                                                                                           F11—ED
                                                                                   COLI- i OF APPEP,LS
                                                                                        111V1S110i1 TI

                                                                                  2113 DEC - 3   AM 9: 2 1

                                                                                  S * XFE OF WASK111GT011
                                                                                    T
    IN THE COURT OF APPEALS OF THE STATE                                                          GTON
                                                                                OY WAS
                                             DIVISION II

                                                                              No. 43153 -0 -II
IN RE DETENTION OF:


                JOE L. TODD,


                                                                     UNPUBLISHED OPINION




       HUNT, J. —    Joe L. Todd appeals a trial court order civilly committing him as a sexually

violent predator (   SVP)   under chapter   71. 09 RCW        following   a   bench trial.   He argues that the


evidence was insufficient to establish a recent overt act, a statutory prerequisite for a SVP

commitment.'    We disagree and affirm.


                                                     FACTS


                                              1. BACKGROUND


       A. Prior Juvenile and Adult Sex Offense History; Juvenile Sex Offender Treatment

       In juvenile court in 1990, at 15 years of age, Joe L. Todd pleaded guilty to his first sex

offense:   indecent liberties   with a   four -
                                              year   -old   boy. Todd later admitted to having had sexual

contact with the victim more than 20 times over a three -
                                                        month period.




 Although Todd also assigns error to several findings of fact and conclusions of law, he does not
present any argument related to these assignments of error beyond asserting that the State failed
to prove a recent overt act. Accordingly, we limit our analysis to the recent overt act issue. RAP
10. 3( a)( 6). In so doing, we consider any unchallenged findings as verities on appeal. State v.
Hill, 123 Wn.2d 641, 644, 870 P. 2d 313 ( 1994).
No. 43153 -0 -II



         In July 1991, Todd had repeated sexual contact with an eight -
                                                                      year -old acquaintance and

was    adjudicated    guilty       of   first degree     child rape          in juvenile         court.     He received sex offender


treatment while      in juvenile custody ( 20            months).            After his release in 1994, Todd participated in


      polygraph
a pre -              interview          during   which   he ( 1)     admitted           to    having   visited   pornography   stores; (   2)


having had contact with children at his church, which he attended to gain access to children " in a

safe environment"; (      3) " peeping"          at children       in    public restrooms at various stores; (             4) becoming

aroused while     holding      a   16- month      old child at church; (
                                                  -                                     5) having numerous sexual contacts with

males at rest areas and a store             bathroom; (       6) masturbating to fantasies of children as he peeped

on them in bathrooms; and ( 7) having fantasies involving the sexual abuse of children in public

restrooms. 2A VRP at 272.


            In 1997, then 22- year -old Todd was on his way to visit his mother for Christmas when he

became aroused while in a public restroom and decided to go to an adult video store hoping to

find   an   adult male sex partner.              That   all   the    stores were closed                frustrated Todd.    Later, at his


mother' s home, he sexually assaulted at least one child. Todd pleaded guilty to first degree child

molestation and second degree assault stemming from this incident:

                                          B. Adult Sex Offender Treatment Plan


            While in adult prison for these 1998 convictions, Todd participated in a sex offender


treatment     program.    In 2007, Todd           completed a "           Relapse Prevention Plan," in which he listed:


                   four behaviors that he               needed      to   avoid: (        1)
                                                                              Playing with children; ( 2) wandering
                   orwalking            round with no     destination, ( 3) casual sex, and ( 4) isolating himself, see
                   Ex 13 at 3;


                   four   situations        he   needed       to    avoid: (       1)    Having        contact   with minors, (   2) using
                   public restrooms unless               they      are' one- person restrooms, (             3) conflicts with his boss
                   for missing           work     or   school,      and (     4)
                                                       overextending his personal resources or
                   making too many commitments, see Ex. 13 at 3;


