       IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
                           DIVISION ONE


In re the Detention of                              )           No. 79580-5-I
                                                    )
              FRANKLIN ABELLERA,                    )           UNPUBLISHED OPINION
                                                    )
                               Appellant.           )
                                                    )
                                                    )

        ANDRUS, A.C.J. – Franklin Abellera, who was found by a jury to be a sexually

 violent predator, appeals the denial of his motion for a new trial under CR 60(b)(3),

 claiming that newly discovered evidence, the audio portion of a surveillance video

 disclosed to Abellera in 2009, refuted the State’s contention that his most recent

 rape conviction was the result of a mental abnormality. The trial court did not

 abuse its discretion in finding that Abellera could have discovered the audio before

 trial, that the evidence was not material, and that the evidence would not have

 changed the outcome of his trial. We therefore affirm.

                                            FACTS

        On September 11, 2014, the State filed a petition to commit Franklin

 Abellera as a sexually violent predator (SVP) under chapter 71.09 RCW. On

 November 21, 2017, a jury found Abellera to be an SVP, and the trial court issued

 an Order of Commitment releasing Abellera to the custody of the Department of

 Social and Health Services “for control, care and treatment pursuant to


      Citations and pin cites are based on the Westlaw online version of the cited material.
No. 79580-5-I/2


RCW 71.09.060 until further order of this court.”               Abellera appealed his

commitment and this court affirmed in August 2019. In re Det. of Abellera, No.

77812-9-I (Wash. Ct. App. Aug. 12, 2019) 1. Our Supreme Court subsequently

denied review. In re Det. of Abellera, 194 Wn. 2d 1018, 455 P.3d 130 (2020).

          This court summarized the facts leading to Abellera’s commitment order:

          In 1981, the State charged Abellera with 10 sex offenses committed
          against six different women. Abellera pleaded guilty to burglary in the
          first degree, indecent liberties with forcible compulsion, assault in the
          second degree, and rape in the second degree. The trial court
          suspended Abellera’s sentence on the condition that he complete an
          inpatient sex offender treatment program at Western State Hospital.
          In 1989, program staff recommended that the court determine
          Abellera successfully completed the program and release him.

          In April 1990, after his discharge from the program, Abellera began
          a job at a bakery. During this time, Abellera engaged in behavior that
          increased the risk of reoffending—such as consuming pornography,
          drinking alcohol, and hiring prostitutes.

          In 2009, Abellera drove to a high prostitution area to hire a prostitute.
          A woman, K.W., approached Abellera and asked him for a ride. Once
          K.W. was in the car, Abellera drove to a dead-end street and raped
          her.

          On May 27, 2010, Abellera pleaded guilty to rape in the third degree
          and assault in the second degree. The court sentenced Abellera to
          five years’ imprisonment.

          On September 11, 2014, while Abellera was serving his sentence,
          the State filed a Petition for Commitment as a Sexually Violent
          Predator.

          Abellera’s SPV [sic] trial began in 2017. The State presented an
          expert, Dr. Dale Ray Arnold, who diagnosed Abellera with “other
          specified paraphilic disorder” and antisocial and avoidant personality
          traits that exacerbated his disorder. Dr. Arnold summarized the
          details of six sexual assaults Abellera committed in the 1980s and
          estimated that, in total, Abellera had committed 31 to 35 rapes and
          attempted rapes. In Dr. Arnold’s opinion, Abellera had a mental
          abnormality such that he would not be able to control his urge to force

1
    https://www.courts.wa.gov/opinions/pdf/778129.pdf.

                                               -2-
No. 79580-5-I/3


          a woman into nonconsensual sex if presented with the opportunity in
          the future.

          Abellera presented an expert, Dr. Joseph Plaud, who testified that
          Dr. Arnold’s diagnosis was “made up.” Dr. Plaud additionally stated
          that Abellera believed K.W. was a prostitute at the time of the assault.
          Dr. Plaud opined that the 2009 offense differed so significantly from
          the 1980s offenses that it did not demonstrate a mental abnormality
          or lack of volitional control.

