                                                                                                              FILED
                                                                                                      COURT Of APPEALS
                                                                                                           DIVISION 11
                                                                                                     2015 JAN 27 AM 8: 49




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                 DIVISION II

In re Detention of                                                                 No. 45000 -3 - II


        JOHN CHARLES ANDERSON,
                                                                          UNPUBLISHED OPINION
                                     Appellant.




       SUTTON, J. —      After approximately 13 years, 2 trials, and 2 appeals, the trial court ordered

John Charles Anderson committed to the Special Commitment Center at McNeil Island as a

sexually violent predator. Anderson appeals his commitment, arguing that ( 1) the trial court lacked
                                                                                           1; (
subject matter    jurisdiction to    commit     him   under   RCW 71. 09. 030( 1)(    e)          2) his sexual contacts


with mental patients during his voluntary commitment do not qualify as a " recent overt act" as a




1 RCW 71.09. 030( 1) states:
       A petition may be filed alleging that a person is a sexually violent predator and
                  sufficient   facts to   support such allegation when      it   appears   that: ( a) A person
       stating
       who at any time previously has been convicted of a sexually violent offense is about
       to be      released   from total    confinement; (     b) a person found to have committed a
       sexually violent offense as a juvenile is about to be released from total confinement;
        c) a person who has been charged with a sexually violent offense and who has been
       determined to be incompetent to stand trial is about to be released, or has been
       released, pursuant        to [ former]   RCW 10. 77. 086( 4) [( 2012)]; ( d) a person who has
       been found not guilty by reason of insanity of a sexually violent offense is about to
       be   released,   or has been       released, pursuant    to RCW [ ] 10. 77. 020( 3), , 10. 77. 110( 1)

              or 10. 77. 150; or ( e) a person who at any time previously has been convicted
       or ( 3),

       of a sexually violent offense and has since been released from total confinement
        and   has   committed a recent overt act.
No. 45000 -3 - II




matter of law; and ( 3) there is insufficient evidence to support the jury' s verdict finding that he is

a sexually violent predator. We affirm.

                                                   FACTS


           Anderson' s case began 26 years ago when Anderson, then 17 years old, anally raped a two -

and- a- half year
             -    -old   boy. In May 1988, Anderson pleaded guilty to first degree rape of a child.

The juvenile court imposed a manifest injustice sentence and sentenced Anderson to 100 weeks

confinement at      the Maple Lane School.      While at Maple Lane, Anderson exposed himself to a


female staff member at the school. Anderson was convicted of indecent exposure and sentenced

to 45     days in jail. After serving his   sentence,   Anderson   returned   to Maple Lane.     At this point,


Anderson began expressing sadistic and homicidal ideations including sexually explicit, violent

fantasies about the woman to whom he exposed himself.2

            In 1990, after Anderson was released from Maple Lane, he voluntarily committed himself

to Western State Hospital ( WSH).       Anderson stayed at WSH as a voluntary patient for 10 years.

In   re   Det. ofAnderson, 166 Wn.2d 543, 547, 211 P. 3d 994 ( 2009) ( Anderson II).            During his time

at   WSH, Anderson       earned grounds privileges and authorized       leave   with   his   mother.   Anderson


also engaged in sexual contacts with at least four other male patients at WSH. Three of the male

patients suffered from developmental disabilities. The fourth patient suffered from severe mental

illness.     Although Anderson was repeatedly counseled to stop engaging in sexual contacts with

other patients, he did not.




2 Anderson' s sexual history also includes a disturbing litany of sexually violent and deviant
behavior prior to Anderson' s incarceration at Maple Lane.


