                                                                                                           FILED
                                                                                                    COURT OF APPEALS
                                                                                                         DIVISION Ic

                                                                                                LOIN APR 24         0 46
    IN THE COURT OF APPEALS OF THE STATE OF WASHISI)1

                                               DIVISION II                                          BY


In re the Detention of:                                                          No. 42573 -4 -II


JACK LECK II,


                                     Petitioner.
                                                                      ORDER GRANTING MOTION
                                                                                 TO PUBLISH




        Respondent State of Washington filed a motion to publish our March 4, 2014 opinion in

this matter. Appellant Jack Leck filed a response opposing this motion. After review of the

records and files herein, we grant the motion.


        It is ORDERED that the final               paragraph   that   reads "   A majority of the panel having

determined that this opinion will not be printed in the Washington Appellate Reports, but will be

filed for   public record pursuant   to RCW 2. 06. 040, it is     so ordered."   is deleted.


        It is further ORDERED that the opinion is now published.



                                       t/
        DATED: this         VI)                        day   of            I/L1
                                                                            i                               2014.



        PANEL: Jj. Penoyar, Worswick, Bjorgen.

        FOR THE COURT:
                                                                                           i" fLEf
                                                                                   COURT OF APPEALS
                                                                                      Oitir ESfOf! 11

                                                                                  2014 MAR - 4     AM 9: 19
    IN THE COURT OF APPEALS OF THE STATE                                              WASHINGTON
                                                                                  Q            f

                                                 DIVISION II
                                                                                           DE °,UTY
In re the Detention of:                                                         No. 42573 -4 -II


JACK LECK II,

                                   Petitioner.


                                                                          UNPUBLISHED OPINION




                             1—
        PENOYAR, J. P. T.         Jack Leck II appeals a jury verdict determining him to be a sexually

violent predator (   SVP).     Leck contends that his right to due process was violated when ( 1) the

jury was instructed on an alternative means of proving his SVP status that was not alleged in the
petition, (   2) he was not allowed to appear in person at a reconsideration hearing addressing the

recent overt act requirement, and ( 3) the State' s expert witness was allowed to refer to hearsay in

expressing his opinion about Leck' s SVP status. Leck also argues that the State had no authority
to file an SVP petition against him in 2008 under the law_then in effect and that applying the

 2009 law retroactively      violated   his   right   to due   process.   We hold that the State had authority to


 file the petition under both versions of the law, as explained in In re Detention ofDurbin, 160
                    248 P. 3d 124,              denied, 172 Wn.2d 1007 ( 2011).         We hold further that the
 Wn.   App. 414,                     review




 jury instruction alleging that Leck suffered from a personality disorder did not constitute
 manifest constitutional error enabling Leck to raise this issue for the first time on appeal, that the

 trial court did not err by refusing to continue a reconsideration hearing addressing an issue of
 law, and that the State' s expert appropriately referred to the evidence supporting his opinion.
 We affirm Leck' s SVP commitment.


 1 Judge Joel Penoyar is serving as a judge pro tempore of the Court of Appeals, Division II,
 pursuant     to CAR 21( c).
42573- 4- 11



                                                         FACTS


I.           FACTUAL BACKGROUND


             Leck was convicted in 1984 in Alaska of second degree sexual abuse of a minor and

second        degree   attempted sexual abuse of a minor.          For purposes of Washington's SVP laws at

chapter       71. 09 RCW, these two       convictions     amount   to " sexually violent             2 Leck was
                                                                                           offenses. "




released       on parole   for these   offenses   in   July 1996. After being in and out of confinement for

various parole violations, Leck was unconditionally released in September 2002.

             In Apri12003, Leck applied for a membership at the YMCA in Bremerton, Washington.

A YMCA employee, aware that Leck was a sex offender in Alaska, contacted Bremerton police.

Having        been informed    by   Leck's   family3 when Leck was released in 2002 that he might try to

enter the Bremerton YMCA, the police contacted the address Leck had left there; the address
                                                          Leck had begun volunteering        a week earlier.   The
was for        a charitable   organization at which




 police searched the organization's computer to which Leck had had access during that week,

 discovering numerous images downloaded during that time of minors engaged in sexually
 explicit conduct.         Leck was arrested and later convicted in Kitsap County Superior Court of 46
 counts of possession of depictions of a minor engaged in sexually explicit conduct.




     2
         RCW 71. 09. 020( 17) defines " sexually violent offense."

     3 Leck' s family lived in the Bremerton area at this time.
                                                              2
42573 -4 -II .



