 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Detention of
EVERETTE BURD,                                  No. 67826-4-1


                    Appellant.                 DIVISION ONE

                                               UNPUBLISHED OPINION

                                               FILED: July 8, 2013


      Grosse, J. — Failure to request a Frye1 hearing on the validity of certain
medical diagnoses precludes a defendant from challenging the validity of those

medical diagnoses on appeal. Further, failure to request a Frve hearing ddgs mjtf.;
constitute ineffective assistance of counsel where, as here, the diagnosesr ar£rT;2
                                                                             i        ----;-"
                                                                            CO        'J~^7
accepted within the scientific community and our courts have previously heldjhat? r:;,

Frve hearings are not required for those diagnoses. Finding no merit in^he •%
                                                                                 ro


remaining arguments on appeal, we affirm the trial court's order of commitment.

                                     FACTS

       In 1989, at age 14, Everette Burd was found guilty of first degree criminal

trespass for entering a neighbor's home, rummaging through a 12-year-old's

underwear drawer, handling the undergarments, and masturbating on the bed.

In 1991, Burd sexually assaulted a 26-year-old house guest of a neighbor. Burd

forced his way in, pushed the woman down, and grabbed her crotch.                The

woman escaped and Burd was adjudicated for first degree burglary, indecent

liberties, and criminal trespass. Burd was sentenced to 168 weeks. Pending his




1 Frve v. United States. 54 App. D.C. 46, 293 F. 1013 (1923).
No. 67826-4-1/2


appeal, Burd was released with conditions and treatment to be provided by Dr.

Charles Lund.


       Burd violated his conditions of release, including the sexual deviancy

treatment requirements and was placed at Maple Lane School. While at Maple

Lane, Burd pinched a staff member on her buttocks and grabbed her arm as she

attempted to escape from him. He was also convicted of fourth degree assault at

the age of 18. On August 27, 1996, Burd, then 20 years old, sexually assaulted

a 17-year-old stranger, D.B. The victim had entered the bathroom in a church.

While in the stall she noticed a man's shoes, and tried to leave. Burd grabbed

her, placed her in a choke hold, and dragged her into another room. He ripped

off her shirt and bra, squeezed her breasts, and placed his hands down her

pants, uttering profanities. D.B.'s shouts were heard by another person who

managed to pull Burd off D.B. Burd was arrested and pleaded guilty to first

degree attempted rape for which he received a 90-month sentence.

       In 1997, Burd was evaluated for his amenability for sex offender

treatment. Burd admitted attacking a teenage boy and trying to rip off his clothes

but denied that it was sexual.    Throughout his incarceration, he had several

sexually related infractions.

       The State filed a petition to commit Burd as a sexually violent predator

(SVP). Pending trial, Burd was admitted to the special commitment center in

2006, but refused treatment until 2009. When he began treatment he admitted

that he had been masturbating the previous day for three hours nonstop to rape
No. 67826-4-1 / 3


fantasies involving the female staff at the hospital as well as women on the

television.


       At the commitment trial, the State presented expert testimony from Dr.

Douglas Tucker, who conducted an assessment of Burd to determine if he met

the SVP criteria.     Dr. Tucker concluded that Burd's mental abnormalities

predisposed him to commit sexual acts that endangered the health and safety of

others and that he was likely to engage in predatory acts of sexual violence if not

confined to a secure facility. Burd presented the expert testimony of Dr. Fabian

Saleh, who disagreed with Dr. Tucker's diagnoses and questioned the validity of

those diagnoses.

       The jury found that Burd met the criteria for an SVP.            Based on this

finding, the trial court ordered him civilly committed. Burd appeals.

                                       ANALYSIS


       Burd first contends that his commitment violates his rights to due process

because it is premised on diagnoses that are overbroad, insufficiently precise,

and not accepted by the medical profession. Burd also contends he received

ineffective assistance of counsel because his counsel failed to request a Frve

hearing on the diagnoses of paraphilia not otherwise specified (NOS) nonconsent

and antisocial personality disorder.

       Under SVP commitment statutes, due process requirements are satisfied

"if a finding of dangerousness is linked to the existence of a mental abnormality

or personality disorder that makes it seriously difficult for the person with the
No. 67826^-1/4


abnormality or disorder to control his or her behavior."2 Burd contends that
paraphilia NOS nonconsent is not recognized by the psychiatric profession and

that the admission of Dr. Tucker's testimony therefore violated his due process

rights.

