down what he had truly told me. What he told me
       was that he had been having unwanted thoughts about other people killing
       his parents." She said other people killing, she also said other people
       murdering his parents.
                 Are you accepting that as an explanation? It doesn't make any
       sense. Ifthat were true, even that would be of psychological significance,
       wouldn't it? Wouldn't she be expected to record that the unwanted
       thoughts were of somebody murdering his parents?
                 She cleaned that. She scrubbed that. And she put it in her formal
       report. She disgraced herself in this courtroom by doing that.

       Jaeger objected after the last comment that Dr. Kellaher "disgraced herself in this

courtroom by doing that." The court sustained the objection. The comment was

improper. State v. Monday. 171 Wn.2d 667, 677, 257 P.3d 551 (2011) (a prosecutor

may not state a personal belief as to the credibility of a witness). But Jaeger cannot

show a substantial likelihood that the comment affected the verdict. Jaeger also

challenges comments in rebuttal contrasting the credentials of Dr. Hoberman and Dr.


                                              20
No. 72392-8-1/21


Kellaher and the remark that Dr. Kellaher "fluff[ed] up a resume." But Jaeger did not

object to these remarks and cannot show prejudice that could not have been neutralized

by a curative instruction to the jury.

       Jaeger argues the prosecutor impermissibly shifted the burden of proof by

arguing he did not rebut the State's evidence and did not call a witness to testify about

the release plan. Because a defendant has no duty to present evidence, a prosecutor

cannot argue the burden of proof rests with the defendant or "comment on the

defendant's failure to present evidence." State v. Thorgersen, 172 Wn.2d 438, 453, 258

P.3d 43 (2011). However, a prosecutor is entitled to point out the improbability or lack

of evidentiary support for the defense theory of the case. Russell, 125 Wn.2d at 87.

The "mere mention that defense evidence is lacking does not constitute prosecutorial

misconduct or shift the burden of proof to the defense." State v. Jackson, 150 Wn. App.

877, 885-86, 209 P.3d 553 (2009). And a prosecutor can "state that certain testimony is

not denied, without reference to who could have denied it, and may comment that

evidence is undisputed." State v. Morris, 150 Wn. App. 927, 931, 210 P.3d 1025

(2009).5

       Here, the prosecutor argued, in pertinent part:

       [T]he most glaring weakness in the defense case was their abject,
       complete refusal to face head on in any substantive way the enormous
       volume of evidence that the State presented in this case that establishes
       these tremendous sexual deviancies of Mr. Jaeger.
               Pedophilia, of course, being the most important, the diaper fetish
       being very important, but the coprophilia and urophilia.

The argument that the expert witness who testified on behalf of Jaeger did not address

pedophilia, coprophilia, or urophilia did not improperly shift the burden of proof.


       5 Citation omitted.



                                             21
No. 72392-8-1/22



       Under the "missing witness" doctrine, a prosecutor can comment on the failure to

call a witness where the defense:

       [F]ails to call a witness to provide testimony that would properly be a part
       of the case and is within the control of the party in whose interest it would
       be natural to produce that testimony, and the party fails to do so, the jury
       may draw an inference that the testimony would be unfavorable to that
       party.

State v. Cheatam. 150 Wn.2d 626, 652, 81 P.3d 830 (2003) (citing State v. Blair, 117

Wn.2d 479, 485-86, 816 P.2d 718 (1991)). The inference arises only where "the

witness is peculiarly available to the party" and "within the party's power to produce,"

and "the testimony must concern a matter of importance." Cheatam, 150 Wn.2d at 652-

53.


       The prosecutor noted Jaeger did not call Dr. Steve Becker.

       Dr. Becker, the one that they hired to give them a treatment plan, said you
       need to hire four outside staff members, three eight-hour shifts to watch
       him 24[ hours a day]/7[ days a week]. One is to sit outside the door even
       when he sleeps at night and to make sure that door doesn't open.
              That's what their professional, who wasn't called to testify, thinks
       about the risk that is posed by this person sitting in front of you. You all
       know what's sitting in front of you.

       Noting the failure to call Dr. Becker was not improper. Jaeger's attorney told the

jury during opening statement that Dr. Becker would testify about the release plan.

              Dr. Steve Becker is in charge of the training of the members of the
       support group. You will hear from him. He has been providing home-
       based parent training and behavior management services for over twenty-
       five years. He has served on the board of directors for the Autism Society
       in Washington. He has a twelve-year career as a special education
       teacher with developmental disabilities and impulses.
              You will hear from [Dr. Becker] about the comprehensive release
       plan.