1.            PROCEDURAL BACKGROUND


              In April 2007, shortly before Leck completed serving his sentence for the Kitsap County
convictions,             the State filed a         petition   in Thurston   County   alleging that Leck       was an   SVP. 4 '   Leck

was transported first to the Thurston County jail and then, after a probable cause finding under

RCW 71. 09. 040, to the Special Commitment Center on McNeil Island to await his commitment

trial.



               In May 2008, before Leek's trial, the Washington Supreme Court held that an SVP
petition was improperly filed in Thurston County where the alleged SVP had committed sexually
violent offenses outside Washington as well as offenses that were not sexually violent in Clark

                                                   Det. of Martin, 163 Wn.2d 501, 504 -05, 182 P. 3d 951 ( 2008).                   In
 County,        Washington.             In   re



                                                        to dismiss the Thurston         County   petition against      Leck   and —at
 view of        Martin, the State             moved




 the        request of     the   Kitsap County          prosecutor —     filed .a petition against Leck in Kitsap County in

                     5
 July 2008.




     4 "`
         Sexually violent predator' means any 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
                                RCW 71. 09. 020( 18).             This definition has   remained unchanged since          1995. See
     secure    facility."
     LAWS OF 1995,             ch.   216, § 1.

     5
         RCW 71. 09.030 governs filing SVP petitions. The 1995 version of the statute was in effect
     when     the State filed the            petition against      Leck in Thurston     County. The legislature amended this
     version of the statute in 2008, but this amendment merely made one technical correction to the
                                                                   here. See LAWS       OF   1995,   ch.   216, § 3; LAWS OF 2008,
     statute    that     is immaterial        to   our analysis

      ch.   213, §       12.   The 2008 version of the statute was in effect when the State refiled its petition
      against    Leck in         Kitsap County.               The current version of the statute reflects the legislature' s
      substantive amendments                 in 2009. See LAWS of 2009,          ch.   409, § 3.
                                                                            3
42573 -4 -1I



          The Kitsap County petition was based on consulting psychologist Dale Arnold's 2006
evaluation of    Leck in   which    Arnold diagnosed Leck         with pedophilia.   6 As grounds for filing. the

petition,   the State   alleged   that Leck had   a mental   abnormality— namely,       pedophilia —   but did not


allege any personality disorder.

          Leck moved to dismiss the petition in December 2008 for lack of jurisdiction and

probable cause, arguing that he was unlawfully detained at the time the State filed the petition in
Kitsap County. Relying on In re Detention of Keeney, 141 - Wn. App. 318, 330, 169 P.3d 852
 2007),   the trial court concluded that an unlawful detention under a criminal proceeding does not

divest the court of its power to process an SVP petition,' and so the court denied Leck's motion in

May 2009.

          Then, in October 2010, the State moved for a ruling that, as a matter of law, Leck's 2003
convictions for possession of depictions of minors engaged in sexually explicit conduct qualified

as a recent overt act, which would relieve the State of its burden to prove a recent overt act at

trial.   Attached to the Stte's motion was an update to Arnold's evaluation based on his personal

 interview     with   Leck in September 2010.      In the updated evaluation, Arnolddiagnosed Leck with –

                                                    him to                criminal   sexual   acts.   At no point,
     personality disorder that       predisposed                 commit
 a



 however, did the State amend the petition to include this personality disorder as grounds for the

 petition.




 6 Leck refused an interview with Arnold in 2005 for purposes of Arnold' s initial evaluation of
 Leck; as a result, Arnold based his evaluation on a review of records alone.
                                                             4
42573 -4 -II



         Treating the State's recent -overt-act motion as one for partial summary judgment, the trial
                                                                             Leck' s   mental condition.   The
court   denied the   motion,   pointing to conflicting   expert opinion on




State   moved      for   reconsideration.     At   the   reconsideration     hearing,    with   Leck   present


telephonically, the trial court vacated its previous ruling and granted the State's motion, ruling
that Leck' s 2003 conviction qualified as a recent overt act.