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No. 45000 -3 - II




          When the State was notified that Anderson was going to leave WSH, it filed a petition in

2000 to have Anderson committed at the Special Commitment Center ( SCC) as a sexually violent

predator. Anderson II, 166 Wn.2d at 547. The State conceded that Anderson had not been in total


confinement while at WSH; therefore, it had to prove a recent overt act.3 Anderson II, 166 Wn.2d

at 549. The State alleged that Anderson' s relationships while at WSH were recent overt acts that


proved Anderson' s current dangerousness. Anderson II, 166 Wn.2d at 549 -50. In 2004, four years


after the State filed its petition, Anderson' s case proceeded to a bench trial. In re Det. ofAnderson,

134 Wn.     App.   309, 315, 139 P. 3d 396 ( 2006) ( Anderson I),    aff'd, 166 Wn.2d 543, 211 P. 3d 994

 2009).    The trial court entered an order committing Anderson to the SCC as a sexually violent

predator. Anderson II, 166 Wn.2d at 548. Anderson has been confined in the SCC since the State


filed its original petition to commit him as a sexually violent predator. Anderson II, 166 Wn.2d at

547 -48.


          Anderson appealed the 2004 order committing him to the SCC as a sexually violent

predator. Anderson I. In that appeal, Anderson argued that ( 1) the trial court erred by denying his

motion to appoint another expert to testify at his trial, and ( 2) that his relationships at WSH could

not be considered recent overt acts because they were consensual relationships with adult men.

Anderson I, 134 Wn.       App.   at   312, 323.   In 2006, we reversed the trial court' s order committing


Anderson because the trial court abused its discretion by failing to appoint a new expert to testify

for Anderson at his trial; we remanded for a new trial. Anderson I, 134 Wn. App. at 321 -22. And,



3
 A recent overt act is " any act, threat, or combination thereof that has either caused harm of a
sexually violent nature or creates a reasonable apprehension of such harm in the mind of an
objective person who knows of the history and mental condition of the person engaging in the act
or   behaviors."    RCW 71. 09. 020( 12).



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No. 45000 -3 -II



we determined that whether Anderson' s relationships were recent overt acts was an issue of fact


that the State bears the burden of proving to the jury. Anderson I, 134 Wn. App. at 322 -24.

          Both parties appealed our decision to the Washington State Supreme Court. Anderson II,


166 Wn.2d         at   546.    The Supreme Court affirmed our decision. Anderson II, 166 Wn.2d at 552.


The court held that Anderson' s sexual contacts with mental patients could be considered recent

overt    acts.     Anderson II, 166 Wn.2d             at   550.   However, our Supreme Court also noted that


  w]hether or not Anderson' s conduct amounted to a recent overt act, as with the other elements


of   the State'   s case, [ would]    have to be     proved at    that   new   trial." Anderson II, 166 Wn.2d at 552.



          Prior to his second commitment trial in April 2013, Anderson moved to dismiss the State' s

petition.     Anderson argued that the trial court lacked subject matter jurisdiction to commit him

under    RCW 71. 09. 030( 1)(       e).   The trial court denied Anderson' s motion to dismiss and the State' s


petition to commit Anderson as a sexually violent predator proceeded to a jury trial.

          Dr. Larry Arnholt, Anderson' s treating psychologist at WSH from 1994 -2000, testified at

trial.   He testified that, although sexual relationships were not explicitly prohibited, they were

discouraged.           Throughout Anderson' s treatment at WSH, Anderson was repeatedly counseled

about his relationships with other patients. Arnholt stated that " there were many occasions when

it was pointed out to Mr. Anderson that the developmentally disabled individuals are in many ways

child -like      in their     emotional and    intellectual development,          and   there   were   some parallels."      10


Report of Proceedings ( RP) at 817. It was made clear to Anderson that he should not be engaging

in those    relationships        because it   was similar    to   what   he had done     with children.      And, Anderson


knew that his          relationships with     the   men at   WSH      were "   wrong," " hurtful,"     and " selfish ".   10 RP


at 840.




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No. 45000 -3 - II



           The State'     s   expert,   Dr.   Amy Phenix, testified regarding Anderson' s diagnoses and

likelihood       of   reoffending.      Phenix diagnosed Anderson with pedophilia, both male and female


non -exclusive type, and sexual sadism. According to Phenix, neither pedophilia nor sexual sadism

can   be   cured.      They   are permanent,    life -long   conditions   that   can   only be   managed.    Phenix also


diagnosed Anderson with a personality disorder with antisocial, borderline, and narcissistic traits.