          The jury reached a verdict finding Abellera to be an SVP. The trial
          court issued an Order of Commitment.

Abellera, No. 77812-9-I, slip op. at 2-3.

          On November 21, 2018, while his appeal was pending, Abellera filed a

motion for a new trial under CR 60(b)(3), 2 or in the alternative, for an evidentiary

hearing. Abellera claimed that he had discovered new evidence—audio from a

2009 security video of the interior of the convenience store where Abellera picked

up K.W. He argued that this audio demonstrated that on the night of the rape,

K.W. was working as a prostitute and that Michael Preston, the man accompanying

K.W., was her pimp. Abellera’s defense at trial was that he had sex with K.W. and

then assaulted her when he suspected he was followed by Preston and being set

up to be robbed by the two of them. But at the time of trial, he had no evidence to

prove that K.W. had actually agreed to sex for money, other than his own




2
    CR 60(b)(3) states:

          (b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence;
          Fraud; etc. On motion and upon such terms as are just, the court may relieve a
          party or the party's legal representative from a final judgment, order, or proceeding
          for the following reasons:

          ...

          (3) Newly discovered evidence which by due diligence could not have been
          discovered in time to move for a new trial under rule 59(b)

                                                 -3-
No. 79580-5-I/4


testimony. Abellera argued that this audio proved that his encounter with K.W.

was simply a “prostitution agreement gone wrong,” rather than the result of an

uncontrollable urge to engage in sexual violence.

       The 2009 surveillance footage at issue showed an exchange that occurred

between Preston and the convenience store clerk inside the store. In the audio,

not previously accessed by any party, Preston can be heard trying to sell sex from

one of his “girls” to the clerk:

       Preston: Hey. You want a girl?
       Store Clerk: Tonight?
       Preston: . . . You know that little blonde one?
       Store Clerk: (Inaudible)
       Preston: Starting at 250.
       ...
       Store Clerk: Not today.
       ...
       Preston: What about a hundred bucks?
       ...
       Store Clerk: Not today.
       Preston: Oh, okay.
       Store Clerk: I will come talk to you.

       [Preston exits, and later re-enters the store. Preston gives clerk
       some change.]
       ...
       Preston: Hey, check it out. I got one of my girls out working. Can I
       get a pack of cigarettes until she gets back, then I will give you the
       rest of the money?
       Store Clerk: I can’t do that.
       ...
       Preston: But she’s out there getting some money right now.

The “little blonde one” to which Preston referred is not identified by name. Abellera

contends that Preston was referencing K.W.

       Abellera conceded that the State produced this surveillance video to his

criminal attorney at the time he was charged with and pleaded guilty to rape and



                                        -4-
No. 79580-5-I/5


assault in 2009 and that the audio file was a part of what had been disclosed. But

he maintained that the audio was “unavailable” because counsel could not access

it with the media players on counsel’s computers. The State argued that Abellera’s

counsel in the SVP case could have discovered it before the 2017 SVP trial. It

thus contended that Abellera could not demonstrate the evidence was “newly

discovered” under CR 60(b)(3).

       On January 2, 2019, the trial court denied Abellera’s motion for a new trial

and for an evidentiary hearing. It found that the surveillance audio was not newly

discovered evidence, that the audio could have been found before trial with due

diligence, that the evidence was not material to the issues in the SVP trial, and that

it was cumulative evidence. It further found that the audio evidence would not have

changed the result at trial. Abellera unsuccessfully moved for reconsideration of

the trial court’s January 2 order. Abellera appeals.

                                     ANALYSIS

       We review a trial court’s decision on a motion to vacate under CR 60 for

abuse of discretion. Jones v. City of Seattle, 179 Wn.2d 322, 360, 314 P.3d 380

(2013). A trial court abuses its discretion if its decision is unreasonable or based

on untenable grounds or reasons. Wagner Dev. Inc. v. Fid. & Deposit Co. of

Maryland, 95 Wn. App. 896, 906, 977 P.2d 639 (1999). “Under CR 60(b)(3), a

judgment may be vacated if a party produces new evidence that it could not have

discovered using due diligence in time to move for a new trial.” Id.