                                                                         2
No. 43153 -0 -II




                    five     people     he   needed           to    avoid: (       1)   Minors, ( 2)     victims, (      3) "[   p] eople on
                    placement," (         4) "    people           seeking       casual    sex,"    and, (   5) "[    p] eople who have
                    children,"        Ex. 13 at 3;


                    four "[    e] motional [ clues" that would indicate that " something is going on" or was
                    in a " risky situation" and that he should monitor " so as to prevent further sexual
                    assaults ": (      1) Depression, ( 2) boredom, ( 3) sexual frustration, and ( 4) loneliness,
                    Ex. 13 at 3; and


                    six "    ongoing risk factors for [ his]                    sexual assault,"     in other words, his " triggers ":
                     1) "     Frustration— especially in                         area     of   fantasy       and      masturbation," (      2)
                      i] nteracting         children," ( 3) "[
                                           with                u] sing public restrooms," ( 4) "[ flack of

                    transparency," (  5) "[ e] ntitlement— feeling owed sex," and ( 6) "[ c] oping with
                    feeling left out." Ex. 13 at 5.

          To deal     with     these factors, Todd                 proposed                        tools,"
                                                                                   several " exits /                 including that he use

public    restrooms         only if   they   were       single -person, rather             than    multi-person.         Ex. 13   at   5.   He


further   noted    that among the "          seemingly unimportant decisions" he might make that were high

risk factors was not leaving restrooms if he became aroused or thought' someone else might be

aroused,    and     he identified         a "[   1]   apse"    as playing with children, going to public restrooms,

walking    without a        destination,     and      having fantasies            about children or anonymous sex.                 Ex. 13 at


7.


                                                             C. Recent Conduct


          After his release from prison into community supervision in February 2009, Todd was
                                                         2
designated    a    level three    sex offender.               In May 2009, Todd told his aftercare treatment specialist

Mark Chapman, that he ( Todd) had just entered a Target store bathroom and masturbated while


signaling to strangers that he wanted sexual relations by " dropp[ ing] his pants" and moving his
2
     Level three   sex offenders are "           the    most       likely   to   reoffend."       State v. Sanchez, 177 Wn.2d 835,
840 -41, 306 P. 3d 935 ( 2013).




                                                                            3
No. 43153 -0 -II


                                      3
foot    under   the stall door.             113 VRP      at   183.    Chapman and Todd' s Community Corrections

Officer ( CCO) Anthony Shaver ( 1) recognized this behavior as part of Todd' s offense cycle, a

step that     could   lead him to         reoffend; (   2) decided to address this behavior as a " treatment issue ";


and (   3)    imposed a supervision condition prohibiting Todd from entering into any restroom

accessible      to the   public   or minors and          requiring him to           use   only locked    single restrooms.   2A


VRP at 347.


             The next day, Todd reported suicidal thoughts and feelings of hopelessness, which

Chapman believed indicated an elevated risk of reoffense. A few days later, Todd told Chapman


that he ( Todd) had inadvertently encountered several minors in a sporting goods store, that he

had     experienced       feelings        indicating he       was     becoming           sexually   excited,   and that he had


immediately left the store.

             In June, Todd told Chapman that he ( Todd) had gotten off a public bus after becoming

sexually aroused when he noticed a teenage boy wearing pants that exposed the boy' s

underwear.          In July, Todd disclosed to his therapy group that he had fantasized he was a young

boy being sexual with an older man, that he had masturbated to that fantasy, and that he had

realized      the   fantasy   was "   inappropriate."         113 VRP        at   194.    Later that July, Todd also disclosed

that he had become aroused when he heard male children' s voices on a public bus, so he bit his

tongue to distract himsel£ 4 Todd also disclosed that he had gone to the adult movie section of a



3 In a later deposition, Todd stated that he was aroused by the thought of having sexual contact
with " the guy" who had gone into the next stall. 2A VRP at 257.

4 Chapman believed that the only reason Todd would need to intervene by biting his tongue was
if he thought it       was a sexual " risk."        113 VRP      at   196.
No. 43153 -0 -II



video store   intending    to find    an adult with whom          to have   a sexual encounter.    5 Around that same

time, Todd also admitted that he had been swimming in Salmon Creek, an area often used by

young    males and    females.       Todd became angry and argumentative when Shaver told him not to

return to the area.


         In October, Todd encountered some sexually explicit photographs on the internet while
                                                                                      6
doing    computer research at college         for   a paper on      gay   marriage.       Realizing that this behavior

was wrong, he told Chapman that he would use only computers at another location that had

appropriate    content    filters.    Despite this, Todd again viewed sexually explicit material while

using a computer at the college 16 days later.

