                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                           July 2, 2019




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II

 In the Matter of the Detention of:                                 No. 50946-6-II

 TIMOTHY JOHN MCMAHON,

                               Petitioner.                    UNPUBLISHED OPINION


       LEE, A.C.J. — Timothy J. McMahon appeals the trial court’s order committing him to the

Special Commitment Center as a Sexually Violent Predator. McMahon argues that the assistant

attorney general committed misconduct during closing argument and that he received ineffective

assistance of counsel when his counsel failed to object to the assistant attorney general’s improper

closing argument. We disagree and affirm.

                                             FACTS

       McMahon has multiple convictions for child molestation. In February 2017, the State filed

a petition to have McMahon committed as a sexually violent predator. Two experts, Dr. Mark

Patterson and Dr. Brian Abbott, testified at McMahon’s commitment trial.

       The State called Dr. Patterson to testify.      Dr. Patterson diagnosed McMahon with

pedophilia, antisocial personality disorder, exhibitionistic disorder, alcohol use disorder, and

cannabis use disorder based on the criteria in the American Psychiatric Associations’s Diagnostic

and Statistics Manual of Mental Disorders, Fifth Edition (2013) (DSM-5). Dr. Patterson testified
No. 50946-6-II


that, in his opinion, McMahon’s conditions and disorders met the legal definition of mental

abnormality. And, Dr. Patterson specifically testified that alcohol use disorder contributed to

McMahon’s behavior because alcohol acts as a disinhibitor and reduces McMahon’s ability to

control his behavior. Dr. Patterson also opined that McMahon met the other requirements to be

considered a sexually violent predator.

       McMahon called Dr. Abbott to testify. Dr. Abbott testified that he did not believe

McMahon suffered from pedophilia or antisocial personality disorder. Dr. Abbott diagnosed

McMahon with alcohol use disorder, currently in remission, also based on the DSM-5 diagnostic

criteria. Dr. Abbott explained how the alcohol use disorder influenced McMahon’s offending:

       Well, it had to do primarily at the time him having a severe alcohol use disorder
       and how that alcohol use disorder impaired his psychological functioning. So what
       I saw in Mr. McMahon that I’ve seen in many other clients is that in these—the
       extent of alcohol consumption caused impairment in psychological functioning
       where he began to display personality characteristics that mimicked antisocial
       personality traits.

               So he, clearly when he was using heavily, he would be impulsive, he would
       be aggressive, he would lack remorse over his—how he hurt other people. He
       would be irresponsible, reckless; and then when he got into prison, it was not
       drinking alcohol, the best we know—he didn’t show antisocial personality disorder
       symptoms. And if somebody, if they do have antisocial personality disorder, they
       would show it in prison as well as out in the community. So that was a strong key
       to me, diagnostically, that the alcohol use appeared to be the factor that was causing
       him to act in antisocial ways and have antisocial attitudes.

              So my—my opinion was that his sex-offender behavior was related to those
       characteristics induced by the alcohol use disorder, in terms of impulsivity, lack of
       remorse, reckless disregard for the safety of others, and also the availability of the
       victims and his indiscriminate sexual acting out and using them to act out sexually.

               So it was more of a, kind of, an antisocial way of relating to the victims in—
       in a grossly inappropriate sexual ways. But it was driven primarily based on the
       deterioration and the psychological functioning associated with the alcohol use
       disorder.



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No. 50946-6-II



4 Verbatim Report of Proceedings (VRP) at 614-15. Dr. Abbott admitted that he considered

alcohol use disorder an acquired or congenital condition. However, Dr. Abbott opined that because

he considered McMahon’s alcohol use disorder to be in remission, McMahon’s alcohol use

disorder was not a mental abnormality.

        The trial court instructed the jury on the legal definition of a mental abnormality. The

instruction stated,

                “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.

Clerk’s Papers at 217; see also RCW 71.09.020(8).

        During closing argument, the assistant attorney general addressed Dr. Abbott’s testimony

and argued that, contrary to Dr. Abbott’s opinion, alcohol use disorder met the legal definition of

a mental abnormality:

        [Dr. Abbott] tells us that the available clinical information about Mr. McMahon
        appears more consistent with the antisocial personality features induced by severe
        alcohol uses. Alcohol use disorder is a congenital or acquired condition.

                He then goes on to tell us that that’s leading him to act irresponsibly and
        impulsively in managing his sexual impulses. So it’s affecting his emotional or
        volitional capacity, and finally, he tells us through the sexually offending behavior
        towards the victims. Well, it affected his emotional or volitional capacity, which
        predisposed him to commit criminal sexual acts against his victims. Sounds like a
        mental abnormality to me. So we can go ahead and check off that box.

6 VRP at 833. McMahon did not object to the State’s closing argument.




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No. 50946-6-II


       The jury found McMahon to be a sexually violent predator. The trial court entered an order

committing McMahon to the Special Commitment Center.

       McMahon appeals.