Antisocial personality traits include violating the rights of others, committing crimes, lying, acting

impulsively, and being aggressive, irritable, and irresponsible. People with borderline personality

traits have extreme difficulties with interpersonal relationships, have an unstable mood and self -

image,      and see     themselves      as victims rather    than   taking responsibility for      their   actions.   And,


narcissistic personality traits include being self -focused and selfish with a grandiose sense of self.

Narcissistic personalities also lack empathy which enables them to be exploitive of others.

           Phenix opined that Anderson' s relationships during his time at WSH were recent overt acts

because they demonstrated               a continued pattern of      taking   advantage of vulnerable victims.          She


explained that the developmentally delayed and mentally ill men that Anderson became involved

with were child -like in the sense that they were simplistic, immature, and easy to control. Phenix

expressed particular concern because Anderson was counseled about the inappropriate nature of

the relationships and he understood the parallels between children and vulnerable victims;


however, Anderson chose to continue engaging in the sexual behavior. Ultimately, Phenix opined

that, to a reasonable degree of psychological certainty, Anderson had committed recent overt acts

by engaging in these relationships during his commitment at WSH.

            Phenix testified that Anderson' s pedophilia, sexual sadism, and personality disorders all

affect     his   volitional   capacity.    Phenix stated that she believed Anderson would continue to have



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No. 45000 -3 -II




 serious   difficulty    with    his   volition once    he is   released."   8 RP   at   557. And, although treatment


could allow a person to improve their volition, she did not believe that applied to Anderson. Phenix


testified that Anderson had not made significant treatment gains while at WSH and he had not


meaningfully participated in treatment since being confined at the SCC for 13 years. She expressed

particular concerns about Anderson' s inability to identify high risk factors because he admitted he

was "' out of practice.'"        8 RP at 622. Phenix opined that Anderson had a high risk of reoffending.

         The jury found that the State proved beyond a reasonable doubt that Anderson was a

sexually   violent      predator.       The trial   court   entered   an   order   committing Anderson.        Anderson


appeals.



                                                         ANALYSIS


         Anderson argues that ( 1) the trial court lacked subject matter jurisdiction to commit him

under   RCW 71. 09. 030( 1)(         e); (   2) his sexual contacts with mental patients were consensual and too


remote in time to qualify as a " recent overt act" as a matter of law; and ( 3) there is insufficient

evidence to support the jury' s verdict finding that he is a sexually violent predator. We disagree.

                                             A. SUBJECT MATTER JURISDICTION


         First, Anderson argues that the trial court lacked subject matter jurisdiction because RCW

71. 09. 030( 1)(   e)   does   not   apply to him.      He frames this argument as an issue of subject matter


jurisdiction, which can be raised at any time, presumably to account for the fact that he declined

to raise the issue during his first trial, during his first appeal to our court, and during his appeal to

the Supreme Court.             However, Anderson is mistaken;. whether RCW 71. 09. 030( 1)( e) applies to

him is   not an    issue   of subject matter       jurisdiction. Because Anderson has failed to        offer   any   other
No. 45000 -3 - II




reason why the law of the case doctrine does not bar him from raising this issue after his failure to

raise it in either of his prior appeals, we consider only his argument of subject matter jurisdiction.

               Subject matter jurisdiction refers to a court' s ability to entertain a type of case, not to its

authority to       enter an order     in   a particular case."   In re Marriage ofBuecking, 179 Wn.2d 438, 448,

316 P. 3d 999 ( 2013) (         emphasis added), cert.      denied, 135 S. Ct. 171 ( 2014). The Washington State


Constitution grants superior courts subject matter jurisdiction over all types of cases unless


jurisdiction is        vested   exclusively in     another court.     WASH. CONST.    art.   IV, § 6. "`   If the type of


controversy is within the subject matter jurisdiction, then all other defects or errors go to something

other      than   subject matter      jurisdiction. "'   In re Marriage ofMcDermott, 175 Wn. App. 467, 482,

307 P. 3d 717 ( 2013) (          quoting Cole v. Harveyland, LLC, 163 Wn. App. 199, 209, 258 P. 3d 70

 2011)), review denied, 179 Wn.2d 1004 ( 2013).