         In late November, Todd once again used the college computers to view sexually explicit

materials,    including    the   sites "   Hairy    Bears,"   which    depicted    older    men,   and "   Barely Legal

Boys,"    which   depicted    adult males     portraying "    young teen boys" performing sexually explicit

acts.7 Todd also admitted returning to a video store " with the intent to have sexual contact" with




5 At some point, Todd had also reported that he had entered a video store, had noticed some
sexually explicit material, had become aroused, and then had left the store and reported the
incident to Chapman.


6 One of Todd' s supervision conditions prohibited him from viewing sexually explicit material.
Todd testified at trial that he had inadvertently seen this sexually explicit material on the
computer and that he had immediately logged off and contacted Chapman.

7 1B VRP at 201, 202, 204.



                                                              5
No. 43153 -0 -II



adult males,         despite    knowing      it   would     be   a violation of   his community custody             conditions.'   1B


VRP at 206. Todd served 17 days in custody for this violation.9

          In a later deposition, Todd admitted that he had sexual fantasies about men having sex

with     boys   six    times    while   he   was    in jail for his community custody                 violation.   After his release


from custody in December, Todd told Chapman that he found it difficult to control his urge to

access pornography on the internet.

           In early January 2010, Todd missed a group therapy session; Chapman asked him to

come     in for      a " one -on -
                                 one    to discuss       some     things."   1B VRP       at   208.    During this meeting, Todd

admitted that he had gone to an adult video store and had had sexual contact with several men

whom      he did       not   know but        who    were     approximately 10        years       older   than he    was.   Todd also


admitted     that he had        again visited       the "   Barely   Legal Boys"     site.     1B VRP at 211.


           Chapman spoke to Shaver; together they decided that Todd should be incarcerated for

violating his community custody conditions because his " acting out sexually" was increasing and

this "   put[ ]      him in that higher           risk   category."     1B VRP       at   211.     Shaver was concerned about


Todd' s viewing pornography, even though the " Barely Legal [ Boys]" site purported not to show


anyone under           18, "[   b] ecause the risk behavior would still be there" if Todd was fantasizing or

focusing        on   the   fact that the     participants appeared           to be   children.        2A VRP   at   368.   Todd was


placed     in custody for 200                days for        this    violation.      Shaver also referred Todd for civil


commitment as an SVP.




8 Todd also told Chapman that his sexual arousal in response to minors was increasing.

9 Todd lost his job due to this incarceration.




                                                                       R
No. 43153 -0 -II



                                        II. SVP CIVIL COMMITMENT BENCH TRIAL


          Todd waived his right to a jury, and the SVP civil commitment case proceeded to a bench

trial.   At trial, both Todd' s and the State' s experts agreed that Todd suffers from pedophilia, a

mental disorder.


                                                        A. State' s Evidence


          The    State'   s       witnesses        included Chapman,       Shaver, a treatment provider, polygraph


examiners,      and   the State'      s psychologist       Dr. Brian William Judd.       The State also played several


portions of Todd' s June 2011 videotaped deposition.


                                       1.    Todd' s June 2011 Videotaped Deposition


          In the deposition testimony played for the court, Todd identified several of his risk

factors for reoffending              against       children, which   included ( 1)   getting depressed, (   2) not setting

adequate    boundaries, ( 3)          being        around children, and (   4) viewing pornography.     He commented


about why viewing pornography was a significant risk factor as follows:

                   In my opinion, because I don' t think it would be too difficult to keep
          digging     further       and     find   real child   pornography.    With the numberjust finding
          the   number        I   see even    that portray adult     men   acting younger. I' m very certain it
          probably wouldn' t have taken a whole lot more work to find something else that
          would have been child pornography, and that' s a boundary I don' t need to cross,
          because [...].             If I ever allow myselfjust to think that children can ever be
          appropriate sexual partners, then I run the risk ofreoffending.

1B VRP at 164 ( emphasis added).


          Todd also explained an " offense cycle ":


                      T] he offense cycle is identified as behaviors that, if left unchecked, will
          lead into a next step, a next step until a person offends. And then, there are steps
          after that a person tries to use to mitigate their offense in their mind.  They are
          liable to continue repeating that chain of behavior.