                                             22
No. 72392-8-1/23


       Jaeger argues the attorney committed misconduct by arguing sexual deviancy

enhances the "likelihood of reoffense."

       [A]s Dr. Hoberman testified, multiple paraphilias are a huge risk factor for
       enhanced risk of reoffense sexually.
              And that just comports with your common sense. The more deviant
       somebody is, the more they dwell on these various deviant practices and
       urges, the more sick they are, the greater likelihood of reoffense. That's
       the connection.


       Jaeger contends that because the likelihood of reoffense must be connected to

the type of mental abnormality and not simply the number of deviancies or the degree of

the deviancy, the argument misstated the law. Jaeger also claims the prosecutor's

statement relies on facts not in evidence.


       The comments did not misstate the law. To meet the burden of proving that

Jaeger meets the definition of "sexually violent predator," the State must prove he

"suffers from a mental abnormality or personality disorder which makes [him] likely to

engage in predatory acts of sexual violence." RCW 71.09.020(18). The attorney did

not rely on facts that were not in evidence. The attorney accurately summarized Dr.

Hoberman's testimony.6

Substantive Due Process

       Jaeger argues his civil commitment violates substantive due process because

juveniles are scientifically incapable of volitional control. Jaeger relies on Roper v.


       6 Dr. Hoberman testified, in pertinent part:
       Q.      What does the research indicate in terms of persons who are actually diagnosed
               with a paraphilic disorder relative to those who are not, in terms of risk of future
               reoffense?
       A.      Presence of a paraphilic disorder is associated with an increased risk of sexual
               offending.
       Q.      And the second is multiple paraphilias. What does the research indicate about
               persons who have multiple diagnosed sexual paraphilias?
       A.      It indicates that people who have more than one paraphilia or paraphilic disorder
               are, again, more likely to commit future sexual offenses, to reoffend.


                                                      23
No. 72392-8-1/24


Simmons. 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005), Graham v. Florida.

560 U.S. 48, 130 S. Ct. 2011, 176 L Ed. 2d 825 (2010). and State v. O'Dell. 183Wn.2d

680, 358 P.3d 359 (2015).

       In Roper and Graham, the Supreme Court addressed whether imposition of

harsh punishment for crimes committed by juveniles without taking into consideration

lack of volitional control violates the Eight Amendment to the United States Constitution.

Roper, 543 U.S. at 578; Graham, 560 U.S. at 82. In O'Dell. the Supreme Court held a

trial court "must be allowed to consider youth as a mitigating factor when imposing a

sentence on an offender." O'Dell. 183 Wn.2d at 696.

       Unlike a criminal prosecution, a commitment proceeding does not raise an issue

of cruel and unusual punishment under the Eight Amendment. And the Washington

Supreme Court recently held that "a juvenile adjudication for a sexually violent offense

is a predicate conviction for purposes" of the sexually violent predator statutes. In re

Pet. Anderson. 185 Wn.2d 79, 85, 368 P.3d 162 (2016).

       Because a juvenile adjudication is only evidence and not a basis for punishment,

and the inability to control sexual conduct while a juvenile is not relevant to his present

or future inability to control behavior, Jaeger cannot show a violation of substantive due

process. Although an individual must commit a crime of sexual violence to be civilly

committed, the State must prove the individual is a sexually violent predator and the jury

must find beyond a reasonable doubt that the individual currently "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).




                                             24
No. 72392-8-1/25


      Jaeger also claims a civil commitment is unconstitutional absent a finding that it

is "highly probable" he will reoffend. The Washington Supreme Court considered and

rejected this same argument in In re Petention of Brooks, 145 Wn.2d 275, 293-98, 36

P.3d 1034 (2001).

Cumulative Error


      Jaeger argues cumulative error warrants reversal. Because the cumulative error

doctrine "does not apply where the errors are few and have little or no effect on the

outcome of the trial," we disagree. State v. Weber. 159 Wn.2d 252, 279, 149 P.3d 646

(2006).

      We affirm the jury verdict finding the State proved beyond a reasonable doubt

that Jaeger is a sexually violent predator under chapter 71.09 RCW.




                                              %Jk^Mr
WE CONCUR:




                                                   l^ck^e^




                                            25