       The party seeking a new trial under CR 60(b)(3) must establish that the

evidence “(1) would probably change the result if a new trial were granted, (2) was



                                        -5-
No. 79580-5-I/6


discovered since trial, (3) could not have been discovered before the trial by the

exercise of due diligence, (4) is material, and (5) is not merely cumulative or

impeaching.” Jones, 179 Wn.2d at 360. “The absence of any one of the five factors

is grounds for the denial of a new trial.” State v. Williams, 96 Wn.2d 215, 223, 634

P.2d 868 (1981).

       The trial court did not abuse its discretion in finding that the audio could

have been discovered by Abellera’s counsel before trial through the exercise of

due diligence. Whether an attorney has exercised due diligence is a question of

fact to be determined from the circumstances of the case. Roe v. Snyder, 100

Wash. 311, 314, 170 P. 1027 (1918). When a decision to deny a CR 60 motion

hinges on the trial court’s resolution of a question of fact, our review for an abuse

of discretion turns on whether the trial court made a decision supported by the

record and whether its ultimate decision was reasonable or within the realm of

acceptable choices. Mitchell v. Wash. State Inst. of Public Policy, 153 Wn. App.

803, 822, 225 P.3d 280 (2009).

       The factual record supports the trial court’s finding that the evidence could

have been discovered before trial. Abellera’s newly appointed counsel, Kathryn

Ross, conceded below that Abellera’s SVP attorneys had the video in their

possession because the State produced it during discovery. Ross argued that the

audio file was inaccessible to these attorneys because when the video was played

using incompatible media players, the only audible sound was static. Although it

was obvious from the video that Preston and the store clerk were talking to each




                                        -6-
No. 79580-5-I/7


other, Ross argued that there was no decipherable audio and the static “did not

suggest to me, immediately, that there was any speaking in there.”

      Ross informed the trial court that she received an email from Dr. Dan

Yanisch, the psychologist performing Abellera’s annual review at the Special

Commitment Center, questioning Abellera’s credibility and that of K.W. over

whether he had in fact raped her. Ross stated that Dr. Yanisch’s email made her

“very determined” to find “anything.” When she reviewed the video, however, her

court-issued computer used an outdated version of Windows Media Player to play

the video. At that point, she realized that there was audio on the video, although

of poor quality. She then asked a video expert to enhance the audio quality. Only

then did she discover that Preston could be heard offering to sell the store clerk

one of his “girls,” presumably K.W., in exchange for money.

      We have no reason to doubt Ross’s testimony as to how and why she

uncovered the existence of the audio. But even if we assume that Abellera’s trial

counsel did not discover the audio file before trial because of a media player

incompatibility, the record does not support the contention that Abellera’s trial

counsel could not have discovered the audio file if they had exercised the due

diligence Ross demonstrated. Neither of the trial attorneys submitted declarations

as to whether they watched the video, attempted to decipher the static when they

could see Preston and the store clerk verbally communicating with one another, or

tried an alternate media player like Ross did. There is actually no evidence to

demonstrate what steps Abellera’s SVP counsel took to investigate Abellera’s

version of events surrounding his interaction with K.W. Although Ross testified



                                      -7-
No. 79580-5-I/8


that she talked with the SVP trial attorneys and that one of them told her that their

defense strategy would have been different had this audio evidence been

uncovered earlier, this evidence does not establish that they exercised due

diligence in investigating possible strategies to the SVP allegations.

       Abellera contends that his SVP attorneys did not have a duty to investigate

the surveillance footage because the State erroneously and “unequivocally”

represented to them and the trial court that there was no evidence supporting his

claim that K.W. was a prostitute. He compares his case to Kurtz v. Fels, 63 Wn.2d

871, 389 P.2d 659 (1964), in which a plaintiff sued for negligence following a car

accident, claiming, among other injuries, that the accident caused her to

experience fainting spells. The jury found in favor of the plaintiff and awarded

damages.    Id. at 872.    The defendant filed a motion for a new trial when it

discovered evidence from the plaintiff’s former husband and numerous friends that

the plaintiff suffered from fainting spells for years before the accident. Id. at 873.