2A VRP at 251 -52.



                                                                     7
No. 43153 -0 -II



            Todd further stated that 30 percent of his sexual fantasies involve children and that these

fantasies involved him touching the              child' s genitals.            But he denied having masturbated to " any

deviant,     sexual    fantasies in    over a year"         and asserted that the last time he had masturbated to


such   fantasies    was while    he    was   in jail in March         or   April 2010. 2A VRP           at   254. He stated that


he had allowed himself to masturbate to fantasies while in jail because he was " struggling with

being   locked up"       and was "     coping   with"       it sexually        by    masturbating.    2A VRP      at   254 -55.    He


admitted that he had difficulty controlling his sexual urges when he was out in the community,

but he was not specific about whether this difficulty involved children.

            Todd also admitted that in January 2010, he had told Chapman that he " had been doing

pornography        and   that [ he] had had     sexual contact without permission";                   but he stated that he had


not given       Chapman      much   detail because he knew he                  would    be jailed for his    violations.   3B VRP


at   671.    Todd further admitted that he had not told Chapman that he ( Todd) had been fantasizing

about   the "   guys   that [ he] looked     at on   Barely    Legal Boys that looked              younger."    3B VRP at 674.


                                                 2. Polygraph examiner


            A   polygraph examiner testified about              Todd'      s   January      2010   polygraph.    During this test,

Todd had ( 1) admitted to having accessed pornography that day on computers at WorkSource;

 2)   stated    that he had been taken          off   his   medication; (           3) mentioned being more suicidal after

losing his job and becoming depressed; and ( 4) stated that he had been feeling " more suicidal

since   he had     started   to look   at   pornography. 2A VRP                 at   310.   According to the examiner, Todd

had also mentioned looking at pornography depicting juvenile males engaging in sexual acts

with adult males.           When the examiner had asked Todd what was the most serious thing he had

done    since    his last   exam,   Todd had     responded, "`         Child pornography. "'            2A VRP      at   312.     Todd




                                                                  8
No. 43153 -0 -II



had also stated that he had had a fantasy about watching a male have sex with an 11 or 12 -year-

old child.



                                             3.   CCO and therapy providers

          In addition to testifying about the facts set out above, Chapman testified that Todd' s

behavior in the Target bathroom               was a risk         factor for offending           against "[ a]     minor, or anyone,



anyone      sexually,"   noting that Todd had himself identified this type of behavior as a risk factor

when   he    was     in treatment.      1B VRP           at   183.    Chapman also testified that even viewing adult

pornography was risky for Todd because it objectified and sexualized people and would feed into

Todd' s     sexual    arousal   and   sexual      behavior, " which is identified as a risk for him to reoffend


against     minors."      1B VRP        at   201.        Chapman testified that by November 2009, Todd was

 starting to    cross    his   own   boundaries      and      boundaries that         were created       for him[, a] nd that [ this]


was a risk    factor."    1B VRP at 206.


          Shaver similarly testified that Todd'                  s    having    casual    sex     in   public    bathrooms    was " an




identified risk pattern of that once he starts engaging in the casual sex then that leads to the

possibility    of    offending   against a child."              2A VRP        at   335.   In addition, one of Todd' s group

therapy facilitators, Scott W. Jones, testified that as recently as August 2011, Todd had admitted

experiencing some arousal to the children in a Harry Potter movie.

                                                              4. Dr. Judd


          Dr. Judd testified that in April 2010, he interviewed Todd and that Todd had stated ( 1)

that " he   experienced about         30 [ percent]       arousal     to   children "; and ( 2)    " that he found the arousal to


children was something that was distressing and he made every effort to substitute, if you will,

adult males     for   children   in   an effort     to   curtail     the   behavior   and   his   arousal   to   children."   2B VRP




                                                                      E
No. 43153 -0 -II



at 449, 450. During this interview, Dr. Judd asked Todd if it was " safe to say that [ he was] really

struggling with [ his] arousal both in custody and in the community during this period of time ?"

Todd    responded, "`       Yes. That         was   the   reason   I   was   looking    for   an age appropriate partner. "'     2B


VRP at 461 -62.

