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           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Detention of                              No. 71343-4-1
ROY DONALD STOUT, JR.
                                                                DIVISION ONE
STATE OF WASHINGTON,

                           Respondent,
               v.                                               UNPUBLISHED OPINION


ROY DONALD STOUT, JR.

                           Appellant                            FILED: June 15, 2015

       Schindler, J. - Roy Donald Stout, Jr. appeals the trial court's denial of the CR

60(b)(11) motion to vacate his 2003 commitment as a sexually violent predator. Stout

claims that because the psychiatric profession has rejected the paraphilia NOS1

nonconsent diagnosis that his commitment was partly based on and his diagnoses have

changed over time, he is entitled to a new commitment trial. Because Stout has failed

to demonstrate extraordinary circumstances warranting the requested relief under CR

60(b)(11), we affirm.

                                                 FACTS


       Roy Donald Stout, Jr. has an extensive criminal history that includes both sexual

and nonsexual offenses beginning when he was 14-years-old. On multiple occasions,



       1 Not otherwise specified.
No. 71343-4-1/2



Stout approached strangers or casual acquaintances and engaged in—or attempted to

engage in—sexual acts without their consent.

      In 1997, Stout visited a casual acquaintance, fondled her, and attempted to kiss

her while she resisted. The State charged Stout with indecent liberties. Stout pleaded

guilty to burglary in the first degree and the court imposed a 75-month sentence.

      In 2001, the State petitioned to have Stout committed as a sexually violent

predator, alleging the burglary was sexually motivated. At the 2003 commitment trial,

Dr. Richard Packer, the State's expert, testified that he diagnosed Stout with paraphilia

NOS (nonconsent) and antisocial personality disorder. Based on Dr. Packer's

diagnoses and his testimony concerning the risk assessment factors, the trial court

found Stout was a sexually violent predator. The court committed him to the

Washington State Department of Social and Health Services Special Commitment

Center Program (SCC).

      This court affirmed Stout's commitment on appeal. In re Pet, of Stout, 128 Wn.

App. 21,114 P.3d 658 (2005), affd, 159 Wn.2d 357, 150 P.3d 86 (2007). Stout has

consistently refused to participate in sex offender treatment while at the SCC. In

subsequent annual reviews, including the reviews in 2010, 2011, and 2012, the trial

court found the State met its burden of establishing probable cause that Stout continues

to satisfy the criteria for a sexually violent predator. See RCW 71.09.090.

       In July 2013, the State filed a motion to schedule a review on whether Stout

continued to meet the criteria for a sexually violent predator. On August 22, Stout filed

a CR 60(b)(11) motion to vacate the 2003 commitment order. At the hearing on the

motion, Stout's attorney asserted the psychiatric community has now completely
No. 71343-4-1/3


rejected the diagnosis of paraphilia NOS (nonconsent) that formed a primary basis for

Stout's 2003 commitment, and the "last nail in the coffin for Paraphilia NOS" was its

recent rejection in the 2013 version of the Diagnostic and Statistical Manual of Mental

Disorders2 (DSM). Stout maintained the "huge changes in the science in these cases

over the last twelve years" constituted extraordinary circumstances under CR 60(b)(11).

Stout further claimed he was entitled to a new trial because the State's most recent

evaluation concluded he continued to meet the criteria for a sexually violent predator

based primarily on a diagnosis of antisocial personality disorder rather than the

combination of paraphilia NOS (nonconsent) and antisocial personality disorder.

         The trial court denied Stout's motion, concluding he failed to identify

extraordinary circumstances warranting relief under CR 60(b)(11). Stout appeals.3

                                             ANALYSIS


         CR 60(b) permits the trial court to relieve a party from a final judgment or order

for several specified reasons, including mistake, inadvertence, surprise, excusable

neglect, irregularity in obtaining a judgment, and a void judgment. Under CR 60(b)(11),

the court may vacate an order for "[a]ny other reason justifying relief from the operation

of the judgment." But CR 60(b)(11) is "a catchall provision, intended to serve the ends

of justice in extreme, unexpected situations." In re Pet, of Ward, 125 Wn. App. 374,

379, 104 P.3d 751 (2005). Relief under CR 60(b)(11) is limited to " 'extraordinary

circumstances not covered by any other section of the rule.'" In re Marriage of Yearout.



