COURT OF APPEALS
DiVISMIN I1
20111 AUG 12 Pt 12: 5
STh ATO
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
IN RE DETENTION OF No. 44137 -3 -II
MORGAN A. HEATH.
UNPUBLISHED OPINION
HUNT, J. — Morgan A. Heath appeals the trial court' s order for civil commitment as a
RCW1.
sexually violent predator ( SVP) under chapter 71. 09 He argues that the trial court ( 1)
abused its discretion in denying his motion for mistrial based on juror misconduct; and ( 2)
violated his right to a unanimous jury verdict ( a) in failing to instruct the jury that it must be
unanimous about the underlying reason for its finding him likely to reoffend and ( b) because the
State failed to offer sufficient evidence to prove that Heath suffered from a mental abnormality
or specific personality disorder that would make him likely to reoffend. We affirm.
FACTS
I. BACKGROUND
In 2003, Morgan A. Heath molested a two -year -old girl, the daughter of his father' s
girlfriend, four or five times over a few months; Heath was 14 years old at the time. Based on
these acts, Heath pled guilty to first degree rape of a child and was sentenced to Juvenile
1"
Sexually violent predator means 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 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).
No. 44137 -3 -II
Rehabilitation Administration ( JRA) for a period of 15 to 36 weeks. After completing his JRA
sentence, Heath was released on community supervision.
Heath violated the terms of his community supervision by committing theft and false
reporting in 2004. Between December" 2004 and August 2006, Heath was convicted for
assaulting his girlfriends; thereafter, Heath violated no- contact orders for these girlfriends. In
January 2007, Heath was charged with failure to register as a sex offender between November 26
and December 14, 2006; he pled guilty, was sentenced to jail for 45 days, and was put under the
supervision of a community corrections officer ( CCO), Nancy Jo Nelson, for 12 months. In July
2007, Heath was again arrested for failure to register as a sex offender and for various violations
of his community supervision conditions, including contact with a minor child. In April 2008,
Heath was arrested, and released, for third degree malicious mischief for beating in the windows
of his girlfriend' s car.
In July, while " released to the community," Heath took a job working at a carnival, which
violated his release condition not to be in the presence of minors; he was again arrested. 3
Verbatim Report of Proceedings ( VRP) at 249. When he was released from custody on August
9, Heath walked to a festival where he interacted with an eight -
year -old boy, put the boy on a
horse, and started leading the horse out of the park. Heath was again arrested. Shortly after
GPS2
Heath' s release from jail, Nelson put him on monitoring.
In June 2009, Heath was jailed for 61 days for living in an unauthorized location and for
going to a mall, where he could pick up young teenage girls, in violation of his community
2"
Global Positioning System" ( GPS). 2 VRP at 133.
2
No. 44137 -3 - II
supervision conditions. In November, Heath was again charged with failure to register and jailed
for about 90 days. He was released in February 2010 and again put on GPS monitoring.
Shortly after his release, Heath began violating his community supervision conditions
again. Nelson had told Heath he could not stay with his friend, Tammy Brown and her two
children, one 13 years old and the other 12 years old. But Heath stayed at Brown' s house
without informing Nelson; instead, when Nelson called Brown, she lied to Nelson about where
he was living. There, he had multiple contacts with multiple children, including a 17- year -old
girl, eight to ten other children at Brown' s apartment complex playground, a 10- year -
old
developmentally disabled girl, and three other minor children. While playing with children at the
playground, Heath gave them " piggyback rides "; made sexual innuendos to them; and, when a
dog started " humping" Heath' s leg, told the children to get down on their hands and knees to
mimic the dog' s behavior. 3 VRP at 253. When Nelson learned that Heath was staying with
Brown and her children, she arrested him for several community supervision violations.
Nelson then learned that also in February 2010, Heath had sexually assaulted two 13-
3
old girls,
year - JR and AC, one of whom had been staying at Brown' s house. Based on these
acts, Heath pled guilty to attempted communication with a minor for immoral purposes and
fourth degree assault with a special allegation of sexual motivation. He was sentenced to 214
days in JRA, to run concurrently with his previous sentence, followed by a two -year probation;
the court also issued a no contact order with JR or AC.
3
It is appropriate to provide some confidentiality in this case. Accordingly, we use initials to
identify the juveniles involved.
3
No. 44137 -3 - II
II. PROCEDURE
On August 30, 2010, while Heath was still incarcerated, the State filed a petition to
commit Heath as a sexually violent predator ( SVP) under RCW 71. 09 et seq. The case
proceeded to a jury trial.