               Here, the type of controversy before our court was the State' s petition to commit Anderson

under RCW 71. 09. 030( 1)( e) as a sexually violent predator. Under the Washington Constitution' s

broad grant of jurisdiction to the superior courts in article IV, section 6, the trial court had subject

matter jurisdiction over the State' s petition to commit Anderson as a sexually violent. predator.

Therefore, any error under RCW 71. 09. 030( 1)( e) must go to something other than subject matter

jurisdiction. McDermott, 175 Wn. App. at 482 ( quoting Cole, 163 Wn. App. at 209).

               Anderson has failed to define any error regarding RCW 71. 09. 030( 1)( e) as anything other

than       a   lack   of subject     matter   jurisdiction.      And, more importantly, he has offered no other

justification for asking us, or the trial court, to consider this issue after more than 13 years, 2 trials,

and    2   appeals.     State   v.   Elmore, 154 Wn.     App.    885, 896, 228 P. 3d 760 ( 2010) ( " Under the law of


the case doctrine, we may refuse to address issues that were raised or could have been raised in a


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No. 45000 -3 -II




prior appeal ") ( internal quotation marks omitted).                          Accordingly, we do not address the issue any

further.


                                        B. RECENT OVERT ACT AS A MATTER OF LAW


           Anderson next argues that the State did not prove he committed a recent overt act4 because:


 1) his sexual contacts at WSH were consensual and thus cannot form the basis for a recent overt


act, and ( 2) his sexual contacts at WSH from 1990 -2000, 13 years ago from the date of trial in

2013,   are   too   remote    in time to be           considered " recent."       Br. of Appellant at 21.


                                                1.    Sexual Contacts as Recent Overt Acts


           Whether      an   act   is   a " recent overt act"       is   a mixed question    of law   and   fact.   In re Det. of

Brown, 154 Wn.           App.      116, 121, 225 P. 3d 1028 ( 2010) ( citing             In re Det. ofMarshall, 156 Wn.2d

150, 158, 125 P. 3d 111 ( 2005)).                    De novo review would normally apply. Anderson II, 166 Wn.2d

at   549. But, "[ w]here there has been a determination of the applicable law in a prior appeal, the


law   of   the   case   doctrine ordinarily            precludes re[- ]      deciding the same legal issues in a subsequent

appeal."      Folsom v. County ofSpokane, 111 Wn.2d 256, 263 -64, 759 P. 2d 1196 ( 1988).
           Anderson argues that, as a matter of law, consensual sexual relationships cannot be

considered        recent     overt      acts.   Our Supreme Court held that Anderson' s sexual contacts with


vulnerable WSH patients, whether consensual or not, could constitute a " recent overt act" as a


matter of        law. Anderson II, 166 Wn.2d                 at   550.       Under the law of the case doctrine we will not




4 A "recent overt act" is " any act, threat, or combination thereof that has either caused harm of a
sexually violent nature or creates a reasonable apprehension of such harm in the mind of an
objective person who knows of the history and mental condition of the person engaging in the act
or behaviors." RCW 71. 09. 020( 12). The trial court' s instructions to the jury at trial included this

definition which was not challenged on appeal.




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No. 45000 -3 - II




revisit whether Anderson' s sexual contacts constitute a recent overt act as a matter of law. To the


extent Anderson argues that insufficient evidence supports a factual finding that his sexual contacts

meet the definition of recent overt act, his argument is addressed below.


                                   2. The Recency Requirement of an Overt Act

          Anderson argues by the time of trial in May 2013 that his 1990 -2000 sexual contacts were

too remote in time to have any bearing on his current dangerousness since it had been 13 years

since   his   commitment as a        sexually     violent predator      in 2000.'   We reject Anderson' s argument.