            Dr. Judd testified that although Todd had identified in treatment several factors that


placed      him    at   high     risk   to    offend      and   various      interventions, "      when it came time to fully

implement[ ] these [ the interventions],                    when he was in the community, it appeared that he was

having      progressive     failures in terms          of   implementation."          2B VRP       at   505.   Dr. Judd specifically

noted that Todd' s going into a Target store restroom to seek anonymous sex placed Todd in a

 high   risk situation"          that Todd himself had identified. 2B VRP                     at   505.   Dr. Judd opined that ( 1)


Todd'   s   pornography viewing               was also a risk      factor; ( 2)     Todd' s viewing pornography depicting

individuals        who appeared underage was, "                 per [ Todd' s] admissions, reinforcing deviant patterns

of arousal "; and (        3) Todd       was     increasingly      engaging in behavior he knew to be " high risk,"


 demonstrating progressive slippage throughout the time he was in the community beginning on

 May     12, 2009]."       2B VRP at 506.


            Dr. Judd      also   testified    about    Todd'    s offense cycle.       He stated an offender' s offense cycle


is based on behavior chains that led up to prior offenses and that these behaviors can indicate

when an offender            is "   escalating into either a hands on or a non -contact offense of some sort."

3A VRP        at   517.    When the chain of behaviors is identified, it provides a " basis [ of] treatment


insofar as treatment will focus on disrupting [ the] chain or intervening in those factors, which

were    associated with. prior               offending."        3A VRP       at   517 -18.    Dr. Judd concluded that Todd' s




                                                                       10
No. 43153 -0 -II



behaviors that had started in 2009 created a reasonable apprehension that Todd was in his


offense cycle while under supervision in the community. Specifically, Dr. Judd testified:

            I] t   appears    that his    offense cycle     is   one   that    would    be' initially   ...   triggered ...

         by        feelings    of   loneliness, isolation, boredom,                maybe   depression, anxiety. And
         these       serve as sort of     distal   stimuli,   if you    will,      for triggering
                                                                                                a cycle. So, in other

         words, these are emotions that he may encounter, which typically, in the past, for
         Mr. Todd has led into a pattern of sexualized coping in some fashion or another.
         Either through anonymous sex, through peeping, through voyeurism, maybe some
         exhibition —exhibitionism.                 And, that these factors lead into his attempt to cope
         with these feelings, with these emotions, with these experiences, leads into this
         particular pattern of conduct and behavior, which can escalate into committing
         offenses against children or it can remain simply within a sexually compulsive
         pattern entailing non -criminal behavior with adult males.

3A VRP        at    522.   Although Dr. Judd stated that Todd could have responded to the offense cycle


by engaging in sex with adults, Todd' s repeated viewing of images that depicted people who

looked like young boys engaging in sex was concerning because " this was clearly reinforcing

 Todd'   s]   deviant      arousal"    and was not        merely   a   way     of " coping with urges."          3A VRP at 530; 4


VRP at 921.


                                                      B. Todd' s Witnesses


         Todd         called    two    witnesses:     treatment         provider       Michelle Klink,        and   himself.   Klink


testified     about what         an offender       cycle   was.    She stated that in treatment, an offender would


identify the cycle that precipitated his offenses, identify what " would put them at risk for acting

out   sexually,"       and identify how he had justified his behavior in the past so he would be aware of

his   vulnerabilities.          3A VRP       at    636.    Klink opined that Todd' s behaviors since May 2009

indicated he "        was     actually in   cycle."   3A VRP       at       642.    And she believed that Todd was possibly

 more vulnerable              to acting   out   sexually," but         not   necessarily " reoffending."            3A VRP at 643.




                                                                       11
No. 43153 -0 -II



Todd denied accessing any actual child pornography sites or telling anyone he had looked at

such sites.



         The trial          court   found that in viewing pornography             sites,   fantasizing about sexual

situations involving children, becoming aroused to children in public, entering public restrooms

to masturbate and seek sexual relationships with strangers, and frequenting video stores to seek

and to engage in anonymous sex with strangers, all of which related to Todd' s offense cycle,


Todd had      committed a recent overt act.           Based on these findings, the trial court entered an order


committing Todd as an SVP. Todd appeals.