         After Leck' s first trial ended in a mistrial, he was retried. At the end of that second trial,

the court instructed the jury as follows:

                  To establish that Jack Leck, II is a sexually violent predator, the State
         must prove each of the following elements beyond a reasonable doubt:
                     1) That Jack Leck, II has been convicted of a crime of sexual violence,
         namely the Alaska offense of Sexual Abuse of a Minor in the Second Degree
          and /or Attempted Sexual Abuse of a Minor in the Second Degree;
                     2) That Jack Leck, II suffers from a mental abnormality or personality
          disorder which causes serious difficulty in controlling his sexually violent
          behavior; and
                     3) That this mental abnormality or personality disorder makes Jack Leck,
          II likely to engage in predatory acts of sexual violence if not confined to a secure
          facility. .
                If you find from the evidence that each of these elements has been proved
          beyond a reasonable doubt, then it' will be your duty to return a verdict that Jack
          Leck,:II is a sexuallyviolent-predator. . - ... .. _
                   On the other hand, if, after weighing all of the evidence, you have a •
          reasonable doubt as to any one or more of these elements, then it will be your
          duty to return a verdict that Jack Leck, II is not a sexually violent predator.




                                                         5
42573 -4 -II



Clerk' s Papers ( CP)           at   1580 (   emphasis    added).    Additional instructions defined both " mental


abnormality"           7 and " personality disorder. "8 Leck did not object to any of these instructions.
               After the jury returned a verdict finding that the State had proved beyond a reasonable
doubt that Leck was an SVP, the court ordered him committed to. the Special Commitment

Center. Leck appeals.

                                                           ANALYSIS


I.             AUTHORITY To FILE THE PETITION


               Leck first argues that the State did not have authority to file a petition against him under

the law in        effect   in 2008.    Leck further argues that retroactively applying the law as amended in

2009 —under             which   the State     would   have had authority to file the   petition —   would deny him due

process. But in a recent case with analogous facts, we held that the State had authority under the
                                                  in                Durbin, 160 Wn.    App.   at   429.   We also held in
2008 law to file the SVP               petition        question.




Durbin that applying the 2009 law retroactively, which the legislature had clearly intended, did


 7 Instruction 6 read:

                 Mental abnormality"           means a congenital or acquired condition affecting the
                emotional or volitional capacity which predisposes the person to commit criminal
                sexual acts to a degree that makes the person a menace to the health and safety of
                others.

                 Volitional capacity" means the power or capability to choose or decide.
 CP at 1582.

 8 Instruction 7 read:

                 Personality     disorder"      means 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.

     CP   at   1583.
42573 -4 -II



not violate      due   process.    160 Wn.     App.   at   431.   Accordingly, the State was not precluded from

filing the petition against Leck under either version of the law.
II.          INSTRUCTION ON UNCHARGED ALTERNATIVE


             Leck argues next that his statutory and due process right to notice was violated because

the trial court instructed the,jury on an alternative means ( personality disorder) not mentioned in
the    petition   alleging that Leck        was an   SVP.    The State responds that Leck waived this argument


by     not   challenging instruction 4, the " to       commit"         instruction,   at   trial.   Leck argues that he may

raise this issue for the first time on appeal under In re Personal Restraint ofBrockie, 178 Wn.2d

532, 309 P. 3d 498. (2013).

              In Brockie, the Supreme Court explained that failing to properly notify a defendant of the

                            the   accusation of a criminal charge           is    a constitutional violation.     178 Wn.2d
nature and cause of




at    536 ( citing U. S. CONST.       amend       VI; WASH. CONST.         art.   I, § 22; State v. Kjorsvik, 117 Wn.2d


 93, 97, 812- P. 2d 86 ( 1991)).            The Brockie court explained further that when a defendant claims

 for the first time on appeal that the jury was instructed on an uncharged alternative means of

 committing a crime, the reviewing court should apply the line of cases beginning with State v
 Severns, 13 Wn.2d 542, 125 P. 2d 659 ( 1942).                    Brockie, 178 Wn.2d           at   537. This case law stands



 for the proposition that it is error for a trial court to instruct the jury on an uncharged alternative

 means in a criminal case and that, on appeal, it is the State' s burden to prove that the error was

 harmless.        Brockie, 178 Wn.2d at 536 ( citing Severns, 13 Wn.2d at 548; State v. Bray, 52 Wn.

 App.        30, 34 -35, 756 P. 2d 1332 ( 1988)).       The error of offering an uncharged means as a basis for

 a criminal conviction is presumed prejudicial and is harmless only " if ` subsequent instructions
                                                                         in

 the    crime charged was         clearly   and   specifically defined to the        jury. "' Bray, 52 Wn. App. at 34 -35

      quoting Severns, 13 Wn.2d         at   549);   see also State v. Doogan, 82 Wn. App. 185, 189, 917 P. 2d
                                                                   7
42573 -4 -1I


155 ( 1996) (    error of offering uncharged means as a basis for conviction is prejudicial if the jury
might have convicted the defendant under the uncharged alternative).

