                                                                          FILED 

                                                                        June 2, 2015 

                                                               In the Office of the Clerk of Court 

                                                             W A State Court of Appeals, Division III 



         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                            DIVISION THREE 


In re the Detention of:                      )
                                             )        No. 31107-4-III
ALBERT BROOKS,                               )
                                             )
                     Appellant.              )        UNPUBLISHED OPINION


       KORSMO, J. - Albert Brooks challenges his commitment as a sexually violent

predator, contending that the court erred in allowing evidence of uncharged actions and

that the evidence does not establish a current mental abnormality. We affirm.

                                        FACTS

       In September of 1978, Mr. Brooks attempted to kidnap a I7-year-old Spokane girl,

T.N., by approaching her from behind and holding a knife to her throat. However, T.N.

resisted and escaped. Four months later he attempted to kidnap I5-year-old S.N. in Post

Falls, Idaho, but she also escaped. That same night he kidnapped and raped I5-year-old

D.W. elsewhere in Post Falls. Charges in Spokane County relating to T.N. were dropped

following Mr. Brooks' indictment in Idaho. He then pleaded guilty to raping D.W. in

exchange for dismissal of the charges relating to S.N. Following his conviction, evidence

emerged that he also had molested a neighbor, II-year-old Da.L.

       Following his stint in prison, he resumed kidnapping and raping young girls.

Although living in Idaho, during visits to Spokane he kidnapped and raped I2-year-old
No. 31107-4-111
In re the Det ofBrooks


De.L. in 1986 and lO-year-old K.G. in 1988. He again reached an agreement and pleaded

guilty to charges relating to K.G. in exchange for dismissal of charges relating to De.L.

While he was still incarcerated on that conviction, the State brought this action in 2008 to

have Mr. Brooks committed as a sexually violent predator.

       The trial court conducted a pre-trial hearing to address the six noted prior

incidents. The evidence relating to the two convictions was admitted without objection,

but the parties contested the evidence relating to the four unadjudicated offenses.

Ultimately, the trial court struck evidence relating to Da.L., reasoning that the incident

was substantially different from the other acts and that the prejudicial effect outweighed

the probative value. The trial court admitted the evidence relating to T.N., S.N., and

De.L. The court reasoned that while the evidence was prejudicial, the prejudicial effect

did not substantially outweigh the compelling probative value of the evidence in light of

the State's heavy burden of proof.

       At trial, the State presented testimony from each ofthe five victims, along with

corroborating evidence from the respective police investigations into those incidents.

The State then presented testimony from Dr. Brian Judd, who diagnosed Mr. Brooks with

pedophilia and a rape paraphilia. 1 He based the diagnoses on the evidence from the past

crimes, his interviews with Mr. Brooks, and Mr. Brooks' treatment record while


       1 Thetechnical term used was "paraphilia, not otherwise specified, nonconsent."
Report of Proceedings at 359.

                                             2

 No. 311 07-4-III
 In re the Det ofBrooks


 incarcerated. Dr. Junn then testified about predictive actuarial and diagnostic

. instruments 2 that supported his conclusion that Mr. Brooks was likely to reoffend. The

 defense presented expert testimony from Dr. Theodore Donaldson, who questioned the

 validity of Dr. Judd's diagnoses and the accuracy of the predictive actuarial instruments

 used.

         The jury found that Mr. Brooks was a sexually violent predator. He then timely

 appealed to this court.

                                         ANALYSIS

         Mr. Brooks contends the trial court erred in admitting evidence of the prior,

 unadjudicated offenses and that the evidence was insufficient to support the jury's

 verdict. We address the claims in that order.

                       Admissibility ofPrior, Unadjudicated Offenses

         Mr. Brooks first argues that the trial court erred in admitting evidence concerning

 the three unadjudicated incidents, claiming that the trial court improperly considered the

 State's need to prove the elements of its case. He contends that without that

 consideration, the trial court's decision to admit this evidence is untenable because it




         2 The
             actuarial instruments employed were the Sex Offender Risk Appraisal Guide
 (SORAG), and the Static-99R, while the primary diagnostic instrument employed was the
 Structured Risk Assessment-Forensic Version (SRA-FV).

                                               3

No.31107-4-III
In re the Det ofBrooks


struck the equally prejudicial evidence relating to Da.L, and therefore should have struck

this evidence.

       Well-settled standards govern this appeal. Rulings admitting or excluding

evidence are reviewed for an abuse of discretion. In re Det. ofDuncan, 167 Wn.2d 398,

402, 219 P.3d 666 (2009). Discretion is abused when it is exercised on untenable

grounds or for untenable reasons. State ex reI. Carroll v. Junker, 79 Wn.2d 12, 26, 482

P.2d 775 (1971). Evidence of other crimes, wrongs, or acts are inadmissible to prove

character or to show an action in conformity therewith, but may be admitted for other

purposes. ER 404(b). In a proceeding to commit an individual as a sexually violent

predator, evidence of past sexual violence is highly probative of mental state and the

propensity for future sexual violence. In re Det. ofTuray, 139 Wn.2d 379, 400-02, 986

P.2d 790 (1999); In re Pers. Restraint ofYoung, 122 Wn.2d 1,54-55, 857 P.2d 989

(1993). However, otherwise admissible evidence may be excluded where its probative

value is substantially outweighed by the danger of unfair prejudice. ER 403. Evidence is

unfairly prejudicial where it creates an undue tendency to suggest a decision on an

improper basis. State   V.   Cronin, 142 Wn.2d 568, 584, 14 P.3d 752 (2000); State v.

