                                                                           FILED 

                                                                       February 4, 2016 

                                                                 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 the Matter of the Detention of             )
                                              )         No. 30845-6-III
STEVEN G. RITTER,                             )
                                              )
                                              )
                     Petitioner.              )         OPINION PUBLISHED IN PART


       KORSMO, J.   - After remanding for a hearing following our initial consideration of

this appeal, we now consider Steven Ritter's challenges to the jury's decision to commit

him as a sexually violent predator. In the published portion of this opinion, we address

his challenge to the dynamic risk assessment tool used at trial. We affirm.

                                          FACTS

       The salient facts in this appeal largely concern procedural matters. Additional

facts related to the issues considered in the unpublished portion of this opinion will be

addressed in conjunction with those arguments.

       Mr. Ritter, at age 15, sexually assaulted his 46-year-old aunt. He spent about 30

months injuvenile sex offender treatment in Oklahoma and was released at age 18.

Within the year, he molested a 9-year-old girl at a public library in Yakima. He was

convicted of that offense and served his sentence at the Twin Rivers facility in Monroe.
No. 30845-6-III
In re Ritter


There were additional uncharged incidents of sexual misconduct as a juvenile that were

admitted into evidence at trial.

       When his sentence was drawing to a close, the State had Mr. Ritter evaluated by

Dr. Dale Arnold. Dr. Arnold applied three actuarial instruments to Mr. Ritter's static risk

factors and his own clinical judgment to Mr. Ritter's dynamic risk factors. Dr. Arnold

concluded in written reports in 2006 and 2009 that Mr. Ritter met the criteria of a

sexually violent predator (SVP). In late 2011, after the State had filed SVP proceedings

against Mr. Ritter, Dr. Arnold revised his reports to apply the forensic version of the

Structured Risk Assessment-Forensic Version (SRA-FV) to Mr. Ritter's dynamic

factors.

       Mr. Ritter unsuccessfully tried to exclude use ofthe SRA-FV and two of the static

instruments at trial. After he was committed by the jury, Mr. Ritter timely appealed to

this court. His appeal raised four issues, including a challenge to the use of the SRA-FV.

We exercised our authority to remand for a Frye' hearing on that issue. In re Det. of

Ritter, 177 Wn. App. 519, 520-21, 312 P.3d 723 (2013).

       Both sides presented expert testimony at the remand hearing. The State presented

the testimony of Dr. Amy Phenix to establish the inception and validity of the SRA-FV.

The defense presented two experts: a statistician, Dr. Dale Glaser, and a psychologist, Dr.



       'Frye v. United States, 54 App. D.C. 46,293 F. 1013 (1923).

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No. 30845-6-III
In re Ritter


Brian Abbott. The basics of forensic testing were not in dispute. The first step in

analyzing a sexual offender's risk of future reconviction is to score that person on one or

more of several actuarial instruments. These are widely used, validated, and well-

established since at least 1998. They look at the presence or absence of various static

factors that affect the risk of sexual reoffense. These static factors are immutable, and

consist primarily of facts about the offender and the offense committed, such as number

of offenses and the sex ofvictim(s).

       The static factors were established individually by various studies2 looking at

populations of sex offenders that were released from prison, and then correlating

reoffense with the presence or absence of the various factors. In 1998, Dr. Karl Hanson

published a meta-analytic study, compiling all the existing studies into a cohesive, single

framework. This gave rise to the Static-99 actuarial instrument. Subsequent studies and

analysis have further refined the factors and given rise to several newer instruments that

may incorporate additional factors or structure the analysis differently. All of these

instruments have moderate predictive accuracy; employing additional instruments

incrementally increases that accuracy.

      Because an analysis based only on static risk factors will never change, the

psychological community began looking for dynamic factors that could be used both to


      2 The impetus for these studies arose out of other studies that showed that
treatment did no better than random in predicting reoffense.

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No. 30845-6-111
In re Ritter


refine the risk analysis and help guide treatment. In 2002-2003, Drs. Thornton and

Beecham published a series of analytical papers that served as a methodological

foundation for the SRA-FV. They looked at each dynamic factor as falling into one of

four constructs: sexual interest, relational style, self-management, and attitudes. 3 They

posited that in order to have any degree of accuracy, a comprehenSIve analysis would

need to examine at least three of those constructs. They then developed the SRA-FV to

examine the first three constructs. 4

       In 2010, a meta-analytic study was published on the research into dynamic risk

factors comparable to the 1998 study and provided the statistical basis for developing an

instrument based on those dynamic factors. The SRA-FV was released to the

psychological community for use that same year, essentially providing a structured

application of the meta-analysis. Subsequently, in 2013, Dr. Thornton published a peer-

reviewed article establishing the development and validity of the SRA-FV.