           To commit a person as an SVP, the State must prove that he suffers from a mental

abnormality      or   personality disorder.         In re Det. ofPost, 170 Wn.2d 302, 309 -10, 241 P.3d 1234
 2010) ( citing RCW 71. 09. 020( 18)). "`[             M] ental abnormality' and ` personality disorder' are two

distinct   means of      establishing the     mental     illness   element    in SVP   cases."   In re Det. of Halgren,

156 Wn.2d 795, 811, 132 P. 3d 714 ( 2006). Here, the State did not allege in the SVP petition that


Leck suffered from a personality disorder, but instruction 4 informed the jury that it could find
that Leck was an SVP if it found that he suffered from a mental abnormality or a personality

disorder.


           While tacitly conceding that error occurred, the State argues that neither Brockie nor the
Severns line          of cases    applies   here.      As stated, those cases describe the rights of criminal


defendants in criminal prosecutions. Brockie relied on the Sixth Amendment as well as article I,

 section 22 and the Kjorsvik decision in stating that failing to properly notify a defendant of the

                            the   accusation of a criminal         charge is a   constitutional   violation.   178 Wn.2d
 nature and cause of



 at   536 -37.        The   Sixth Amendment            and   article   I,   section   22,   expressly refer to criminal

 prosecutions, and Kjorsvik stands for the proposition that all essential elements of a crime must


 be included in a charging document. 117 Wn.2d at 97.

           Washington courts have repeatedly held that SVP proceedings are civil and not criminal,

 and they have added that the rights afforded to criminal defendants under the Sixth Amendment
 and article     I,   section   22 do   not attach    to SVP   petitioners.     In re Det. of Strand, 167 Wn.2d 180,

 191, 217 P. 3d 1159 ( 2009);           In re Det. of Ticeson, 159 Wn. App. 374, 377, 246 P. 3d 550 ( 2011),

 abrogated on other grounds,             State   v.   Sublett, 176 Wn.2d 58, 292 P. 3d 715 ( 2012). Instead, SVP

                                                                   8
42573 -4 -II



petitioners must       rely      on   the guaranty          of " fundamental        fairness"    provided by the due process

clause. Strand, 167 Wn.2d at 191.


          Consequently, to raise his claim of instructional error for the first time on appeal, Leck
must show that the error violated this due process guaranty of fundamental fairness and that he

was prejudiced as a result.                RAP 2. 5(    a)(   3);   State v. Gordon, 172 Wn.2d 671, 676, 260 P. 3d 884

 2011).


          Due     process        is   a    flexible    concept,           requiring "` such     procedural protections as the


particular      situation    demands. '             Sherman         v.   State, 128 Wn.2d 164, 184, 905 P. 2d 355 ( 1995)


                                 Eldrige, 424 U.S. 319, 334, 96 S. Ct. 893, 47 L. Ed. 2d 18 ( 1976)).                   At its
 quoting Mathews            v.




core is the right to notice and the opportunity to be heard, but its minimum requirements depend
on what        is fair in   a particular. context.             In re Det. of Stout, 159 Wn.2d 357, 370, 150 P. 3d 86

 2007); Sherman, 128 Wn. 2d                    at    184.     In determining what process: is due in a given context,

particularly where SVP proceedings are concerned, courts employ the Mathews test, which
balances: (       1) the    private       interest   affected, (         2) the risk of erroneous deprivation of that interest

 through the procedures used and the probable value, if any, of additional procedural safeguards,

 and (   3)    the governmental interest, including costs and administrative burdens of additional

 procedures. Mathews, 424 U.S. at 335; Stout, 159 Wn.2d at 373.

              As stated, Leck argues that the instruction informing the jury that it could find he was an

 SVP based on the uncharged " personality disorder" alternative violated his due process right to
 notice.       In applying the Mathews test to this claim, we recognize that Leck has a significant
 interest in his      physical        liberty. As to the second factor, we do not see that trying Leck on the

 personality disorder alternative risked an erroneous deprivation of that liberty.


                                                                            9
42573 -4 -II



                                                                     in                 CR 15( b),                         that "[ w]hen
          We      are   guided          to this   conclusion,             part,   by                  which provides




issues not raised by the pleadings are tried by express or implied consent of the parties, they shall

be treated in       all respects           as   if they had been           raised      in the   pleadings."   The rule adds that the


failure to      formally      amend        the    pleadings "   does not affect the result of the trial of these issues."