          This court rejected a similar argument in In re Detention of Post,3 noting
that such an argument constituted an improper attempt to sidestep a failure to

challenge the diagnosis by means of a Frve hearing in the trial court:

          Post improperly attempts to transform that which should have been
          raised as an evidentiary challenge in the trial court into a question
          of constitutional significance on appeal. In point of fact, Post
          attempts to sidestep the fact that he did not seek a Frve hearing in
          the trial court, and, thus, has not preserved an evidentiary
          challenge for review.[4]
In a Frve challenge, the trial court determines whether a scientific theory or

principle "'has achieved             general   acceptance   in the   relevant scientific

community.'"5 A party's failure to raise a Frve challenge before the trial court
generally precludes appellate review. Because Burd did not raise the issues

below, the State did not have an opportunity to respond fully to the challenge he

now asserts for the first time on appeal. Burd's expert testimony challenging the




2 In re Pet, of Post. 145 Wn. App. 728, 755, 187 P.3d 803 (2008), affd, 170
Wn.2d 302, 241 P.3d 1234 (2010) (citing Kansas v. Crane. 534 U.S. 407, 410,
413, 122 S. Ct. 867, 151 L Ed 2d 856 (2002)).
3 145 Wn. App. 728, 187 P.3d 803 (2008).
4 Post, 145 Wn. App. at 755-756.
5 In re Pers. Restraint of Young. 122 Wn.2d 1, 56, 857 P.2d 989 (1993) (quoting
State v. Martin. 101 Wn.2d 713, 719, 684 P.2d 651 (1984)), superseded bv
statute as stated in In re Pet, of Thorell. 149 Wn.2d 724, 746, 72 P.3d 708 (2003)
(Laws of 1995, ch. 216, §9).
No. 67826-4-1 / 5


validity of the paraphilia NOS nonconsent diagnosis therefore goes to the weight

ofthe evidence, not its admissibility.6
       Burd's challenge to Dr. Tucker's diagnosis of antisocial personality

disorder is likewise precluded from being raised on appeal.        Burd argues that

admitting evidence of this diagnosis violates due process guarantees because it

is too imprecise and broad to differentiate a dangerous sexual offender from the

typical criminal recidivist and, thus, the evidence was not helpful to the trier of

fact under ER 702.7       Again because Burd did not challenge Dr. Tucker's
testimony on this basis below, he has waived the issue on appeal.8
       Burd alternatively argues that his counsel's failure to request a Frve

hearing on the medical diagnoses and to object to the admission of the antisocial

personality diagnosis as being unhelpful under ER 702 denied him effective

assistance of counsel.       To establish ineffective assistance of counsel, a

defendant must demonstrate both (1) that his attorney's representation fell below

an objective standard of reasonableness, and (2) a reasonable probability that,

but for counsel's deficient performance, the result of the proceeding would have

been different.9 Washington courts have repeatedly upheld commitments based




6 See Post, 145 Wn. App. at 757 n.19; In re Pet, of Berry. 160 Wn. App. 374,
382, 248 P.3d 592, rev, denied. 172 Wn.2d 1005 (2011).
7 ER 702 provides that an expert witness may offer an opinion "[i]f scientific,
technical, or other specialized knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue."
8 See Post. 145 Wn. App. at 756 n.16; see also In re Pet, of Sease. 149 Wn.
App. 66, 201 P.3d 1078 (2009) (civil commitment can be based on a personality
disorder alone when supported by expert testimony).
9 State v. McFarland. 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).
No. 67826-4-1/6


on paraphilia NOS nonconsent or antisocial personality disorder diagnoses under

FrveorER702.10

       Burd has not identified any SVP proceedings in which such evidence was

excluded under Frve or ER 702.       Indeed, any objection under ER 702 would

have been overruled since courts have held that a civil commitment can be

based on a personality disorder alone when supported by expert testimony.11 On
the record here, Burd cannot demonstrate any reasonable likelihood that the trial

court would have excluded testimony on paraphilia NOS nonconsent and

antisocial personality disorder diagnoses under either Frve or ER 702.       Thus,

Burd cannot demonstrate that his counsel was ineffective or that he suffered any

prejudice.12
Exclusion of Evidence

       Burd argues that the trial court erred in excluding portions of his expert's

testimony. A trial court has broad discretion in admitting expert evidence and a

party may introduce such evidence only where the expert is properly qualified,

relies on generally accepted theories, and is helpful to the trier of fact.13 An
expert must have a sufficient factual foundation for his opinion.14 Conclusory or
speculative expert opinions that lack an adequate foundation are inadmissible.15



