      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                             )
 In re the Detention of                      )         No. 71292-6-1
                                             )                                                   C")
 MARK A. BLACK,                              )        DIVISION ONE                Ts."
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                                             )        FILED: March 27, 2017
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                                                                                     IN)

       COX, J. — Mark Black challenges his order of commitment as a sexually

violent predator. In our August 2015 decision, we reversed the order on due

process grounds because he had not been present during portions of jury

selection.1

       The supreme court granted the State's petition for review and denied

Black's.2 The supreme court then reversed our decision on the basis that Black

waived his right to be present during the relevant portions of jury selection. The

court remanded the case to this court for further proceedings consistent with its

opinion.

       Two issues remain for decision. First, whether there was sufficient

evidence to prove that Black's disorders caused him serious difficulty controlling

his behavior. Second, whether the court abused its discretion in admitting certain




           In re Det. of Black, 189 Wn. App. 641, 357 P.3d 91 (2015).

      2 In re Det. of Black, No. 92332-9, slip op. at 1 (Wash., Dec. 15, 2016),
https://www.courts.wa.gov/opinions/pdf/923329.pdf.
No. 71292-6-1/2

expert opinion. We hold there was sufficient evidence to support the jury's

decision. And there was no evidentiary error requiring reversal. We affirm.

       We need not repeat here the factual and procedural background detailed

in our prior opinion. Rather, we only discuss facts insofar as necessary to

address the remaining issues for decision.

                         SUFFICIENCY OF THE EVIDENCE

       Black argues that the State failed to prove that each of the alternative

means of commitment caused the lack of volitional control required for civil

commitment. We hold there was sufficient evidence to support the jury's verdict.

       The right to a unanimous jury verdict applies in SVP commitment

proceedings.3 When the defendant stands charged with and the jury is instructed

on an alternative means crime, the jury must determine unanimously the means

by which the defendant committed the crime.4

       To show the mental illness element for an SVP determination, the State

can present proof that the respondent "suffers [either]from a 'mental abnormality'

or proof that such a respondent suffers from a 'personality disorder.'"5 These

"are the two factual alternatives set forth in the relevant statute."6




       3 In   re Det. of Halgren, 156 Wn.2d 795, 809-11, 132 P.3d 714(2006).

       4 State   v. Owens, 180 Wn.2d 90, 95, 323 P.3d 1030 (2014).

       5In re Det. of Pouncy, 144 Wn. App. 609, 618, 184 P.3d 651 (2008)
(quoting HaIgren, 156 Wn.2d at 811).

       6   Id.
                                              2
No. 71292-6-1/3

      "[W]hen there is sufficient evidence to support each of the alternative

means of committing the crime, express jury unanimity as to which means is not

required."7 But the jury's finding must be unanimous when there is insufficient

evidence to support any individual alternative means.8

       Thus, where a rational trier of fact could have found beyond a reasonable

doubt that the defendant suffered from both a mental abnormality and a

personality disorder, the defendant's constitutional right to jury unanimity is not

violated.9

       A "mental abnormality" is defined as "a congenital or acquired condition

affecting the emotional or volitional capacity which predisposes the person to the

commission of criminal sexual acts in a degree constituting such person a

menace to the health and safety of others."1°

       Evidence is sufficient to support a guilty verdict if, viewed "in the light most

favorable to the State, any rational trier of fact could have found guilt beyond a

reasonable doubt."11 In so construing the evidence, we draw "all reasonable

inferences ... in favor of the State."12 We interpret it "most strongly against the




       7 Owens, 180 Wn.2d        at 95.

       8 Id.


       9 1:22L_Incy,   144 Wn. App. at 620.

       19   RCW 71.09.020(8).

       11   State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068(1992).
       12   id.

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No. 71292-6-1/4

defendant."13 And we defer to the trier of fact on issues of conflicting testimony,

credibility of witnesses, and the persuasiveness of evidence.14

       Here, through the testimony of Dr. Dale Arnold, the State presented

sufficient evidence to prove both alternative means to support commitment—

personality disorder and mental abnormality.