CR 15( b); Green             v.   Hooper, 149 Wn.          App. 627, 636,. 205                  P. 3d 134 ( 2009).   Under CR 15( b),


  w]here evidence raising issues beyond the scope of the pleadings is admitted without objection,

the   pleadings     will      be deemed           amended    to      conform        to the      proof."   Reichelt v. Johns- Manville •


Corp., 107 Wn.2d 761, 766 -67, 733 P. 2d 530 ( 1987).

           The    civil rules "         govern the procedure in the superior court in all suits of a civil nature,"

with     the   exceptions set out           in CR 81.     CR 1; In re Det. of Williams, 147 Wn.2d 476, 488, 55 P. 3d

                             Det. of Cherry, 166 Wn.                  App.    70, 74, 271 P. 3d 259 ( 2011).             CR 81( a) states
 597 ( 2002); In        re




that "[   e] xcept where inconsistent with rules or statutes applicable to special proceedings, these,

 rules    shall   govern          all   civil   proceedings."         Proceedings under chapter 71. 09 RCW are special

 proceedings       within         the meaning        of   CR 81.          Cherry, 166 Wn. App. at 74 ( citing In re Det.; of

 Mothers, 100 Wn. App. 336, 340, 998 P. 2d 336 (2000)).
           RCW 71. 09. 030 governs the information that must be contained in an SVP petition, but

 there is no statute in chapter 71. 09 RCW that discusses the amendment of such petitions.

 Consequently, our review of whether Leek consented to and thereby had notice of his trial on an
 uncharged alternative is governed by CR 15. See In re Det. ofMcLaughlin, 100 Wn.2d 832, 849,
                         applying CR 15 to involuntary
 676 P. 2d 444 ( 1984) . (                                                              commitment        proceeding).    In determining

 whether the parties consented to the trial of an unpleaded issue, we consider the record as a

 whole.        Mukilteo Ret. Apartments, LLC                    v.   Mukilteo Investors L.P.,             176 Wn. App. 244, 257, 310

 P. 3d 814 ( 2013.).

                                                                            10
42573 -4 -II



         During closing argument in Leck' s first trial, the State informed the jury that it had to
find that Leck suffered from a mental abnormality or a personality disorder to determine that he

was an     SVP.    The State asserted that Leck suffered from a mental abnormality and added that

 the   other   diagnosis that'   s not   in dispute in this    case   is   antisocial   personality disorder."         2/ 28/ 11


Report   of    Proceedings ( RP) ( Feb. 28, 2011)         at   1232.       The defense conceded that the evidence


showed that Leck " may have an antisocial personality disorder" and asserted that the " big issue"
was whether Leck suffers from a mental abnormality or personality disorder. RP ( Feb. 28, 2011)

at 1253.


         During Leck' s second trial, the State sought to allow its expert, Dale Arnold, to refer to
information regarding Leck' s molestation of his sister and her daughter to support the diagnosis
                                                                      The defense responded that there was no
                  personality disorder        and   pedophilia.
of antisocial



 disagreement about the personality disorder diagnosis, since both Arnold and Richard Wollert,
                                                               from                     personality disorder.
                                                                                                                        Defense
the defense       expert,   agreed   that Leck       suffers               antisocial




 counsel referred to the       jury in   adding that "[ t] he diagnosis has
                                                                            been           made....          They' re going to

 learn that he has     an antisocial      personality disorder."           RP ( Aug. 1, 2011) at 161.- After the trial


 court observed that both experts had clearly concluded that Leck has an antisocial personality

 disorder, it limited Arnold' s testimony about his sister' s allegations.

                    his testimony, the State         questioned       Arnold     about   the "   mental abnormalities and
           During

                                         the SVP definition. RP ( Aug. 8, 2011)                  at   221.   Arnold responded
 personality disorders"        part of



 that Leck suffers from the mental disorders of pedophilia and antisocial personality disorder,

 with    both   conditions     supporting his       commitment        as    an   SVP.    On cross examination, Leck' s


               asked   about   the personality disorder diagnosis,                and   Arnold        replied, "[   W] hen I say
  attorney


  antisocial personality disorder and pedophilia, that' s the mental abnormality and the personality
                                                               11
42573 -4 -II



disorder that drive the behavior."                   RP ( Aug. 8, 2011)        at   374.   Defense counsel then asked


whether a personality disorder would compel a person to commit a crime.

