                                                                            FILED
                                                                         June 14, 2016
                                                                 In the Office of the Clerk of Court
                                                               WA State Court of Appeals, Division III




         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                            DIVISION THREE

In the Matter of the Detention of             )
                                              )        No. 32555-5-111
RONALD D. LOVE,                               )
                                              )
                                              )
                     Appellant.               )        UNPUBLISHED OPINION


       KORSMO, J. -Ronald Love appeals from a jury's determination that he remains a

sexually violent predator (SVP) despite his evidence to the contrary. We conclude that

there were no evidentiary errors of consequence and that the evidence supported the

jury's verdict. We thus affirm.

                                         FACTS

       Mr. Love was originally committed as a sexually violent predator in 2005.

Evidence adduced at that trial included a recitation of Mr. Love's history of sexually

violent assaults committed in California during the 1970s. In 1973, Mr. Love, then 16,

was convicted of attempting to rape a six-year-old. Two years later he sodomized a

juvenile male and attempted to rape a juvenile female. In 1978, he and some accomplices

attempted to kidnap a 16-year-old; that incident did not lead to a criminal prosecution.

Later that year, in separate incidents he raped two women on the same night. He pleaded
No. 32555-5-111
In re Love


guilty to one count of forcible rape for each of the two women. After release from

custody in California he moved to Pasco. In 1991, Mr. Love was convicted of attempting

to rape a 19-year-old boy.

       SVP proceedings were filed in 2005 as Mr. Love was nearing the end of his

Washington prison sentence. That matter proceeded to a bench trial. Among the

evidence considered at trial was the testimony of A.P., one of the 1978 rape victims. She

traveled to Pasco from Puerto Rico to describe Mr. Love's entry into her home and

ensuing sexual assault. After considering expert testimony and the testimony of some of

the victims, the court found that Mr. Love was a sexually violent predator and committed

him to the Special Offender Center.

       In 2013, Mr. Love brought a petition for an evidentiary hearing, asserting he no

longer met the requirements to be considered an SVP. Clerk's Papers (CP) at 805. To

support that petition he presented declarations from Dr. Robert Halon and Brad Mix, a
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Native American Healer, indicating that during his commitment, he had been an active         !


participant in Native American culture, rituals, and healing, that serve as equivalents to

treatment, and that through those programs he has gained control over his impulses and

eliminated his antisocial behaviors. He also submitted evidence of increasing health

problems. The court granted a new trial after determining Mr. Love presented probable

cause that he no longer met the definition of an SVP.




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No. 32555-5-III
In re Love


       In the ensuing trial, the State presented evidence from Dr. Amy Phenix concerning

Mr. Love's past crimes as well as her psychological assessment of him. She diagnosed

Mr. Love with alcohol dependence, rape paraphilia, and antisocial personality disorder.

She gave substantial information about all three of these disorders; her ultimate

conclusion was that they worked in combination to render him dangerous to the

community. She also applied several actuarial instruments to Mr. Love, including a

dynamic risk assessment, the Structured Risk Assessment-Forensic Version (SRA-FY),

and concluded he was more likely than not to commit future acts of sexual violence.

       In his defense, Mr. Love presented evidence from psychologists challenging the



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bases for Dr. Phenix's diagnoses and assessment that he was likely to reoffend, evidence

from Native leaders involved in religious and healing practices at the commitment center
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to the effect that he was no longer likely to engage in criminal activities, and medical

evidence that his current physical state made it unlikely he would engage in acts of
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violence. He also testified in his own defense and denied ever having committed any acts
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of sexual violence. He also asserted he had only pleaded guilty as part of plea deals to       I
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get reduced charges on non-sexual, violent crimes that he did commit. He also testified        !
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that A.P. had been a prostitute. 1
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       1
         A.P. testified in the 2005 trial that she had worked for the Superior Court and the
District Attorney in Modesto, California at the time of the attack.

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No. 32555-5-III
In re Love


       Apparently surprised by Mr. Love's testimony, the State offered the previous

testimony of A.P. to rebut it. The defense objected on the basis that the testimony was

cumulative to that of Dr. Phenix, who already had described the incident, and that the

State had made no effort to seek A.P.' s presence from Puerto Rico before offering the

transcript of her previous testimony. The State argued that A.P. lived in Puerto Rico and

was therefore unavailable because she was not amenable to a subpoena. The trial judge

admitted the testimony.

      The court instructed the jury that to commit Mr. Love as a sexually violent

predator, it needed to find that he had previously been found to be an SVP, he continued

to suffer from "a mental abnormality or personality disorder" that made it difficult to

control his sexually violent behavior, and that the "mental abnormality or personality

disorder" continues to make it more likely that he would reoffend. CP at 16. Defense

counsel did not object to instruction 5 and had proposed an instruction containing similar

language. CP at 64.