       A professional administering the SRA-FV looks to their diagnostic interactions

with the individual and to facts available in that person's record, and then scores each

dynamic risk factor against an operational guideline, from 0 to 2: O-the factor is absent;



       3 For example, sexual interest in children or sexual violence falls into the sexual
interest construct, while impulsivity or response to authority falls into the self­
management category.
       4Attitudes were omitted because there is no valid way of determining their
presence or absence in an individual.

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No. 30845-6-II1
In re Ritter


weighted and summed to arrive at three domain scores, corresponding to those three

constructs the instrument is assessing. Higher overall scores on each domain correspond

to a higher absolute probability ofreoffense. However, the SRA-FV does not return any

actual probability of reoffense, but is instead used in conjunction with the Static-99R.

       Because the statistical data underpinning the Static-99 was derived from many

different studies, those studies were amalgamated in order to create a large population

base. However, different data sets involve different types of people. Consequently, as

the Static-99 was refined, the instrument was adjusted to account for the varying inherent

recidivism rates in the studied populations by separating the studies into several

normative groups. Under the revised Static-99R, the examiner must score the static risk

factors, then compare that score against one of the normative groups to arrive at a

probability that the offender will be convicted of a future sex crime. 5 The SRA-FV is

used to sort the individual into one of those normative groups.

       The SRA-FV was constructed from a sample obtained from the Massachusetts

Hospital in Bridgewater6 and then cross-validated on a separate sample from that same




      5  After arriving at that number, practitioners will also look at individual case
factors that may affect their determinations but were not included in the instruments.
       6The hospital treated high-risk sex offenders who had been civilly committed
from the '60s through the '80s.

                                             5

No. 30845-6-II1
In re Ritter


hospital. Trial testimony showed there is some criticism in the psychological community

that the dated sample might not correlate with a modern sample. However, contemporary

samples employed in comparable instruments, the Stable-2007 and the VRS-SO, suggest

that the sample should be accurate. Of note, the SRA-FV sample is the only sample set

that includes long-term, incarcerated offenders rather than people in the community.

Employing the SRA-FV in conjunction with the Static-99R leads to an incremental

increase in predictive accuracy from .68 to .74.

       In addition to the Bridgewater sample issue, the SRA-FV was criticized for its lack

of construct validity and low inter-rater reliability. All of these were stated limitations in

the peer-reviewed article. First, construct validity has not been established for any of the

particular dynamic risk factor ratings employed by the SRA-FV. Construct validity

refers to a measure of whether a psychometric test measures what it claims to measure.

In the context of the SRA-FV, the question is whether the assessment of the particular

risk factors and composite constructs actually measures what they purport to measure.

The concern is that the mechanisms for measuring the dynamic factors are not identical

between the SRA-FV and the studies used to establish correlations between the factors

and reoffense.

       The final limitation to the SRA-FV is that it has shown a relatively low inter-rater

reliability. Essentially, this is a measure of how frequently different people administering




                                              6

No. 30845-6-II1
In re Ritter


the instrument reach the same result. Although low, it is not low enough to be considered

invalid.

       After hearing the testimony and reviewing the exhibits, the trial court determined

that opinions based on the SRA-FV are admissible under Frye. The trial court entered

extensive findings of fact and conclusions of law. The parties filed supplemental briefs

concerning the Frye hearing; Mr. Ritter challenged many of the court's findings. A panel

subsequently considered the case without oral argument.

                                        ANALYSIS

       In light of the previous remand, the primary issue presented by this appeal is

whether the SRA-FV satisfies the Frye standard for admissibility. We conclude, as did

Division Two of this court while this matter was on remand, that the SRA-FV does

satisfy Frye.

       Whether novel scientific evidence is admissible presents a mixed question of law

and fact which this court reviews de novo. In re Det. ofPettis, 188 Wn. App. 198, 204­

05,352 P.3d 841 (2015) (finding that the SRA-FV satisfies Frye). Pettis involved the

same two primary psychological experts who testified in this case-Dr. Amy Phenix and

Dr. Brian Abbott. Id. at 208-10. Dr. Abbott did not testify in Pettis, but his critical

article concerning the test was discussed in the opinion. Id. at 209.