           Wollert testified for the defense that the fact that Leck suffers from antisocial personality

disorder does not mean that he has a mental abnormality.

                                                the State   asserted      that the diagnosis that " everybody agrees
           During   closing     argument,




with" is antisocial personality disorder. RP (Aug. 15, 2011) at 1097. Defense counsel responded

that while Leck might have antisocial personality disorder, he was not incapable of making

choices about whether           to   commit additional crimes.            On rebuttal, the State again explained that


the case was about whether Leck has a mental abnormality or personality disorder that causes

him serious difficulty in controlling his sexually violent behavior.
           There    were   no    objections      to the    testimony      or   arguments    cited   above.   Leck clearly

received notice of the State' s intent to allege that he suffered from a mental abnormality or a

personality disorder; indeed, he conceded the latter allegation in an attempt to limit unfavorable
 testimony.        As a result, the State' s failure to formally amend its petition to include the

                                               did              an                  deprivation of Leek' s   liberty.   The
 personality disorder       alternative              not risk        erroneous




 pleadings were deemed amended when Leck defended against the allegation that he suffers from

 a personality disorder without objection. There would be no value in retrying the case following -
 a   formal    amendment of          the   petition.   The second Mathews factor clearly weighs in the State' s

 favor.


            The third Mathews factor also favors the State, which has a substantial interest in

 protecting the corrununity from
                                               sexual predators.        It would be costly and burdensome, as well as

 meaningless, to give Leck a third opportunity to raise the same defense he used in the prior two

 trials.     Under the due           process    clause,   notice     must   be "    reasonably calculated, under all the
                                                                   12
42573- 4- 11



circumstances, to apprise interested parties of the pendency of the action and afford them an

                               their                         Mullane        Cent. Hanover Bank & Trust Co., 339 U.S.
opportunity to      present                objections."                v.




306, 314, 70 S. Ct. 652, 94 L. Ed. 865 ( 1950).                      The purpose of notice having been served in this

case,   we   see    no   due   process        violation.      Accordingly, we decline to address Leck' s claim of
                                      9.
instructional      error   further.


III.      RECENT OVERT ACT RECONSIDERATION HEARING

          Leck argues here that the trial court violated his due process right to be present when it •

denied his motion to continue the recent overt act reconsideration hearing so that he could attend

the hearing in person.

          Due process requires that, before indefinitely committing a person to a secure facility, a

jury must find beyond a reasonable doubt that he is both mentally ill and presently dangerous. In
re     Det. of Marshall, 156 Wn.2d 150,                       157,   125 P. 3d. 111 ( 2005).   When a person is not


incarcerated at the time the State files the commitment petition, due process requires the State to

prove present dangerousness with evidence of a recent overt act. In re Det. ofLewis, 163 Wn.2d

 188, 193 - 94, 177 P. 3d 708 ( 2008).                   A recent overt act is " any act, threat, or combination thereof

that has either caused harm of a sexually violent nature or creates a reasonable apprehension of

 such harm in the mind of an objective person who knows of the history and mental condition of
                                                   10
 the   person   engaging in the            act."        RCW 71. 09. 020( 12).

           The due process requirement of proving dangerousness may be satisfied by the person' s

 prior conviction when the petition is filed while the offender is incarcerated for a prior act that


 9 Leck' s claim that his statutory right to notice was violated is also waived under RAP 2. 5( a).
 10 The minor changes made to this definition after the State filed its petition against Leck do not
 affect our analysis        here. See former RCW 71. 09. 020( 10) ( 2006);              Durbin, 160 Wn. App. at 426.
                                                      13
42573 -4 -II



would itself qualify as a recent overt act. In re Det. ofHendrickson, 140 Wn.2d 686, 695, 2 P. 3d
473 ( 2000).     Whether the act resulting in a conviction underlying the alleged SVP' s confinement

is a recent overt act is a question of law for the trial court, not a question of fact to be decided by

the jury. Marshall, 156 Wn.2d at 158.

        The trial court initially denied the State' s motion to treat Leek' s 2003 convictions for
possession of child pornography, for which he was confined when the SVP petition was filed, as
a recent overt act as a matter of law. When the State moved for reconsideration, the court held a

                         Leck    was present     telephonically.    Defense counsel moved for a continuance
hearing    at which



because Leck wanted to attend the hearing. in person, but the trial court denied that motion after

explaining that its decision would be based on the existing record and not additional testimony.
The court added that if Leck wanted to submit further information, it would consider that request

at the' end of argument.