         2 Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders (5th ed.
2013).
      3The trial court also rejected Stout's contention that he had established probable cause for a new
commitment trial under chapter 71.09 RCW. On appeal, Stout does not challenge that portion of the trial
court's decision.
No. 71343-4-1/4


41 Wn. App. 897, 902, 707 P.2d 1367 (1985) (quoting State v. Keller. 32 Wn. App. 135,

140, 647 P.2d 35 (1982)). The circumstances must relate to irregularities that are

"extraneous to the action of the court or questions concerning the regularity of the

court's proceedings." Yearout, 41 Wn. App. at 902. Errors of law do not justify vacating

an order under CR 60(b)(11). In re Marriage of Furrow. 115 Wn. App. 661, 674, 63

P.3d 821 (2003).

       We review the trial court's denial of a motion to vacate under CR 60(b) for a

manifest abuse of discretion. In re Pet, of Mitchell, 160 Wn. App. 669, 675, 249 P.3d

662 (2011). The trial court abuses its discretion "only if there is a clear showing that the

exercise of discretion was manifestly unreasonable, based on untenable grounds, or

based on untenable reasons." Moreman v. Butcher, 126 Wn.2d 36, 40, 891 P.2d 725

(1995). Our review is limited to the trial court's decision denying Stout's motion to

vacate, not the underlying commitment order that he seeks to vacate. See Biurstrom v.

Campbell, 27 Wn. App. 449, 450-51, 618 P.2d 533 (1980) (an appeal from the denial of

a CR 60(b) motion "is limited to the propriety of the denial not the impropriety of the

underlying judgment").

       "In rare circumstances, a change in the law may create extraordinary

circumstances, satisfying CR 60(b)(11)." Ward, 125 Wn. App. at 380. Stout does not

allege or demonstrate any relevant change in the law. Rather, Stout relies on claims

that the psychiatric community has completely rejected the validity of the paraphilia

NOS (nonconsent) diagnosis in the years since his initial commitment and the assertion

that the "agreement rate" of the State's experts in his diagnoses is "far below a

reasonable degree of professional certainty." In essence, Stout's arguments are
No. 71343-4-1/5


allegations of newly discovered evidence. See CR 60(b)(3). Stout's arguments do not

constitute extraordinary circumstances or irregularities extraneous to the action of the

courts.


          Challenges to the paraphilia NOS (nonconsent) diagnosis as a basis for sexual

predator commitment are not new. Stout's brief on appeal relies heavily on a 2008

article criticizing the diagnosis. See Allen Frances, Shoba Sreenivasan, & Linda E.

Weinberger, Pefining Mental Pisorder When It Really Counts: PSM-IV-TRM and

SVP/SPP'5' Statutes. 36 J. Am. Acad. Psychiatry & Law, 375 (Nov. 3, 2008).

          Further, long before Stout's motion to vacate, in 1993, our Supreme Court

adopted the following observations in rejecting an analogous argument that a diagnosis

of paraphilia NOS (nonconsent) was invalid because it was only a residual category in

the then-current edition of the PSM:

                 "In using the concept of 'mental abnormality' the legislature has
          invoked a more generalized terminology that can cover a much larger
          variety of disorders. Some, such as the paraphilias, are covered in the
          PSM—111—Rt6]; others are not. The fact that pathologically driven rape, for
          example, is not yet listed in the PSM-III-R does not invalidate such a
          diagnosis. The PSM is, after all, an evolving and imperfect document.
          Nor is it sacrosanct. Furthermore, it is in some areas a political document
          whose diagnoses are based, in some cases, on what American
          Psychiatric Association ("APA") leaders consider to be practical realities.
          What is critical for our purposes is that psychiatric and psychological
          clinicians who testify in good faith as to mental abnormality are able to




          4 Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders: DSM-IV-
TR (4th rev. ed. 2000).
          5 Sexually violent predator/sexually dangerous person.
          6 Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders: DSM-III-R
(3rd rev. ed. 1987).
No. 71343-4-1/6


       identify sexual pathologies that are as real and meaningful as other
       pathologies already listed in the PSM."

In re Pers. Restraint of Young. 122 Wn.2d 1, 28, 857 P.2d 989 (1993)7 (quoting

Alexander P. Brooks, The Constitutionality & Morality of Civilly Committing Violent

Sexual Predators. 15 U. Puget Sound L. Rev. 709, 733 (1991-92)).

      Stout argues Young is distinguishable because the court was not addressing a

diagnosis that the PSM had expressly rejected. But contrary to Stout's argument, the

court in Young clearly emphasized that the critical issue was not whether a particular

diagnosis was included in or excluded from the PSM but, rather, whether the evidence

established " 'sexual pathologies that are as real and meaningful as other pathologies

already listed in the PSM.'" Young, 122 Wn.2d at 288 (quoting Brooks, The

Constitutionality & Morality of Civilly Committing Violent Sexual Predators, at 733).