Cameron, 100 Wn.2d 520,529,674 P.2d 650 (1983).

       With these standards in mind, the outcome is clear. The trial court necessarily had

to consider the State's burden of proof when determining the admissibility of evidence.

Evidence "tending to prove or disprove" is by definition probative. BLACK'S LAW

                                                4

No. 31107-4-II1
In re the Det ofBrooks


DICTIONARY, l397 (lOth ed. 2014). Since evidence is only inadmissible under ER 403

where the danger of prejudice substantially outweighs its probative value, it was proper

for the trial court to consider whether the evidence tends to prove the necessary elements

of the State's case.

       Mr. Brooks is correct in contending that the trial court did not distinguish the

prejudicial impact of the admitted evidence from the stricken evidence. However, the

evidence relating to T.N., S.N., and De.L. was admitted not because it was less

prejudicial, but because it was more probative. The trial court noted that the incident

involving Da.L. was different in nature from the other incidents, and therefore was less

probative to establish the petitioner's case,3 while the admitted evidence carried a

"strong, compelling probative value." The decision to admit or strike evidence under ER

403 involves balancing the potential for prejudice against the probative value of the

evidence. The trial court properly weighed those values against each other in making its

decision to admit the evidence at issue. Mr. Brooks has failed to point to any facts or law

that would render the trial court's grounds or reasoning untenable. There was no abuse of

discretion.




       3 The record readily supports that conclusion. Da.L. was the only victim of
molestation, the only victim who was not kidnapped, and the only victim who knew Mr.
Brooks prior to the actual or attempted sexual assault. It also was the only incident not
subject to a police investigation and not corroborated by other evidence.

                                             5

No.31107-4-III
In re the Det ofBrooks


                                 Sufficiency ofthe Evidence

       Mr. Brooks contends that the State failed to prove that he currently suffers from a

mental abnormality that would make him likely to reoffend. He contends that Dr. Judd's

diagnoses were unfounded because he made no diagnosis in 2003 and there was no

subsequent evidence of sexual deviancy during his incarceration. He also points to the

testimony from the defense expert questioning Dr. Judd's diagnoses and the actuarial

instruments used to demonstrate that he was likely to reoffend.

       In order to commit an individual as a sexually violent predator, the petitioner must

show that the individual has (1) committed a crime of sexual violence and (2) suffers

from a mental abnormality or personality disorder, which (3) makes the person likely to

engage in predatory acts of sexual violence ifnot confined in a secure facility. RCW

71.09.060(1); RCW 71.09.020(18). Here, Mr. Brooks contends that the evidence was

insufficient to establish that he suffers from a mental abnormality or that he is likely to

engage in further predatory acts of sexual violence.

       Although an action to commit an individual as a sexually violent predator is a civil

proceeding, the criminal standard of review applies to appeals challenging the sufficiency

of the evidence. In re Det. ofThorell, 149 Wn.2d 724, 744, 72 P.3d 708 (2003). Thus,

evidence is sufficient where, when viewed in the light most favorable to the State, a

rational trier of fact could find each essential element beyond a reasonable doubt. Id.




                                              6

No.31107-4-II1
In re the Det ofBrooks


Deference is given to the trier of fact on issues of credibility and persuasiveness of the

evidence. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004).

       The State relied primarily upon the testimony of Dr. Judd to establish that Mr.

Brooks suffers from a mental abnormality that makes him likely to commit further acts of

sexual violence. Dr. Judd diagnosed Mr. Brooks with pedophilia and a rape paraphilia

based on Mr. Brooks' past offenses and treatment record, as well as direct observation.

His testimony was supported by several actuarial and diagnostic instruments suggesting

Mr. Brooks was likely to reoffend. This evidence, taken together with the evidence of his

previous sexual violence and recidivism, was more than sufficient to sustain the jury's

determination that Mr. Brooks currently suffered from a mental abnormality and that he

was likely to engage in further predatory acts of sexual violence.

       Much of the argument presented by Mr. Brooks on appeal is merely a reiteration

of the defense expert's testimony challenging Dr. Judd's diagnoses and the predictive

accuracy of the actuarial instruments. These are solely issues of credibility and

persuasiveness that the trier of fact, not a reviewing court, must weigh. His argument that

Dr. Judd's diagnosis is factually without basis due to the fact that no diagnosis was made

in 2003 is unpersuasive. The record clearly indicates that Dr. Judd refrained from

making an initial diagnosis in order to further observe Mr. Brooks. He then diagnosed

Mr. Brooks only once he had sufficient information, based in part on those additional




                                             7

No. 31107-4-III
In re the Det ofBrooks


observations. These facts do not undercut Dr. Judd's diagnoses, but rather demonstrate

prudence in ascertaining all the pertinent facts prior to diagnosing a malady.

       There was sufficient evidence to support the conviction.

      Affirmed.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR: 





      Lawrence-Berrey, .




                                             8