          The State argues that the trial court did not err by denying Leek' s motion to continue a

                        purely legal issues      were considered.      See State v. Eller, 84 Wn.2d 90, 95, 524
hearing    at which




 P. 2d 242 ( 1974) (       whether to grant continuance is within trial court' s discretion; denial is

 disturbed only if accused has been prejudiced and /or result likely would have differed had
 continuance      been    granted).     A defendant has the right to be present at proceedings where his

 presence has a reasonably substantial relationship to the fullness of his opportunity to defend
 against   the   charge.    In   re   Det. of Morgan, 161 Wn.        App.   66, 74, 253 P. 3d 394 ( 2011),   review




 denied, 177 Wn. 2d 1001 ( 2013).                A defendant does not have a right to be present during a

                                                            his   presence would   be   useless.   Morgan, 161 Wn.
 discussion      of   purely legal    matters,   or where




 App. at 74.


                                                              14
42573 -4 -I1



         The trial court must determine whether an individual is incarcerated for an act that

qualifies    as   a   recent     overt      act.     Marshall, 156 Wn.2d          at    158.   When the act resulting in

confinement has not caused harm of a sexually violent nature, an adjudication of the recent overt

act question requires            both   a   factual      and    legal   inquiry. Marshall, 156 Wn.2d at 158; State v.

McNutt, 124 Wn.            App.    344, 350, 101 P. 3d 422 ( 2004).                    The factual inquiry determines the

circumstances         of   the    alleged         SVP'   s    history   and   mental    condition,   and the legal inquiry

determines whether an objective person knowing those factual circumstances would reasonably

apprehend that the act resulting in his current confinement would cause harm of a sexually
violent nature.       Marshall, 156 Wn.2d                at    158.   The court' s role under the factual inquiry prong is

not that of a fact finder; the court need only review facts already established, including those
established       in the   record of        the    conviction     resulting in incarceration.    In re Det. of Brown, 154

Wn.    App.       116, 125, 225 P. 3d 1028 ( 2010).                      The original criminal proceeding provides an


 individual with an opportunity to contest the factual allegations supporting the conviction, and

 the recent overt act inquiry is not meant to provide a' second opportunity to litigate those facts.
 Brown, 154 Wn. App. at 125.

            The trial court noted here that a motion for reconsideration is generally decided on the

 basis of the motion submitted. The court requested argument, however, because it had questions
                              part test                                  in Marshall to the    record   before it.   Following
 about   how to apply the two -                              outlined




 argument, the court noted that it was relying only on uncontroverted facts in making its ruling.
 The trial court concluded that based on the record in the case and the material filed in support of

 the motion for reconsideration, the facts of Leck' s 2003 conviction constituted an act or acts that

 could create a reasonable apprehension of harm of a sexually violent nature in the mind of an

  objective person who knows of Leck' s history and mental condition.
                                                                        15
42573 -4 -II



          Leck now argues that the trial court relied on disputed facts in granting reconsideration of

its recent overt act ruling, including the fact that he had a mental condition that predisposed him

to commit acts of a sexually violent nature, that he was searching for pornography sites on a .

state -owned computer in 2001, and that he applied for membership at the Bremerton YMCA to

meet children. Leck alleges further that when he made statements to the police at the time of his

2003 arrest to which the court' s findings referred (i.e., that he " had a problem" and was " trying

so    hard to stay away from this "),       he did not mean he had a problem staying away from child

pornography. CP at 767.

                       that the issues     were as   Leck   now   frames them,"   he does not show that his
          Assuming

presence was required at the hearing or that the trial court erred by denying his motion to
continue     that   hearing.      Leck had the opportunity to speak during the hearing and to offer

 additional evidence       following   argument at   the   hearing. Although he consulted with his attorney

 during   the   hearing,   he   offered no additional materials.   The trial court did not err by denying the

 motion for a continuance and by holding the reconsideration hearing while Leck was present

 telephonically.

 III.      BASIS FOR EXPERT OPINION


           Finally, Leck claims that his due process right to cross examination .was violated when

 Arnold relayed a prejudicial out -of court statement from Leck' s sister without Leck having the
                                      -

 opportunity to cross examine her about her motive and bias.