                                                       ANALYSIS


         Todd argues that the trial court erred in finding that he had committed a recent overt act.

We disagree.


                                               1. STANDARD OF REVIEW


         Criminal standards apply to our review of a trial court' s SVP determination. In re Det. of

Thorell,     149 Wn.2d 724,            744,   72   P. 3d   708 ( 2003),   cert.   denied, 541     U. S.   990 ( 2004).


Accordingly, we review challenges to the trial court' s findings of fact and conclusions of law by

determining ( 1) whether substantial evidence supports the challenged findings, and ( 2) whether

those findings in turn          support   the trial   court' s conclusions.   State v. Madarash, 116 Wn. App.

500, 509, 66 P. 3d 682 ( 2003) (           citing State v. Broadaway, 133 Wn.2d 118, 131, 942 P. 2d 363

 1997)). "    Substantial evidence is evidence sufficient to persuade a fair -
                                                                             minded, rational person


of   the truth   of   the   finding." Madarash, 116 Wn. App. at 509 ( citing State v. Mendez, 137 Wn.2d

208, 214, 970 P. 2d 722 ( 1999),           abrogated on other grounds by Brendlin v. California, 511 U. S.

249, 127 S. Ct. 2400, 168 L. Ed. 2d 132 ( 2007)).                  We consider the evidence in the light most




                                                              12
No. 43153 -0 -II



favorable to the State       and   treat   unchallenged   findings   of   fact   as verities on appeal.   Madarash,


116 Wn.   App.   at   509.   If the record contains conflicting testimony, we will not disturb the trier of

fact' s credibility and weight determinations. Madarash, 116 Wn. App. at 509.

                                                 II. SVP DEFINITIONS


        To   commit     Todd    under      RCW 71. 09. 060( 1),   the State had to prove beyond a reasonable


doubt that he    was an      SVP.    RCW 71. 09. 020( 18) defines         an   SVP    as "   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 [ that] makes the person likely to engage in predatory acts of

sexual violence if not confined in a secure facility."

         Likely to engage in predatory acts of sexual violence if not confined in a secure
        facility," means that the person more probably than not will engage in such acts if
        released unconditionally from detention on the sexually violent predator petition.
        Such likelihood must be evidenced by a recent overt act if the person is not totally
        confined at the time the petition is filed under RCW 71. 09. 030.

RCW 71. 09. 020( 7) (    emphasis added).         And   a "`[ r] ecent overt act "'




        means 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 the
        person engaging in the act or behaviors.

RCW 71. 09. 020( 12) (       emphasis added).



                              III. SUFFICIENT EVIDENCE OF RECENT OVERT ACT


        Todd does not dispute that the evidence established the requisite prior conviction. or that


he suffers from a mental abnormality or personality disorder for SVP civil commitment purposes

under   RCW 71. 09. 020( 18)        and    RCW 71. 09. 060( 1).      He argues only that there was insufficient




                                                            13
No. 43153 -0 -II



evidence to establish the statutorily required recent overt act10 and that In re Det. ofAston, 161

Wn.   App. 824,    251 P. 3d 917 ( 2011),       review   denied, 173 Wn.2d 1031 ( 2012),      and In re Det. of

Broten, 130 Wn.      App.   326, 122 P. 3d 942 ( 2005),       review   denied, 158 Wn.2d 1010 ( 2006), do not


support the trial court' s recent overt act finding here. We disagree.

          The evidence here clearly supports the trial court' s finding that Todd committed a recent

overt act; and neither Aston nor Broten require that an offender have contact with children or


utter a direct threat before the State can establish a recent overt act or reasonable apprehension of

harm;   therefore,   Todd' s   argument    fails.   As     noted above, "'[   r] ecent over act' means 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" Todd' s


history   and mental condition.      RCW 71. 09. 020( 12).         Because there was no- evidence that Todd


made any threats or caused any harm of a sexually violent nature, we address only whether the

State proved that he had engaged in acts that created a reasonable apprehension of harm given


his history and mental condition.

          Engaging in high risk behavior that is part -of -
                                                          the individual' s offense cycle can be

sufficient to establish a recent overt act, even if there is no actual contact with any potential

victim.    See Broten, 130 Wn.      App.   at   335 -36.    Here, there was evidence that Todd ( 1) was still




   RCW 71. 09. 060( 1).