       First, Dr. Arnold testified that Black has a personality disorder not

otherwise specified (NOS)with antisocial and narcissistic traits.15 These traits

include a sense of entitlement, manipulation of others, deceiffulness, lack of

remorse, and irresponsible behavior.16 Dr. Arnold made this diagnosis after an

evaluation of Black and consultation with the Diagnostic and Statistical Manual of

Mental Disorders 1V-Text Revision (DSM-1V TR).17

       Dr. Arnold further testified that Black's personality disorder was "severe"

according to the psychopathy checklist.15 And he testified that individuals who

score in the high range of the psychopathy checklist, like Black,"tend to reoffend

more quickly" and "have more violent offenses."19 He also testified that Black's




       13   1d

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

       15   Report of Proceedings Vol. 5(Oct. 28, 2013) at 382.

       16   Id. at 405-06.

       17 Id.


       18   Id. at 406.

       18   Id. at 408-09, 427.
                                             4
No. 71292-6-1/5

personality disorder had a "direct link" to sexual reoffending.2° He opined that

this was because Black likes "the adventure.. . of finding someone on the

internet" and "the process of grooming the child for victimization."21 Further, Dr.

Arnold testified Black's personality disorder caused Black serious difficulty

controlling his behavior because he lacks concern for others and enjoys

exploiting others.22

       Second, the State presented sufficient evidence to prove that Black has a

mental abnormality. Specifically, the evidence showed that Black has two mental

abnormalities—sexual sadism and paraphilia NOS, persistent sexual attraction to

pubescent females (paraphilia NOS).23 Dr. Arnold also made these diagnoses

after the evaluation of Black and consultation with the DSM-IV.24

       Dr. Arnold based his paraphilia NOS diagnosis on the fact that Black was

"sexually excited by the budding breasts [of young females]."25 Dr. Arnold

testified that this paraphilia caused stress and dysfunction in Black's life.26 Dr.

Arnold opined that paraphilia NOS is a mental abnormality that affected Black's




       20 Id. at 427.

       21   Id. at 427-28.

       22   Id. at 444-45.

       23   Id. at 382.

       24   Id.

       25   Id. at 430.

       26   Id. at 433.
                                             5
No. 71292-6-1/6

emotional and volitional contro1.27 And he testified that it caused Black serious

difficulty in controlling his sexually violent behavior.28

       Dr. Arnold also testified that Black has sexual sadism.29 He based this

diagnosis on the fact that Black was sexually aroused by abuse.3° He testified

that Black continued to have sex with girls even though they were crying and did

not like it.31 Further, Dr. Arnold testified that Black told him that this caused

dysfunction in his relationships.32 Dr. Arnold opined that sexual sadism is also a

mental abnormality that affected Black's emotional and volitional contro1.33 And

he testified that it also caused Black serious difficulty in controlling his sexually

violent behavior.34

       In sum, through the testimony of Dr. Arnold, the State presented sufficient

evidence to establish both alternative means for the jury to convict.

       Black argues that there was no evidence that the personality disorder

caused him serious difficulty controlling his sexually dangerous behavior. This is




       27   Id. at 441,442-44.

       28   Id. at 444.

       29   Id. at 382, 436.

       30 Id. at 439.

       31   Id. at 438.

       32   Id.

       33   Id. at 441-44.

       34   Id. at 444.

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No. 71292-6-1/7

incorrect. Dr. Arnold expressly testified that Black's personality disorder "in and

of itself" caused him serious difficulty controlling his behavior, due to the fact that

Black lacks concern for others and enjoys exploiting others.35

       Black relies on State of New York v. Donald DD.36 to argue that "[m]erely

committing similar offenses more than once does not show the offender is unable

to control predatory sexual conduct due to a personality disorder."37 There, the

court held that a diagnosis of antisocial personality disorder and evidence of

sexual crimes, alone, is an insufficient basis for commitment.38 It did so because

such a diagnosis does "not distinguish the sex offender whose mental

abnormality subjects him to civil commitment from the typical recidivist convicted

in an ordinary criminal case."39

       In contrast, there was more than just evidence of Black's personality

disorder and evidence of sexual crimes in this case. Specifically, Dr. Arnold

testified that there was a "direct link" between Black's personality disorder and

sexual reoffending, and he explained how the disorder affected Black's ability to

control his sexually dangerous behavior.40 In short, Donald DD. is

distinguishable.