10 See Post. 145 Wn. App. at 757 n.18; Young. 122 Wn.2d at 37.
11 Sease. 149 Wn. App. 66.
12 See McFarland, 127 Wn.2d at 334-35; see ajso Berry, 160 Wn. App. at 382.
13 ER 702; Anderson v. Akzo Nobel Coatings. Inc.. 172 Wn.2d 590, 602, 260
P.3d 857 (2011).
14 Queen City Farms. Inc. v. Cent. Nat'l Ins. Co. of Omaha. 126 Wn.2d 50, 104,
882 P.2d 703 (1994).
15 Safeco Ins. Co. v. McGrath. 63 Wn. App. 170. 177, 817 P.2d 861 (1991).
No. 67826-4-1/7


       On cross-examination, Burd queried Pr. Tucker about a debate entitled

"Stirring the PSM-V Caldron" that Pr. Tucker participated in at the annual

American Academy of Psychiatry and the Law. At the conclusion of the debate,

a symbolic vote was taken in which only two people in the audience voted to

include paraphilic coercive disorder, while 32 people voted against its inclusion.

Pr. Tucker characterized the audience as people who were not necessarily

experts in sexual offenders.

       Burd sought to continue this line of questioning with his own expert Pr.

Fabian Saleh, but the State moved to exclude any testimony from Pr. Saleh

about the informal vote that occurred at the debate.           The State argued that

because Pr. Saleh was not present, the testimony was hearsay and further there

was no foundation for the reliability of the scientific evidence at the debate. In his

offer of proof, Burd asserted that Pr. Saleh was the chair of the sex offender

committee for several years at the American Academy of Psychiatry and the

Law, that he would testify that in order to have a debate, peer reviewed articles

and proposals had to be submitted, and that people vested in the outcome of the

debates, including forensic psychiatrists attended. The court ruled that such a

generic debate was not relevant under ER 703 as a basis for admissible expert

testimony, and that Pr. Saleh's absence from the debate prevented him from

characterizing the content and participators in the debate because he was not

present. Because the testimony was hearsay, irrelevant, and not likely helpful to

the jury, the trial court did not abuse its discretion by excluding it.
No. 67826^-1 / 8


Jury Instruction

       Burd argues that the evidence was insufficient to show that he suffered

any mental abnormality or personality disorder and that the court erred in issuing

the following instruction:

       [M]ental abnormality and personality disorder are alternative means
       to proving [the second element]. The jury need not be unanimous
       as to whether a mental abnormality or personality disorder has
       been proved beyond a reasonable doubt so long as each juror finds
       that at least one of these alternative means has been proved
       beyond a reasonable doubt.

Pr. Tucker testified that Burd suffered from four mental abnormalities—paraphilia

NOS nonconsent,        mild mental retardation, fetishism,    and schizoaffective

disorder, and two personality disorders—antisocial personality disorder and

borderline personality disorder. Burd contends that because the State argued

the combination of these diagnoses predisposed Burd to commit sexual violent

offenses, the State failed to prove that each diagnosis in itself was sufficient to

support a finding of mental abnormality or personality disorder.

       But it is not the particular diagnosis that is the alternative means. Those

diagnoses form the particular facts from which a jury could determine the

presence of either a mental abnormality and/or a personality disorder. It is the

presence of a mental abnormality and/or personality disorder that are two

alternative means of establishing the mental illness element.16 To do as Burd
argues would create a means within a means unanimity analysis.




16lnrePet.ofHalgren. 156 Wn.2d 795, 811, 132 P.3d 714 (2006).

                                         8
No. 67826^-1 / 9


      In re Petention of Sease is instructive.17 There, the State relied on two

personality disorders to establish the required element of mental abnormality or

personality disorder. As here, the parties did not disagree that unanimity rules

apply in SVP cases.18 Sease argued that because he had two personality
disorders, the jury needed to be unanimous on which of the two diagnoses made

him an SVP. The court rejected the argument stating:

      The SVP statute delineates two alternatives for satisfying the
      State's burden of establishing a mental condition "which makes the
      person likely to engage in predatory acts of sexual violence if not
      confined in a secure facility"—mental abnormality or personality
      disorder. RCW 71.09.020(16). There is no dispute that Sease
      suffered from one or, possibly, two personality disorders.