       Washington applies the Frye test to gauge whether expert testimony premised on

scientific evidence may be admissible. State v. Copeland, 130 Wn.2d 244, 261,922 P.2d

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No. 30845-6-II1
In re Ritter


1304 (1996). Frye requires that expert testimony be based on principles generally

accepted in the scientific community. State v. Canaday, 90 Wn.2d 808, 812, 585 P.2d

1185 (1978). The test is two prong: (1) whether the underlying theory is generally

accepted in the scientific community, and (2) whether there are techniques utilizing the

theory which are capable of producing reliable results. State v. Riker, 123 Wn.2d 351,

359,869 P.2d 43 (1994). The court does not assess the reliability of the evidence, but if

there is significant dispute between qualified experts as to its validity, it may not be

admitted. Copeland, l30 Wn.2d at 255. If the scientific principle satisfies Frye, the trial

court applies ER 702 in determining whether to admit testimony. Pettis, 188 Wn. App. at

205. This court reviews the trial court's ER 702 ruling for abuse of discretion. Id.

Discretion is abused ifit 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).

       Here, there is no dispute that the principles underlying the SRA-FV are generally

accepted in the scientific community. It is based on research linking dynamic risk factors

with the probability that a sex offender will reoffend in the future. There also is general

agreement that a structured analysis of those factors leads to a more reliable prediction

than a haphazard, individualized inquiry. Accord Pettis, 188 Wn. App. at 207-10. This is

essentially the same process used in applying static risk factors. The first prong of the

Frye test is satisfied.




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No. 30845-6-II1
In re Ritter


       The real dispute is whether the SRA-FV is capable of producing reliable results,

thereby satisfYing the second prong of the Frye test. The defense challenged the test in

the trial court by arguing several weaknesses in the current model. First, the defense

experts challenged the efficacy of the test by pointing out the lack of additional 7

validation studies. The statistician, Dr. Glaser, was dissatisfied with the data presented in

support of the SRA-FV, but he agreed that what was available did establish that the

instrument showed a significant incremental improvement in predictive accuracy. More

critically, neither Dr. Glaser nor any other witness suggested that the SRA-FV was

inaccurate or produced invalid results.

       The defense also challenged the reliability of the test, stressing that the inter-rater

reliability was somewhat low. This challenge is significant because inter-rater reliability,

the ability of different evaluators to obtain similar results, represents the instrument's

precision. Subsequent studies, however, have indicated higher rates of inter-rater

reliability that are well within the range accepted by the psychological community. This

evidence establishes that there are generally accepted methods of applying the SRA-FV.

Pettis, 188 Wn. App. at 210.

       Finally, at trial and on appeal the defense placed great weight on the lack of

construct validity. In psychometric testing, construct validity is of paramount importance



       7   The SRA-FV has been cross-validated with the Static-99R.

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No. 3084S-6-III
In re Ritter


because a test purporting to establish a construct is useless if it does not actually establish

that construct. However, the SRA-FV is not primarily a psychometric test; it is a

predictive test. Dr. Phenix pointed out that construct validity might be useful in refining

the test in the future, but if any of the metric components of the instrument measured

something other than what they were supposed to measure, it did not affect the predictive

accuracy of the SRA-FV. As with the previous arguments, this challenge is unavailing.

       The trial court correctly determined that the arguments presented against the SRA­

FV went to the weight of the assessment, not its admissibility. Pettis, 188 Wn. App. at

211. Accordingly, we reach the same conclusion that the Pettis court did:

              We hold that there are generally accepted methods of applying the
       SRA-FV in a manner capable of producing reliable results, and thus it
       passes the second prong of the Frye test. Thus, we hold that the SRA-FV
       passes the Frye test.

Id.

       The trial court properly admitted the SRA-FV assessment in Mr. Ritter's triaL

Thus, we affirm the commitment order.

       A majority of the panel having determined that only the foregoing portion of this

opinion will be printed in the Washington Appellate Reports and that the remainder

having no precedential value shall be filed for public record pursuant to RCW 2.06.040, it

is so ordered.




                                              10 

No. 30845-6-III
In re Ritter


       Mr. Ritter presents three additional arguments, although we need not address his

cumulative error argument in light of our determination that there was no error. We first

address his contention that his substantive due process rights were violated by relying

upon evidence of his juvenile conduct and his diagnosis of an antisocial personality

disorder. We then tum to his argument that his procedural due process rights were

violated by the jury instructions.