His     argument       ignores the      unusual    facts   of   this   case.   Anderson has been in confinement


continuously since 1988 and not living in the outside community; first confined at Maple Lane

from 1988 -1990, then at WSH voluntarily from 1990 -2000, and then confined to SCC from

February 2000 continuously up to today.

          Washington courts recognize the difficulty, if not impossibility, of requiring the State to

prove a " recent overt act" when a person is confined and has not lived in or had access to the

outside    community.         When an individual is incarcerated, the State is not required to produce


evidence of a " recent overt act"          because "' for incarcerated individuals, a requirement of a recent


overt act under        the Statute   would create a standard which would             be impossible to   meet. "'   In re


Det.    of Albrecht,     147 Wn.2d 1, 8, 51 P. 3d 73 ( 2002) (           quoting In re Pers. Restraint of Young, 122

Wn.2d 1, 41, 857 P. 2d 989 ( 1993)). " Due process ` does not require that the absurd be done before




5 In Anderson II, our Supreme Court held that Anderson' s acts were recent based on the fact that
the most recent act         occurred     two   months      before the State filed the    petition.   Anderson II, 166
Wn.2d      at   550.     The Supreme Court' s opinion does not, however, resolve the specific issue
Anderson        raises      whether the intervening 13 years he was confined at the SCC prevent
                         before   us—

the acts from being considered recent.



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No. 45000 -3 - II



a   compelling   state   interest   can   be   vindicated.'"   Albrecht, 147 Wn.2d at 8 ( internal quotation marks


omitted) (   quoting Young, 122 Wn.2d at 41).

         Under this well- settled principle of law, the period of time from 1990 -2000, is the relevant


period to determine whether Anderson' s sexual contacts at WSH are recent overt acts and the jury

was instructed and found that these acts were a " recent overt act."


                                           C.    SUFFICIENCY OF THE EVIDENCE


         Anderson claims insufficient evidence supports his sexually violent predator commitment.

To prove that Anderson is a sexually violent predator, the State must prove that ( 1) he has a mental

abnormality      or   personality disorder, ( 2)      his mental abnormality or personality disorder makes him

likely to engage in predatory acts .of sexual violence if not confined to a secure facility, and ( 3)

that Anderson committed             a recent overt act.    RCW 71. 09. 020( 18), . 060( 1).    The criminal standard


of review applies to a sufficiency of the evidence challenge under RCW 71. 09. 030. In re Det. of

Thorell, 149 Wn.2d 724, 744, 72 P. 3d 708 ( 2003). "[                 T] he evidence is sufficient if, when viewed


in the light most favorable to the State, a rational trier of fact could have found the essential

elements of      the crime beyond          a reasonable    doubt."    Thorell, 149 Wn.2d      at   744.   All reasonable


inferences must be drawn in favor of the State and interpreted most strongly against Anderson. In

re   Det. of Audett, 158 Wn.2d 712, 727, 147 P. 3d 982 ( 2006).                     We do not second guess the


credibility determinations of the fact finder. In re Det. ofHalgren, 156 Wn.2d 795, 811, 132 P. 3d

714 ( 2006).      We defer to the trier of fact regarding conflicting testimony and the persuasiveness

of the evidence. In re Det. ofBroten, 130 Wn. App. 326, 335, 122 P. 3d 942 ( 2005).

         Because the sufficiency of the evidence test requires that we look at the evidence in the

light most favorable to the State, we do not consider whether there is evidence in the record



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No. 45000 -3 - II




supporting Anderson' s assertions that he does not meet the definition of a sexually violent

predator.      Anderson' s argument requires us to reweigh his evidence against the State' s evidence;


and, we do not reweigh evidence on appeal. Therefore, our review is limited to looking at whether

the State' s evidence is sufficient to support the jury' s findings on the specific elements Anderson

challenges. Here, Anderson does not challenge the sufficiency of the evidence proving that he has

a   mental     abnormality         or    personality disorder —pedophilia, sexual sadism, and a personality


disorder      with   borderline,     antisocial, and narcissistic          traits.   Instead he argues there is insufficient


evidence to prove that ( 1) his mental abnormalities and personality disorder cause a lack of control

over his behavior, and ( 2) he committed a recent overt act.