       The jury returned a verdict that Mr. Love remained an SVP. CP at 8. The court

entered an order committing Mr. Love to the Special Offender Center. CP at 7. Mr.

Love then timely appealed to this court.

                                       ANALYSIS

      This appeal raises multiple challenges that we address as three issues, but the only

two discussed in any detail involve Mr. Love's challenges to the sufficiency of the

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No. 32555-5-III
In re Love


evidence and use of the prior testimony of A.P. After briefly discussing general

principles governing review of SVP cases and Mr. Love's challenge to the SRA-FY

dynamic risk assessment tool, we then address the sufficiency of the evidence and A.P.'s

testimony.

       Appellate courts apply the criminal standard to sufficiency challenges made to

SVP civil commitments. In re Det. of Thorell, 149 Wn.2d 724, 744, 72 P.3d 708 (2003),

cert. denied, 541 U.S. 990 (2004). A commitment order is reviewed to see if, viewing the

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

that the State has proven each required element beyond a reasonable doubt. Id. A claim

of insufficiency admits the truth of the State's evidence, along with all reasonable

inferences that may be drawn from it. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d

1068 (1992).

       An SVP is someone "who has been convicted of or charged with a crime of sexual

violence and who suffers from a mental abnormality or personality disorder which makes

the person likely to engage in predatory acts of sexual violence if not confined in a secure

facility." RCW 71.09.020(18). A "mental abnormality" is "a congenital or acquired

condition affecting the emotional or volitional capacity which predisposes the person to

the commission of criminal sexual acts in a degree constituting such person a menace to

the health and safety of others." RCW 71.09.020(8). A mental abnormality, when

coupled with an individual's history of sexually predatory acts, supports the conclusion

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No. 32555-5-III
In re Love


that the person has serious difficulty controlling his or her behavior. Thorell, 149 Wn.2d

at 742.

          The one issue we summarily address is the challenge to Dr. Phenix's use of the

SRA-FV to support her opinion that Mr. Love continued to be an SVP. This court has

concluded that the test satisfies the standard of Frye v. United States, 54 App. D.C. 46,

293 F. 1013 (1923). See In re Det. of Ritter, 192 Wn. App. 493, _ P.3d _ (2016); In re

Det. of Pettis, 188 Wn. App. 198, 352 P.3d 841, review denied, 184 Wn.2d 1025 (2015).

We will not revisit those decisions.

          Sufficiency of the Evidence

          Mr. Love's primary remaining contention is a claim that the evidence is not

sufficient to support the jury's verdict given the instructions. His challenge combines a

traditional sufficiency of the evidence argument with a law of the case argument

predicated on his construction of the definition of the term "sexually violent predator." As

the Washington Supreme Court did nearly a quarter century earlier, we reject his reading

of the statutory language 2 and conclude that the evidence did support the jury's verdict. 3




          2
         Although cast as a jury instructional issue, his true challenge is to the
construction of the statute since the challenged aspect of the jury instruction merely
recites the statutory definition.
          3
        In light of our conclusion, we need not address the State's argument that Mr.
Love invited the alleged error or his rejoinder that counsel performed ineffectively by
proposing similar language. There was no instructional error.

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No. 32555-5-III
In re Love


       "Sexually violent predator" is defined as a person "who has been convicted of or

charged with a crime of sexual violence and who suffers from a mental abnormality or

personality disorder which makes the person likely to engage in predatory acts of sexual

violence if not confined in a secure facility." RCW 71.09.020(18). The elements

instruction provided to the jury largely tracked this definition. CP at 16. In particular,

the second element required the jury to find that Mr. Love "continues to suffer from a

mental abnormality or personality disorder." Id. (emphasis added). Mr. Love contends

that use of the word "or" renders the evidence insufficient to support the verdict because

Dr. Phenix testified it was the combination of Mr. Love's mental abnormalities and

personality disorders, rather than a single one of them, that established his future

dangerousness.

       This argument is largely semantic, but it turns on a not uncommon problem of

construing the meaning of the word "or." In common English usage, the word "or" can

be either exclusive or inclusive. Lake v. Woodcreek Homeowners Ass 'n, 169 Wn.2d 516,

528, 243 P.3d 1283 (2010). The meaning of the term typically is derived from the

context in which it is used. Id. Mr. Love argues that the instruction (and hence the

statute) apply an exclusive "or," but the Washington Supreme Court already has

construed this statutory language as meaning "and." In re Det. of Young, 122 Wn.2d 1,

58, 857 P.2d 989 (1993) superseded by statute on other grounds as stated in In re the

Det. of Thorell, 149 Wn.2d at 746. The terms "mental abnormality" and "personality

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No. 32555-5-III
In re Love


disorder" are both defined by statute, and nothing indicates that an individual might not

suffer from both. Young recognizes that both can work in conjunction to satisfy the

statutory definition. 4 Id. Consequently, evidence that the combination of Mr. Love's

personality disorders and his mental abnormalities made it likely that he would commit

future acts of sexual violence was properly considered by the jury.