       Substantive Due Process

       Mr. Ritter contends that his substantive due process rights were violated both by

the reliance on evidence of his sexual misconduct while a juvenile and by use of the

diagnosis of antisocial personality disorder. We briefly discuss substantive due process

in the context of SVP proceedings before turning to his two specific contentions.

       The core concern of substantive due process is the protection from restraint from

arbitrary government action. Fouchav. Louisiana, 504 U.S. 71,80,112 S. Ct. 1780, 118

L. Ed. 2d 437 (1992). Therefore, a sexually violent predator can only be involuntarily

committed if the State proves (1) the person has a mental illness coupled with and linked

to serious difficulty controlling behavior and (2) together, these features both pose a

danger to the public and sufficiently distinguish the person from a dangerous but typical

criminal recidivist. Kansas v. Crane, 534 U.S. 407,413,122 S. Ct. 867,151 L. Ed. 2d

856 (2002); Kansas v. Hendricks, 521 U.S. 346,357-60, 117 S. ct. 2072, 138 L. Ed. 2d

501 (1997); In re Det. o/Thorell, 149 Wn.2d 724, 736, 742, 72 P.3d 708 (2003).

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No. 30845-6-III
In re Ritter


       The legislature codified these mandates in the SVP statute, chapter 71.09 RCW.

Three definitions from that chapter are at issue in this appeal. Civil commitment is

authorized when the State establishes beyond a reasonable doubt that a person is an

SVP-a "person who has been convicted of or charged with a crime of sexual violence

and who 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). A "personality disorder" is defined as "an enduring

pattern of inner experience and behavior that deviates markedly from the expectations of

the individual's culture, is pervasive and inflexible, has onset in adolescence or early

adulthood, is stable over time and leads to distress or impairment." RCW 71.09.020(9).

'" Likely to engage in predatory acts of sexual violence if not confined in a secure

facility' means that the person more probably than not will engage in such acts if released

unconditionally from detention on the sexually violent predator petition." RCW

71.09.020(7).

      Juvenile Sexual Misconduct. Mr. Ritter argues that developi~g case law and

science on juvenile brain development made it unconstitutional to consider his juvenile

sexual misconduct at the SVP proceeding. See Roper v. 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); Miller v. Alabama, 567 U.S. _ , 132 S. Ct. 2455, 183 L. Ed. 2d

407 (2012). All three cases were concerned with questions presented under the Eighth

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No. 30845-6-III
In re Ritter


Amendment to the United States Constitution when harsh punishment of crimes

committed by juveniles is prescribed or imposed without taking into consideration their

relative lack of volitional control.

       Unlike the criminal prosecutions under review in the three Supreme Court cases,

however, a civil commitment proceeding does not raise an issue of cruel and unusual

punishment forbidden by the Eighth Amendment. A criminal prosecution is backward-

looking and metes out an appropriate punishment, while a civil commitment proceeding

is forward-looking in order to protect the pUblic. A civil commitment proceeding looks

back at a respondent's past as a source of relevant evidence, "either to demonstrate that a

'mental abnormality' exists or to support a finding of future dangerousness." Hendricks,

521 U.S. at 362. Because juvenile misconduct is only evidence and not a basis for

punishment in civil commitment proceedings, current brain science raises a substantive

due process issue only if it reveals that a respondent's inability to control sexual conduct

while a juvenile is not relevant to his or her present or future inability to control behavior.

       To demonstrate a deprivation of due process, Mr. Ritter must back up his

contention that evidence of sexual misconduct as a juvenile has no probative value in

deciding whether a respondent presents a risk of reoffending if not confined in a secure

facility. At best, he points to scientific evidence that juveniles' brains are in a state of

maturation that increases their prospect of rehabilitation. That does not equate to


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No. 30845-6-II1
In re Ritter


evidence that acts committed while a juvenile are irrelevant to assessing the risk of their

future inability to control behavior. The evidence was relevant.

       Here, the defense had the opportunity to cross-examine the State's witness on this

topic and make argument to the jury. Due process requires nothing more.

       Antisocial Personality Disorder. Mr. Ritter also argues that substantive due

process considerations barred the State from relying on evidence of his antisocial

personality disorder because the definition is overly broad and imprecise given its

prevalence among male prisoners. He relies, in part, on Foucha, a case where antisocial

behavior was at issue. 8

       However, the Washington Supreme Court rejected his reading of Foucha in In re

Personal Restraint o/Young, 122 Wn.2d 1, 857 P.2d 989 (1993). Our court noted that

unlike the antisocial behavior at issue in Foucha, antisocial personality disorder is a

recognized personality disorder defined by the Diagnostic and Statistical Manual of

Mental Disorders. Id. at 37 n.12.