 11
      It does not appear that the trial court considered anything but the undisputed facts before it:
 Leck' s access to pornographic websites, his YMCA application, and his statements to the police
 at his arrest.
                                                            16
42573 -4 -II



        During Arnold' s testimony, and before he referred to facts from the record, the court

orally instructed the jury as follows: •

                     Dr. Arnold is about to testify regarding information contained in file
         records he reviewed about Mr. Leck, which is part of the basis for his opinion.
         You may consider this testimony only in deciding what credibility and weight
         should      be   given   to Dr. Arnold' s        opinion.       You may not consider it as evidence
         that the information relied upon by the witness is true or that the events described
         actually occurred.


RP ( Aug. 8, 2011) at 243.

         Arnold then testified about Leck coming to Bremerton after his 2002 release and

accessing child pornography on the internet.

         And after doing that for a couple days and saturating himself in the child
                                                                                       the YMCA.      That' s really
         pornography, he then               went   to   get   a   membership      at

         important to me because that' s how he found his last victim was at the YMCA in
         Anchorage.


RP ( Aug. 8, 2011) at 263.

         Leck testified during his direct and redirect testimony that he applied to the Bremerton
 YMCA      so   he   could use        its   shower   facilities.    On rebuttal, Arnold answered as follows when

 asked about the significance of Leck' s application to the Bremerton YMCA:

                     I think it' s quite significant for a couple of reasons.
                     One reason is because it' s very clear that he had obtained victims for child
         molestation in the past at the YMCA.
                     And the other reason I think it' s particularly important, is because that' s
          how he was really caught in 2003 is because his sister knew that he had this
          pattern of contacting YMCAs, and she informed local law enforcement to watch
          out for him.


 RP (   Aug.    15, 2011)        at   1043.    Leck' s attorney made a hearsay objection, and the trial court

                               that it could   hear     argument on      the   objection.   The State argued that the court .
 excused   the   jury     so




 had given a limiting instruction about Arnold' s testimony and that he was entitled to rely on facts
 in the record to support his opinion about the significance of Leck' s YMCA application. Leck' s
                                                                    17
42573 -4 -II




attorney responded that the testimony was too prejudicial, but the court overruled the objection
because the fact at issue was part of the basis for Arnold' s expert opinion.


         The trial court later gave the jury a written limiting instruction stating in part as follows:
                  When    Dr.           Dr.
                                 Arnold /     Wollert testified,         I    informed   you that   some
         information was admitted as part of the basis for his opinions, but may not be
         considered for other purposes. You must not consider this testimony as proof that
         the information   relied upon   by   the witness   is   true.       You may use this testimony
         only for the purpose of deciding what credibility or weight to give the witness' s
         opinion.



CP at 1579.


         ER 703 permits an expert to base his opinion on facts that are not otherwise admissible if

they are of a type reasonably relied on by experts in the particular field. Marshall, 156 Wn.2d at
162. "   Thus, the rule allows expert opinion testimony based on hearsay data that would otherwise

be inadmissible in     evidence."   Marshall, 156 Wn.2d          at   162.    In addition, ER 705 grants the trial


court discretion to allow the expert to relate hearsay or otherwise inadmissible evidence to the

trier of fact to explain the reasons for his expert opinion, subject to appropriate limiting

               Marshall,
instructions. _.              .. 56 Wn.2d at _163; 513 KARI, B. TEGLAND, _WASHINGTON PRACTICE:
                               1

 EVIDENCE LAW AND PRACTICE § § 705. 4, 705. 5 ( 5th ed. 2007).


           In an SVP trial, experts may rely on psychological reports and the criminal history of an
 SVP detainee in testifying.        In re Pers. Restraint of Young, 122 Wn.2d 1, 58, 857 P. 2d 989

  1993).    In referring to Leck' s sister' s statement, Arnold was drawing from information in the
 2003 Kitsap County presentence report to which he had referred in evaluating Leck in 2006.
           Arnold testified appropriately, and the trial court gave a limiting instruction to which the

 defense did    not object.   We reject Leek' s attempt to transform this evidentiary issue into one of

 constitutional     magnitude.    Furthermore, we observe that during the deposition played for the

                                                      18
42573 -4 -II




jury, Leck admitted to molesting his sister when she was a child, stated that she had wrongfully
accused him of molesting her children, and added that she was jealous of his relationship with

their father. This testimony provided ample basis for Leck to argue that his sister was biased and
had : a   motive   to   lie.   We see no error in the court' s ruling regarding the scope of Arnold' s

testimony.

          Affirmed.


          A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with .RCW

2. 06.040, it is so ordered.




We concur:




                                                       19