                                                            14
No. 43153 -0 -II


                                                                            s.; (
sexually      aroused    by   children, at   least to   some                         2) was actively seeking out pornography

depicting      individuals      who     appeared    to       be    children         engaging in       sexual   acts;    and (   3)   most




importantly,         was   engaging in behaviors that he himself had identified                                  as    risky,   such    as




frequenting public restrooms to seek sexual gratification, frequenting video stores for sexual

purposes,          engaging in    anonymous       sex,       fantasizing            about   children   in   sexual     situations,     and




sometimes masturbating to those fantasies. Todd himself had identified much of this behavior as

part of      his   offense cycle.     And Chapman, Shaver, and Dr. Judd all testified that they believed

Todd' s behavior suggested that he was at a risk to reoffend.


             Todd also admitted that ( 1) in an effort to escape being violated and incarcerated, he had

sometimes          failed to disclose the details       of   his behavior; ( 2)         he was currently under a great deal of

stress   having      recently lost his job;     and (   3) his      sexual attraction          to   minors was   increasing. Many

of these factors were items he had self -
                                        identified as increasing his risk of reoffense and as part of

his offense cycle.


             We hold that this        evidence     was       sufficient     to       support    the trial   court' s   finding (     given



Todd'    s    history    and    mental    condition)-        that Todd' s continuing to engage in behaviors he

recognized as having led to his past acts of sexual violence, despite knowing that these behaviors

also violated his supervision conditions, was an overt act that created a reasonable apprehension


that he       would     cause    harm    of a   sexually          violent   nature.         Although Todd now has a better


understanding of his sexual identity, in the past he has turned to children when his attempts to

11
  Although we consider Todd' s continuing and apparently increasing arousal to children, we do
not mean to imply that such arousal itself is an overt act. Instead, we consider this factor because
it is relevant to Todd' s offense cycle, which, in turn, is relevant to whether a reasonable person
knowing Todd' s history and mental condition would consider that his repeatedly placing himself
in situations he had identified as risky amounted to a recent overt act.



                                                                     15
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find   a   consenting      adult with whom          to       engage     in   sexual relations were         thwarted.   His willingness


to engage in acts prohibited under his supervision conditions, which he had also self -
                                                                                      identified as


parts of his offense cycle, combined with his continued and increasing sexual attraction to

children, support the trial court' s overt act finding.

           Todd argues that unlike in Aston, he never made any type of threat to engage in predatory
                      12                                                               13
acts of violence.           He   also argues       that      unlike     in Broten,          he did not date anyone who put him in



12
     In Aston, Division One of our court held that the State had presented sufficient evidence of a
recent overt     act when         it   established       that the       respondent          had told his CCOs that ( 1) he would
reoffend     given    the opportunity; (           2) he had written about and masturbated to deviant sexual
fantasies     about children; (         3) he had        purchased a            book    with "   a sexual theme of an adult male

having mind control over a minor, naked female; and ( 4) he had masturbated to fantasies about
child actors as      he    watched children' s movies.           App. at 830 -33. In addition, a
                                                                             Aston, 161 Wn.
psychologist testified that Aston suffered from pedophilia and that writing fantasies was part of
his offense cycle:
            The psychologist] summarized his opinion as follows:
                                  T] raditionally, it appears that there' s been a three -step
                   process        for Mr. Aston:    The first being sexually deviant fantasies,
                     and     then       targeting            individuals         in    the     community,         actual

                     individuals,        and       then           offending.          And     certainly,      from   the
                     standpoint that he was in treatment, he was under supervision, he
                     was     told      not    to    be       writing         these    kinds    of   fantasies,     these
                     pornographic          involving children, he had met the —if you
                                          fantasies
                     will,   the first step.
                                        I mean, he wasn' t able to go online to actually
                     pull down the pornography as he had before, but he was generating
                     his own.
                                 Second is, we have at least two reports of him visually
                     targeting individuals in                     the community, girls that were in his
                     preferred         victim      range,          which is 4 to 9 years of age, and

                     experiencing            arousal         to    that,     which     he     reported     on    various
                     interviews.   So from my standpoint, it strikes me that he was
                     having difficulty controlling his sexual urges at this point in time.
                     And that the next logical step, based upon what we know of his
                     prior history,  is that he would have offended. [         Report of
                     Proceedings ( Oct. 5, 2009) at 647 -48.]
                      The        psychologist]           explained            that    Aston' s      written     fantasies   were

            concerning because he             wasn'      t   just    a passive recipient of          them.      He was actively