                                                        1.   Lack of Control


             Anderson argues that the State failed to prove that his mental abnormalities and personality

disorder cause a lack of control over his sexually violent behavior. Although " lack of control" is

not a separate element required for commitment of a sexually violent predator, the jury' s findings

    must support         the   conclusion   that the   person   has   serious   difficulty   controlling behavior."   Thorell,


149 Wn.2d           at   742.     A diagnosis of a mental abnormality or personality disorder alone is not

sufficient     to   support a      finding   of a serious    lack   of control.      Thorell, 149 Wn.2d at 761 -62. But, if


the finder of fact finds that there is a link between the mental abnormality or personality disorder

and the likelihood of future acts of predatory acts of sexual violence, the fact finder has necessarily

made a finding that the offender seriously lacks control of his or her sexually violent behavior.

 Thorell, 149 Wn.2d at 742 -43. Anderson does not dispute that he has been diagnosed with a mental

abnormality or personality disorder, nor does he dispute that he is likely to engage in predatory

 acts   of   sexual violence        if   not confined.       Therefore, the question is whether the State presented




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No. 45000 -3 -II




evidence proving that there is a link between Anderson' s mental abnormalities and personality

disorders and the likelihood that he will engage in predatory acts of sexual violence if not confined

to a secure facility.

        Here, Dr. Phenix testified that Anderson suffered from pedophilia and sexual sadism which


were incurable, life -long conditions. And, that without meaningful and continued participation in

treatment, Anderson would not be able to control the urges resulting from these mental

abnormalities.     She also testified that the characteristics of his personality disorder resulted in a

disregard for rules, disrespect for the rights of others, and selfish behavior that focused on meeting

his own needs and desires. And, Phenix testified that she did not believe that Anderson had learned

how to control his behavior because he had not meaningfully participated in treatment while

confined at   the SCC,   did   not meet all   his treatment   goals at   WSH,   and   had   stated   that he   was "' out




of practice "'   in recognizing his triggers for reoffending. 8 RP at 622.

        Phenix explicitly opined that Anderson' s mental abnormalities and personality disorder

affected his volitional control, and, she did not believe that Anderson would be able to control his

behavior in the community. Based on Phenix' s testimony, the State presented sufficient evidence

to prove that there was a link between Anderson' s mental abnormalities and the likelihood that he

would engage in predatory acts of sexual violence if not confined to a secure facility. Therefore,

there was necessarily sufficient evidence to .prove that Anderson' s mental abnormalities and

personality disorders resulted in a lack of control over his behavior.




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No. 45000 -3 - II



                                            2. Recent Overt Acts


         Anderson next argues that the State failed to present sufficient evidence that his sexual

contacts with patients at WSH were recent overt acts.


         Dr. Phenix testified that Anderson' s sexual contacts with the four male patients at WSH

shared characteristics    that were   consistent with   his   prior sexual offenses.   Like child victims, the


male patients Anderson had sex with at WSH were vulnerable and presented Anderson with the


opportunity to take     advantage of    them.   Dr. Phenix specifically testified that Anderson' s sexual

contacts with other male patients at WSH demonstrated that he was currently dangerous. The State

also presented evidence that Anderson was repeatedly counseled not to enter into or continue these

sexual contacts because they indicated continued manifestations of his sexual pathology and

interfered   with   his treatment.    And, at trial, Anderson testified that he engaged in these sexual


contacts because he was a " horny individual" and because he " felt like it" even though he knew

these   acts were   wrong.   10 RP at 876. Ultimately, Phenix testified that, to .a reasonable degree of

medical certainty, Anderson' s relationships at WSH qualified as recent overt acts.

         The evidence, viewed in the light most favorable to the State, was sufficient to allow a jury

to find beyond a reasonable doubt that Anderson' s sexual contacts at WSH were " recent overt




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No. 45000 -3 -II




acts" that created a reasonable apprehension of sexually violent harm.

          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.




 We concur:




 We : swick, P.




Lee, J.




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