The plaintiff argued this evidence could have been found before trial with due

diligence. Id. The trial court disagreed and granted the defendant’s request for a

new trial, concluding that the defendant had no reason to question the plaintiff who,

with firsthand knowledge, testified under oath that she had not suffered from

fainting spells before the accident.    Id. at 875.   The Supreme Court agreed,

reasoning that counsel had the right to rely on the plaintiff’s clear and unambiguous

testimony given under oath and, “in the exercise of reasonable diligence, is not

required to look behind the statements.” Id.




                                        -8-
No. 79580-5-I/9


       This case is distinguishable from Kurtz because Abellera’s SVP counsel

had notice of circumstantial evidence that K.W. was in fact a prostitute. They had

sworn statements from witness Deborah Herman, who called 911 when she found

K.W. wandering the streets after she had been raped and who accompanied K.W.

to the hospital. Herman told police she thought K.W. was a prostitute because of

her outfit, and because K.W. had a purse filled with condoms.

       And counsel had notice from Abellera himself that K.W. had offered him sex

for money. In an interview with the State’s expert, Dr. Arnold, Abellera insisted

that he did not rape K.W. but admitted to assaulting her. Abellera’s SVP counsel

also knew that Abellera chose to plead guilty to the rape even though he protested

his innocence. Abellera told Dr. Arnold in a 2016 interview that he chose to plead

guilty to the rape because he knew he was going to go to prison for the assault

and “because of [his] past and because of the preponderant weight of the

[evidence],” he felt taking the plea was in his best interest.

       The State agreed that Abellera could testify about his version of events.

The record from Abellera’s direct appeal reveals that the State played Abellera’s

video deposition for the jury and learned of his version of events, and that the State

referred to this testimony in closing argument.        Abellera’s expert, Dr. Plaud,

reiterated Abellera’s version of events to the jury, and testified that, based on this

information, he felt the 2009 offense was strikingly different from the rapes Abellera

committed in the early 1980s:

       Mr. Abellera says, and he’s consistent about this, I’m not saying he’s
       right or if it’s true, but what he says is she was a prostitute, something
       went wrong, somebody else showed up, I wasn’t going to pay her,
       but there was a video of me kicking her out of the car, and I did

                                         -9-
No. 79580-5-I/10


       maybe hurt her when I tried to get her out of my car. So that’s his
       version, which would not be consistent with what he was doing in the
       80’s, even though technically it’s a sexual offense. So functionally
       it’s different.

       Abellera’s trial attorneys knew of their client’s version of events before trial

because they discussed it with the court in evaluating the relevance of the

evidence:

       We have no intent of eliciting testimony that this woman was a
       prostitute. There’s no – we have no evidence that she was a
       prostitute.

       It’s not really relevant to the issue of whether or not our client
       committed [an] offense against her and whether or not being a
       prostitute makes our client more or less likely to be a sexually violent
       predator, because, really, that’s the only issue here. And so we’re
       not intending to infer one way or another that that is actually true with
       respect to this woman.

Unlike the defendant in Kurtz, Abellera’s attorneys were aware of the factual

contention that K.W. had offered Abellera sex in exchange for money. Abellera’s

attorneys had the opportunity to investigate that factual issue to determine if it was

credible or relevant, and they ultimately concluded it was not probative of the issue

of whether Abellera was a sexually violent predator.

       Had Abellera’s SVP counsel deemed Abellera’s version of events to be

credible, counsel could have and likely would have investigated Abellera’s

contention that K.W. was a prostitute and that Preston was her pimp. It appears

on this record that Abellera’s CR 60 counsel only needed to play the video on a

different media player to realize that it contained audio. This evidence supports

the trial court’s finding that the evidence could have been discovered with due

diligence.