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direct contact with a minor or make weekly visits to parks to masturbate to visions of his

intended future       victims.       Instead,      Todd asserts that he sought out consensual sex with


homosexual       men and      that he   never " act[ ed]"           on his arousal or what he saw by engaging in

contact with      children,   despite that ( 1)      his movements around the city may have taken him to



          generating them      and    spending      a   lot   of effort    writing them down.        He concluded

       that, based on these acts, Aston is ` likely to engage in predatory acts of sexual
       violence if not confined to a secure facility.'
Aston, 161 Wn. App. at 833 -834 ( some alterations in original).
          Division One held that ( 1)              Aston' s comment that he would reoffend was sufficient
evidence of a "     threat "; and ( 2) there was sufficient evidence that Aston had committed an " act,"

noting the fantasies Aston had written combined with his comment that he would reoffend if
given   the opportunity. Aston, 161           Wn.    App.      at   834 -35.   The court commented that this case was
similar   to Broten, in     which    Broten'   s   behavior         was considered part of      his "`   offense cycle,'   or a


 buildup ... in anticipation of [re] offending. "' Aston, 161 Wn. App. at 835 ( quoting Broten, 130
Wn.   App. at 333). Ultimately, the court held that the threat, the act, and the psychologist' s
testimony about Aston' s writing fantasies as part of his " offense cycle" were sufficient to support
the SVP finding.    Aston, 161 Wn. App. at 835 -36. Analogizing to our decision in Broten,
Division One held that the evidence was sufficient, stating,
          In   addition   to the   acts and   threat    described        above, [   the psychologist] testified that

          Aston suffers from pedophilia and that writing fantasies is part of his ` offense
                This was sufficient evidence for the jury to find that Aston' s behavior
          cycle.'

       created a reasonable apprehension of sexually violent harm in the mind of an
       objective person who knows of his history and mental condition.
Aston, 161 Wn. App. at 835 -36.

13 In Broten, we held that ` Broten' s act of being in a park at a children' s playground without a
chaperone was sufficient evidence that he committed a recent overt act supporting the jury' s
finding that he is [ an SVP]." Broten, 130 Wn. App. at 329. The psychologist testified that
Broten' s presence in the park,. mental history, numerous release violations, and pattern of
deceptiveness, constituted a recent overt act because Broten " was actively engaging in ` deviant
arousal that he [ was] not intervening on' and he was ` now placing himself in high risk situations
where minors would reasonably be expected to congregate. "'       Broten, 130 Wn. App. at 332 -33.
We held that Broten' s being in the park without a chaperone and without a legitimate reason for
being there, " taken together with Broten' s mental history, numerous release violations,
admission of fantasizing about molesting and raping young girls, and pattern of placing himself
in high -
        risk situations in anticipation of causing sexually violent harm, constituted a recent overt
act." Broten, 130 Wn. App. at 336.




                                                                    17
No. 43153 -0 -II


locations   where minors might       be, (    2) he might have inadvertently been aroused by minors at

times, and ( 3) he may have " viewed some gay- oriented website with what appeared to be young

teens performing     sex acts."    Br.   of   Appellant   at   15.   Aston and Broten do not support Todd' s


argument.




         To prove an overt act in Broten and Aston, neither we nor Division One required the


offender to have made any overt threats or to have physically placed himself in the proximity of

children.      Rather,   these cases merely considered such threats and actions as factors in

determining whether there was a reasonable apprehension that the offender would cause harm of

a   sexually   violent nature.    As stated above, we hold that Todd' s behaviors here, particularly

when he had identified for himself these behaviors as part of his risk cycle, were clearly

sufficient to support the trial court' s finding of a recent overt act, which in turn supported its

finding that Todd is an SVP.

         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.



                                                                      i

                                                                      J.
We concur:




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