             As in [In re Personal Restraint ofl Jeffries, [110 Wn.2d 326,
      752 P.2d 1338 (1988)] the jury here need only have unanimously
      found that the State proved that Sease suffered from a personality
      disorder that made it more likely that he would engage in acts of
      sexual violence if not confined to a secure facility. The jury need not
      have unanimously decided whether Sease suffered from borderline
      personality disorder or antisocial personality disorder. Therefore,
      the trial court did not err in failing to give a unanimity instruction and
      it is not an error that Sease can raise for the first time on appeal.1191
"Likely to Reoffend" Standard

       Burd next challenges the "likely to reoffend" standard for determining

whether an offender is at risk for reoffense, a part of the SVP determination. He

contends that this standard is inconsistent with the clear and convincing evidence

standard that is constitutionally required.    But as he acknowledges, our state

17 149 Wn. App. 66, 201 P.3d 1078 (2009).
18 In re Pet, of Pouncv. 144 Wn. App. 609, 617, 184 P.3d 651 (2008), affd, 168
Wn.2d 382, 229 P.3d 678 (2010).
19 Sease. 149 Wn. App. at 78-79: see also Halgren. 156 Wn.2d at 811 (unanimity
instruction is not required as to which of the two types of mental illnesses
specified in the statute underlies a determination that one is an SVP.)
No. 67826-4-1/10


supreme court has already rejected this argument in In re Petention of Brooks.20
The Brooks court stated:


       RCW 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 of certitude in the
       factual conclusion that the defendant more likely than not would
       reoffend if not confined in a secure facility. As set out in the statute,
       the fact to be determined is not whether the defendant will reoffend,
       but whether the probability of the defendant's reoffending exceeds
       50 percent. As long as the SVP statute requires the fact finder to
       have the subjective belief that it is at least highly probable that the
       defendant is likely to reoffend, it meets the standard set forth in Jn
       re Pependencv of K.R. Chapter 71.09 RCW meets and exceeds
       that standard. Brooks' constitutional claims fail.1213

The "likely to reoffend" standard is constitutional.

Prosecutorial Misconduct

       Burd argues that the prosecutor committed misconduct during her rebuttal

argument.     Prosecutorial misconduct requires a showing that the prosecutor's

conduct was both improper and prejudicial in the context of the entire record and

circumstances at trial.22 A prosecutor may not appeal to the passions of the jury
and encourage it to render a verdict based on emotion rather than properly

admitted evidence.23 The prosecutor has wide latitude in making arguments to
the jury and prosecutors are allowed to draw reasonable inferences from the




20 145 Wn.2d 275, 298, 36 P.3d 1034 (2001), overruled on other grounds by
Thorell. 149 Wn.2d 724, 72 P.3d 708 (2003).
21 145Wn.2d at 297-98; see ajso In re Pet, of Mulkins. 157 Wn. App. 400, 407,
237 P.3d 342 (2010) (rejecting an identical constitutional challenge to RCW
71.09.020).
22 State v. Hughes. 118 Wn. App. 713, 727, 77 P.3d 681 (2003) (citing State v.
Stenson, 132 Wn.2d 668, 718, 940 P.2d 1239 (1997)).
23 State v. Belqarde. 110 Wn.2d 504, 507-08, 755 P.2d 174 (1988); State v.
Echevarria. 71 Wn. App. 595, 598, 860 P.2d 420 (1993).

                                          10
No. 67826-4-1/11


evidence in closing arguments.24 Prejudice is established if there is a substantial
likelihood the misconduct affected the jury's verdict. Where no objection is made

to the remarks, the reviewability of the alleged prosecutorial misconduct depends

on whether the prosecutor's conduct was so flagrant and ill-intentioned as to

create prejudice that could not be negated by a curative instruction.25
         The jury watched a video deposition of Dr. Tucker interviewing Burd.26 In
rebuttal argument, the prosecutor stressed that Burd was a predator, and did

nothing more than paraphrase admitted testimony that the jury had already

heard.     Because the prosecutor's argument directly addressed Burd's own

testimony and was responsive to issues argued by the defense, Burd fails to

show that these remarks were improper.27
         Accordingly, we affirm the commitment.




WE CONCUR:




                                                      £crX»X

24 State v. Gregory. 158 Wn.2d 758, 860, 147 P.3d 1201 (2006).
25 State v. Warren. 165 Wn.2d 17, 43, 195 P.3d 940 (2008) (quoting State v.
Brown. 132 Wn.2d 529, 561, 940 P.2d 546 (1997)).
26 Exhibit 78B is a CD (compact disc) of a portion of the transcript which was
heard by the jury and Exhibit 72 provided by the State is an accurate
transcription of that CD. Burd argues that the verbatim report of proceedings is
the "official" record, but it is the CD itself that is official and was heard by the jury.
The transcription the State provided to this court accurately reflects the recording
of the CD.
27 Stenson. 132 Wn.2d at 727.


                                           11