       35   Report of Proceedings Vol. 5(Oct. 28, 2013) at 445.

       36 24      N.Y.3d 174, 21 N.E.3d 239, 996 N.Y.S.2d 610 (2014).

       37 Appellant's    Opening Brief at 44.

       38   Donald DD,24 N.Y.3d at 190.

       39   Id.
       40 Report of Proceedings Vol. 5(Oct. 28, 2013) at 427.

                                                7
No. 71292-6-1/8

       Black next argues that his actions toward teenage girls did not constitute a

mental abnormality over which he lacked volitional control. He argues that

"[w]hile he took advantage of teenagers who trusted him, he exhibited control

over these behaviors."'" But Dr. Arnold testified to the contrary. He testified that

the mental abnormalities affected Black's volitional control "in that[Black is]

unable to sort of appreciate the harmfulness of his actions and to keep himself

from doing the very same thing."42

       This argument is wholly unpersuasive. It presumes that we reweigh

evidence on appeal. We do not. There was sufficient evidence to sustain on

appeal the jury's verdict as the finder of fact at trial.

       Finally, Black argues that Dr. Arnold could not explain how the sexual

sadism disorder caused him serious difficulty controlling his sexually sadistic

behavior. But as just stated, Dr. Arnold testified that Black's mental

abnormalities, which included sexual sadism, affected his volitional control by

preventing him from appreciating the harmfulness of his actions and keeping

himself from doing the very same thing.

       In sum, Black's arguments are not persuasive. There was sufficient

evidence to support the jury's verdict. And there is simply no unanimity problem.




       41   Appellant's Opening Brief at 41.

       42   Report of Proceedings Vol. 5(Oct. 28, 2013) at 443.
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No. 71292-6-1/9

                              EVIDENTIARY RULINGS

       Black finally argues that the trial court improperly admitted expert opinion

testimony that he suffers from paraphilia NOS. He also contends that the trial

court deprived him of his ability to challenge this diagnosis when it excluded

evidence of "hebephilia." We hold that any evidentiary error in this respect was

harmless.

       We need not address Black's arguments based on the claimed failure to

satisfy the Frye standard.43 Even had the evidence failed to meet that standard,

Black must also show its admission resulted in prejudice." An error is prejudicial

if "'within reasonable probabilities, had the error not occurred, the outcome of the

trial would have been materially affected.'"45 When the trial court improperly

admits evidence, but the jury can review alternative evidence establishing the

same element, the improper admission is likely harmless.46

       Here, the admission of the paraphilia NOS diagnosis was harmless. That

is because this was not the only diagnosis ascribed by Dr. Arnold. As we already

discussed in this opinion, Dr. Arnold also diagnosed Black with sexual sadism

and a personality disorder. There was sufficient evidence to support each of

these diagnoses. Further, Dr. Arnold testified that any of these diagnoses in and

of itself was sufficient to cause Black serious difficulty in controlling his behavior.



       43   In re Det. of Thorell, 149 Wn.2d 724, 72 P.3d 708 (2003).

       44   In re Det. of West, 171 Wn.2d 383,410, 256 P.3d 302(2011).

       45   Id. (quoting State v. Neal, 144 Wn.2d 600, 611, 30 P.3d 1255 (2001)).

       46   Id. at 410-11.
                                              9
No. 71292-6-1/10

In short, given this evidence, there is not a reasonable probability that the

outcome of the trial would have been different because of the admission of the

challenged evidence.

       The admission of the evidence was harmless, given the evidence that

Black suffered from sexual sadism and a personality disorder, each of which was

sufficient to cause Black serious difficulty in controlling his behavior.

       We affirm the order of commitment.
                                                             6(77(,,T
WE CONCUR:



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