                                           ANALYSIS

A.     PROSECUTORIAL MISCONDUCT

       McMahon argues that the State committed misconduct during closing argument when the

assistant attorney general told the jury it could find that McMahon’s alcohol use disorder could be

a mental abnormality. We disagree.

       1.      Legal Principles

       To prevail on his claim of prosecutorial misconduct, McMahon must establish that the

State’s conduct was both improper and prejudicial. In re Det. of Urlacher, 6 Wn. App. 2d 725,

745, 427 P.3d 662 (2018) (citing State v. Emery, 174 Wn.2d 741, 756, 278 P.3d 653 (2012)),

review denied, 192 Wn.2d 1024 (2019). First, we determine whether the conduct was improper.

Id. Then, if the State’s conduct was improper, we determine whether the State’s misconduct

resulted in prejudice.1 Id.

       In closing argument, the State has wide latitude in making arguments and drawing

reasonable inferences from the evidence. State v. Fisher, 165 Wn.2d 727, 747, 202 P.3d 937

(2009). However, the State commits misconduct by misstating the law. Urlacher, 6 Wn. App. 2d




1
  Because McMahon did not object to the State’s comments during oral argument, any error is
waived unless the State’s conduct was so flagrant and ill-intentioned that an instruction would not
have cured any prejudice. Urlacher, 6 Wn. App. 2d at 745-46. Because we determine that the
State’s conduct was not improper, we do not address waiver or prejudice.


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No. 50946-6-II


at 746. And the State’s arguments must be supported by the evidence. State v. Pierce, 169 Wn.

App. 533, 553, 280 P.3d 1158, review denied, 175 Wn.2d 1025 (2012).

        2.      No Improper Conduct

        McMahon argues that the assistant attorney general’s argument was improper because the

State could only argue the mental abnormalities that an expert opined McMahon suffered from.

This is incorrect.

        Because determining whether a person has mental abnormality is based on psychology and

beyond the knowledge of the common juror, expert testimony is helpful to the jury’s ultimate

determination of whether the respondent suffers from a mental abnormality. See In re Det. of

Bedker, 134 Wn. App. 775, 778-79, 146 P.3d 442 (2006) (Determining whether a particular person

possesses 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 “is based upon the complicated science of human

psychology and is beyond the ken of the average juror.”). Therefore, experts may testify regarding

the respondent’s mental conditions, diagnoses, and the effect of diagnosed mental conditions on

the respondent’s behavior. However, in proving a mental condition to support a finding that a

respondent suffers from a mental abnormality, the State is not limited to mental disorders included

in the DSM testified to by an expert.2 In re Pers. Restraint of Young, 122 Wn.2d 1, 28, 857 P.2d

989 (1993).




2
  Although a specific DSM diagnosis is not required, both experts in this case diagnosed alcohol
use disorder based on the diagnostic criteria in the DSM.


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No. 50946-6-II


       Here, Dr. Abbott diagnosed McMahon with alcohol use disorder and identified how the

alcohol use disorder affected McMahon’s behavior.       Specifically, Dr. Abbott testified that

McMahon’s alcohol use disorder caused impulsivity, lack of remorse, and disregard for the safety

of others. And because of the effect of alcohol use disorder, McMahon acted out sexually against

his child victims. In addition, Dr. Abbott admitted that alcohol use disorder was an acquired or

congenital condition. Dr. Abbott’s testimony directly supported the facts the State relied on to

argue that McMahon’s alcohol use disorder met the legal definition of a mental abnormality.

Although Dr. Abbott testified that, in his opinion, the alcohol use disorder did not meet the

definition of a mental abnormality, that opinion was based primarily on his assessment that

McMahon’s alcohol use disorder was in remission. The State was permitted to argue a different

interpretation of the evidence applied to the law.

       Thus, the State did not misstate the law or make arguments that were unsupported by the

evidence. The State used the definition of mental abnormality from the jury instructions and the

statute. And the State directly referenced Dr. Abbott’s testimony to support its argument. The

State’s argument was a proper argument based on the evidence that was presented at trial.

Therefore, McMahon has failed to establish prosecutorial misconduct.

B.     INEFFECTIVE ASSISTANCE OF COUNSEL

       McMahon also argues that he received ineffective assistance of counsel because his

counsel failed to object to the State’s closing argument. To establish ineffective assistance of

counsel, McMahon must show the counsel’s performance was deficient and the deficient

performance resulted in prejudice. In re Det. of Moore, 167 Wn.2d 113, 122, 216 P.3d 1015 (2009)

(citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).



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No. 50946-6-II


“When an ineffective assistance of counsel claim rests on a failure to object, an appellant must

establish that an objection likely would have been sustained.” In re Det. of Monroe, 198 Wn. App.

196, 205, 392 P.3d 1088 (2017).

        Because the State’s argument was proper, it is not likely that the trial court would have

sustained an objection had McMahon’s counsel objected to the State’s argument. Therefore,

McMahon cannot establish deficient performance, and his ineffective assistance of counsel claim

also fails. Accordingly, we affirm.

        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.



                                                    Lee, A.C.J.
 We concur:



 Worswick, J.




 Cruser, J.




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