       Both of Mr. Ritter's substantive due process arguments are without merit.




       8 He also relies on Crane and Hendricks. However, his reading of those cases is
incorrect because neither of those cases forecloses reliance on antisocial personality
disorder. 534 U.S. at 411-17; 521 U.S. at 357-60.

                                             14 

No. 30845-6-111
In re Ritter


       Procedural Due Process

       Mr. Ritter also argues that the definitions from RCW 71.09.020(7) and (18), noted

earlier, improperly lower the State's burden of proof. He properly notes that the

Washington Supreme Court has rejected this argument, but asks that we reexamine that

precedent. We are not in a position to do so.

       As recounted previously, those definitions required the State to prove that a

respondent's mental abnormality or personality disorder makes him or her "likely to

engage in predatory acts of sexual violence if not confined in a secure facility," RCW

71.09.020( 18) (emphasis added), and that they were'" [l]ikely to engage in predatory acts

of sexual violence if not confined in a secure facility' means that the person more

probably than not will engage in such acts if released unconditionally from detention on

the sexually violent predator petition." RCW 71.09 .020(7) (emphasis added). He alleges

that these definitions conflict with the constitutionally mandated burden of proving an

SVP commitment by clear, cogent, and convincing evidence.

       Our Supreme Court rejected this same argument more than a decade ago, pointing

out that it confuses the burden of proof, which is the degree of confidence the trier of fact

should have in the correctness of its conclusions, with a fact to be proved, which in the

case of this element, is one couched in terms of statistical probability. In re Det.   0/
Brooks, 145 Wn.2d 275,297,36 P.3d 1034 (2001), overruled on other grounds by In re

Det. o/Thorell, 149 Wn.2d 724, 72 P.3d 708 (2003). The court pointed out that "RCW

                                             15 

No. 30845-6-III
In re Ritter


71.09.060(1)'s demand that the court or jury determine beyond a reasonable doubt that a

defendant is an SVP means that the trier of fact must have the subjective state ofcertitude

in the factual conclusion that the defendant more likely than not would reoffend if not

confined in a secure facility." Id. at 297-98 (emphasis added). One of the "fact[s] to be

determined" is "not whether the defendant will reoffend, but whether the probability of

the defendant's reoffending exceeds 50 percent." Id. at 298. Yet the SVP statute still

requires that the fact finder have the subjective belief that it is at least highly probable

that this fact is true. Id.

       Mr. Ritter acknowledges that Brooks rejected his argument but nonetheless asks

that we reexamine Brooks in light of later federal and state case law recognizing that

involuntary commitment is unconstitutional absent proof that an individual has serious

difficulty in controlling behavior. He points to the United States Supreme Court's

decision in Kansas v. Crane and our Supreme Court's decision in Thorell.

       It is not this court's place to "reexamine" a decision by the Washington Supreme

Court that it has not overruled. State v. Gore, 101 Wn.2d 481,487,681 P.2d 227 (1984)

(citing Godefroy v. Reilly, 146 Wash. 257, 259, 262 P. 639 (1928)). Thorell implicitly

rejected Mr. Ritter's suggestion that the State's burden to prove an individual's serious

difficulty controlling behavior has ramifications for the State's burden of proving that the

individual is '" likely to engage in predatory acts of sexual violence if not confined in a

secure facility. '" Thorell explicitly approves the language of a to-commit instruction

                                              16 

No. 30845 6·III
           w



In re Ritter


similar to the pattern instruction in use at the time of this commitment trial. 149 Wn.2d

at 742; cf 6A WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS:

CIVIL 365.10, at 568 (6th ed. 2012). The instruction approved in Thorell includes the

same "likely to engage in predatory acts" element to which Mr. Ritter objects and that he

asks us to reexamine. Yet, according to Thorell, the instruction continues to pass

constitutional muster because it "requires the fact finder to find a link between a mental

abnormality and the likelihood of future acts of sexual violence if not confined in a

secure facility." 149 Wn.2d at 743.

      Thus, even if we had authority to reconsider a decision of the Washington

Supreme court, this is not the case to do so. The procedural due process argument, as

Brooks already noted, confuses the burden of proof with a fact to be proved. That fact

simply does not reduce the State's burden of proof. This argument, too, is without merit.

      The commitment order is 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:




                                            17 