       Thus viewed, the evidence was sufficient to support the jury's verdict. The

evidence established that Mr. Love had previously been found to be an SVP. There was

testimony from Dr. Phenix that he continues to suffer from mental abnormalities and

personality disorders. She also opined that the combination of Mr. Love's current

problems made it likely that he still will engage in acts of predatory sexual violence. The

jury was free to credit that testimony and therefore find that each of the statutory

elements was proven.

       The evidence supported the jury's verdict.




       4
         The Legislature intended that all dangerous sex offenders be incapacitated
       and treated. Frequently ... an individual will suffer from multiple mental
       abnormalities and personality disorders which make violent rape likely. It
       would thwart the legislative purpose if the Statute only allowed the
       commitment of those who suffer from one or the other, while prohibiting
       the commitment of more seriously afflicted sexually violent predators.

In re the Det. of Young, 122 Wn.2d at 58.


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No. 32555-5-III
In re Love


       Admission of Prior Testimony ofA.P.
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       Mr. Love also argues that the trial court committed error when it admitted the

transcript of A.P.'s testimony from the first trial. If error, it was harmless.

       Typically, rulings admitting or excluding evidence are reviewed for an abuse of
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discretion. In re Det. of Duncan, 167 Wn.2d 398, 402, 219 P.3d 666 (2009). Discretion            II
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is abused when it is exercised on untenable grounds or for untenable reasons. State ex
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rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). Error in the admission of

evidence is harmless if "within reasonable probabilities" it did not affect the outcome of
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the trial. State v. Zwicker, 105 Wn.2d 228, 243, 713 P.2d 1101 (1986). 5                         l
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       Former testimony is exempted from the reach of the hearsay rule if the witness is         t
unavailable and the opposing party previously had the opportunity to develop the                 tI
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testimony. ER 804(b)(l). A declarant is unavailable if she is absent from the                    i
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proceedings and the proponent was not able to procure her attendance. ER 804(a)(5). In           I
addition, a deposition is admissible if the witness resides out of the county more than 20       I
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miles from the site of the trial. CR 32(a)(3).
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       5 Even constitutional error, such as the omission of an element from a "to convict"
instruction, is harmless error if it is clear beyond a reasonable doubt that the error did not
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contribute to the verdict. Neder v. United States, 527 U.S. 1, 15, 119 S. Ct. 1827, 144 L.
Ed. 2d 35 (1999) (citing Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d
705 (1967)); State v. Thomas, 150 Wn.2d 821, 845, 83 P.3d 970 (2004).
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                                                 9
No. 32555-5-III
In re Love


       Given that A.P. lived in Puerto Rico and could not be subpoenaed, the State

contends she was unavailable. Additionally, the State contends any error was harmless

since (1) her deposition governing the same discussion of the facts of the 1978 case could

have been used, and (2) the substance of those facts were already before the jury from the

testimony of Dr. Phenix. We agree that A.P.'s substantive description of the event was

not critical to the outcome of this action.

       First, we note that while A.P. was outside the subpoena power of the court, the

rule still requires the State as proponent of the testimony to make a good faith effort to

secure the voluntary attendance of the witness. Rice v. Janovich, 109 Wn.2d 48, 57, 742

P.2d 1230 (1987). Given that A.P. did appear to testify at the 2005 SVP trial, there

certainly was the possibility that she would voluntarily appear if asked, even though the

mid-trial request would not have amounted to much advance notice.

       Nonetheless, any error was harmless for the reasons noted. The evidence could

have been admitted through the prior deposition, making the problem merely one of form

rather than substance. While A.P. 's version of the events was already before the jury

through Dr. Phenix, that evidence was admitted for the limited purpose of explaining Dr.

Phenix's evaluation of Mr. Love. ER 703. Here, the primary purpose of using A.P.'s
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testimony was to rebut Mr. Love's new version of the 1978 attack. The only element

seriously at issue in this trial was whether Mr. Love was currently dangerous or not in
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No. 32555-5-III
In re Love


light of his progress in treatment. The 1978 incident did not seriously impact the jury's

ultimate decision in this case.

       Accordingly, we conclude that the error was harmless since it did not realistically

impact the verdict. The judgment is affirmed.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR:




       Pennell, J.




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