Stout cites no authority suggesting the PSM governs the diagnoses of mental

abnormalities that permit the commitment of sexually violent predators.

       More recently, this court reiterated the Young holding in rejecting the argument

that the trial court must conduct a Frye9 hearing before the State may offer a diagnosis

of paraphilia NOS (nonconsent) as a basis for confinement. We noted Washington

courts "have repeatedly upheld SVP commitments based upon" a diagnosis of

paraphilia NOS (nonconsent). In re Pet, of Berry, 160 Wn. App. 374, 379-80, 248 P.3d

592 (2011) (citing In re Pet, of Post, 145 Wn. App. 728, 756-57 & n.18, 187 P.3d 803

(2008). Pisputes among experts about the validity of the diagnosis go to the weight of

the evidence, not its admissibility. Berry, 160 Wn. App. at 378-79, 382.


       7 Emphasis in original.
       8 Emphasis in original.
       9 Frve v. United States. 293 F. 1013 (D.C. Cir. 1923).


                                                    6
No. 71343-4-1/7



       Stout also contends he is entitled to a new commitment trial because the State's

experts changed their diagnoses during subsequent annual review evaluations. At the

initial commitment trial, the State's expert diagnosed Stout with a combination of

paraphilia NOS (nonconsent) and antisocial personality disorder. In a 2013 evaluation,

Pr. Paniel Yanisch diagnosed Stout with rule-out paraphilia NOS (nonconsent),

polysubstance abuse—in a controlled environment, antisocial personality disorder, and

borderline intellectual functioning.

       Stout cites no authority requiring the State to rely solely on the initial diagnoses

to satisfy its burden at annual review hearings to demonstrate he "continues to meet the

definition of a sexually violent predator." RCW 71.09.090(2)(b). Our Supreme Court

recently rejected a similar argument:

               [Petitioner] argues that because the State's experts originally
       testified he suffered from pedophilia and now the State's expert found
       insufficient evidence for that diagnosis, the State has not met its burden.
       His argument is unpersuasive. First, this court has affirmed commitment
       based on paraphilia NOS nonconsent and antisocial personality disorder,
       which are essentially [petitionee's remaining diagnoses. See [ IStout, 159
       Wn.2d [at] 363 .... Second, we rejected a similar challenge to continued
       civil commitment after an insanity acquittal when the detainee's diagnosis
       changed in State v. Klein, 156 Wn.2d 102, 120-21, 124 P.3d 644 (2005).
       While we cautioned that" '[d]ue process requires that the nature of.. .
       commitment bear some reasonable relation to the purpose for which the
       individual is committed,'" we found sufficient connection from the "original
       diagnosis of 'psychoactive substance-induced organic mental disorder'. . .
       and the current diagnosis of polysubstance dependence" to justify
       continued commitment. Id. at 119-20 (first alteration in original) (quoting
       Foucha v. Louisiana, 504 U.S. 71, 79, 112 S. Ct. 1780, 118 L Ed. 2d 437
       (1992)). We observed that "the subjective and evolving nature of
       psychology may lead to different diagnoses that are based on the very
       same symptoms, yet differ only in the name attached to it." ]d. at 120-21.
       Similar principles apply here. Without more, the change from a diagnosis
       of pedophilia to a "rule out pedophilia" and hebephilia diagnosis is not
       sufficient to require a new evidentiary proceeding.

In re Pers. Restraint of Meirhofer, 182 Wn.2d 632, 644, 343 P.3d 731 (2015).
No. 71343-4-1/8


       Stout makes no showing that any changes in his diagnoses were not reasonably

related to his original commitment or that they constituted extraordinary circumstances

under CR 60(b)(11). Stout does not demonstrate that ongoing disputes about the

validity of the paraphilia NOS (nonconsent) diagnosis, exclusion of the diagnosis from

the PSM, or the changes in his diagnoses over time constitute extraordinary

circumstances. The trial court did not abuse its discretion in denying his motion to

vacate under CR 60(b)(11).10

       Affirmed.




                                                SfcgjuV (Ar >
WE CONCUR:




                                                              6u*A '




         10 Because Stout failed to demonstrate extraordinary circumstances, we do not address the
State's contention that Stout's CR 60(b)(11) motion was not filed "within a reasonable time" and,
therefore, untimely.


                                                   8