                                        - 10 -
No. 79580-5-I/11


       The record also supports the trial court’s finding that K.W.’s status as a

prostitute was immaterial as to whether Abellera was an SVP. Abellera’s SVP

counsel conceded as much at trial. Det. of Abellera, slip op. at 7. The State

reminded the trial court of this concession during the CR 60 hearing.

       Even if defense counsel had not conceded this point, the trial court’s

determination of immateriality is supported by the record. Dr. Arnold opined that

Abellera suffers from a mental abnormality or personality disorder that makes it

likely he would engage in predatory acts of sexual violence. It is unclear how the

fact that one of Abellera’s victims was a prostitute would change that opinion.

Dr. Arnold reviewed Abellera’s entire criminal history, including sexually motivated

crimes committed between 1980 and 1981, resulting in 10 separate criminal

charges involving six different women. Dr. Arnold also reviewed the 2009 rape

based on K.W.’s account of events and Abellera’s admission in the guilty plea that

he forced himself onto K.W. despite her repeated requests for him to stop. He

considered Abellera’s admissions of “sexually deviant fantasies and urges to rape,

his pattern of committing or attempting to act upon his urges, [and] the fact that

one of his prior rapes occurred in a car,” as well as K.W.’s description of the 2009

crime to reach his conclusions. There is nothing in the audio that related to

Abellera’s mental abnormality or personality disorder, his past sexual violence, his

rape of K.W., or Dr. Arnold’s opinion that Abellera is likely to commit sexual

violence in the future. This record supports the trial court’s conclusion that the

evidence was not material.




                                       - 11 -
No. 79580-5-I/12


       Finally, based on this record, the trial court also reasonably determined that

the audio would not have changed the outcome of the trial. Abellera’s version of

the 2009 rape was presented to and rejected by the jury. In closing arguments,

the State dissected Abellera’s story and explained to the jury why it made no

sense. First, Abellera pleaded guilty to rape, apologized to K.W. at his sentencing

hearing, and never filed a motion to withdraw his plea. Second, K.W. had no

criminal history or contact with law enforcement for prostitution.        And finally,

Abellera’s story that K.W. agreed to have sex with him for money did not make

sense because Abellera admitted that he lacked funds to pay her, and he

contended K.W. agreed to let him go to an ATM to get cash afterward, a difficult

proposition to accept because “prostitutes don’t accept IOUs.” Even if K.W. were

a prostitute, the State effectively argued that this fact would be irrelevant, noting

that “just because someone’s a prostitute doesn’t mean they can’t get raped.” The

State also explained why Abellera’s robbery conspiracy made no sense either: if

K.W.’s pimp had followed Abellera as he drove away with K.W., with plans to rob

him, why did K.W. have to walk alone in the street looking for help after Abellera

pushed K.W. from his car? And even if K.W. was a prostitute and agreed to have

sex for money, it did not explain why Abellera felt he had to, and admitted to,

forcing her to have sex against her will with sufficient force to cause K.W. to sustain

vaginal injuries, a point that the State argued to the jury.

       The trial court did not abuse its discretion in concluding that the audio, even

if it supported Abellera’s story that K.W. was a prostitute, would have had no effect

on the outcome of the trial. The trial judge who denied Abellera’s motion for a new



                                        - 12 -
No. 79580-5-I/13


trial also presided over the SVP jury trial and had the opportunity to hear all the

evidence. We defer to a trial court’s assessment of the evidence because “the trial

judge who has seen and heard the witnesses is in a better position to evaluate and

adjudge then can we from a cold, printed record.” State v. Hawkins, 181 Wn.2d

170, 179, 332 P.3d 408 (2014) (quoting State v. Wilson, 71 Wn.2d 895, 899, 431

P.2d 221 (1967)).

      We thus conclude that the trial court did not abuse its discretion in denying

Abellera’s CR 60(b)(3) motion.     We similarly deny Abellera’s request for an

evidentiary hearing.

      Affirmed.




WE CONCUR:




                                      - 13 -