A. Trial
1. CCO Nancy Jo Nelson' s testimony
Heath' s CCO, Nancy Jo Nelson, testified that she had supervised Heath from February
2007 until he went to the Special Commitment Center ( SCC) in 2010. Nelson described Heath' s
multiple violations of his conditions of release as previously set forth. Because Heath was again
incarcerated, she would continue supervising him on community custody after " he' s finally
released again." 2 VRP at 155.
2. Psychologist Dr. Amy Phenix' s testimony
Clinical psychologist Dr. Amy Phenix testified that on August 10, 2010, she had
conducted an initial evaluation of Heath to determine whether he had a mental abnormality that
predisposed him to committing future criminal sexual acts. Dr. Phenix relied on Heath' s
criminal legal records, parole violation reports, police reports, charging documents, conviction
documents; juvenile custody documents, and Heath' s treatment documents. She explained
Heath' s criminal behavior as previously described. Pertinent facts leading to Dr. Phenix' s
diagnoses were Heath' s pattern and duration of behavior toward prepubescent children, including
his reported sexual fondling of a four to five -
year -old child when he was 14; sexual molestation,
including penetration, of a two -year -old girl with whom he admitted to being sexually interested;
and his masturbating to ongoing sexual fantasies about the two -year — girl even during his
old
4
No. 44137 -3 - II
period of treatment. Dr. Phenix diagnosed Heath with pedophilia, a mental abnormality, and two
personality disorders— antisocial personality disorder and borderline personality disorder.
a. Pedophilia
Dr. Phenix explained that in diagnosing a person with pedophilia4, she looked for
individuals reporting abnormal sexual fantasies about children, generally age 13 years and
younger. She had studied Heath' s behavioral pattern since he raped the two- year -old when he
was 14- years -old. She also considered Heath' s subsequent violations of community release
conditions that had involved seeking out and being in the presence of children: ( 1) After Heath' s
July 2008 release from custody back into the community, he had violated his release condition
not to be in the presence of children, when he worked at a carnival; ( 2) Heath had put an eight-
horse leading the horse the festival a month later; ( 3)
year -old boy on a and started out of park
Heath had spent the night with a friend who had a two -year -old child, deliberately putting
himself in a high -
risk situation; ( 4) Heath viewed pornography; ( 5) Heath had moved in with
Brown, who had minor children; ( 6) Heath had given piggyback rides to children and induced
them to mimic a dog' s " humping behavior "5 while playing with the children at a playground in
2010; and ( 7) Heath had forced sexual acts with two 13- year -old females in 2010. Based on her
4
The State offered for the jury' s consideration the Diagnostic and Statistical Manual of Mental
Disorders ( 4th rev. ed. 2000) ( DSM or TR) definition
DSM- IV - of " pedophilia," exhibit 21. 3
VRP at 239. The DSM is an American Psychiatric Association publication that provides criteria
for the classification of mental disorders. commonly used by mental health professionals to
determine a patient' s diagnosis.
5 3 VRP at 253.
5
No. 44137 -3 -II
evaluation, Dr. Phenix concluded " to a reasonable degree of psychological certainty" that Heath
had pedophilia. 3 VRP at 256.
b. Antisocial personality disorder
Dr. Phenix explained that an individual has antisocial personality disorder6 when he or
she violates the rights of others, engages in criminal behaviors, and is generally associated with
jail terms, going to prison, and incarceration for criminal behavior. Dr. Phenix also explained
that personality disorders can " further sex offending" because such individuals tend to disregard
the law. 3 VRP at 258.
Dr. Phenix diagnosed Heath with antisocial personality disorder because of his repeated
failures to conform to social norms with lawful behaviors: ( 1) Heath was engaged in a number
of domestic violence incidents with various girlfriends; ( 2) Heath had been in and out of custody
since the age of 14; ( 3) Heath had a striking lack of compliance with community supervision or
parole; ( 4) Heath exhibited deceitfulness by denying his criminal sexual behavior; ( 5) Heath
demonstrated significant impulsivity and an inability to consider the consequences of his
behaviors, such as molesting his father' s girlfriend' s two- year -old daughter; and ( 6) Heath' s
uncontrolled violent tendencies resulted in his engaging in fights with teachers and peers in
school and being aggressive to his peers in juvenile custody.
7,
Dr. Phenix also assessed Heath on a Hare Psychopathy Checklist- Revised ( PCL -
R)
through a series of interviews and review of past records. Heath scored a 33 out of 40 on the
6 The State also offered the DSM definition of "antisocial personality disorder" as an illustrative
exhibit for the jury. 3 VRP at 257.
7
The State introduced the PCL -
R as an illustrative exhibit.
No. 44137 -3 -II
R, in the high
PCL - range; this high score signaled to Dr. Phenix that Heath ( 1) had a high
psychopathy, ( 2) had a stronger than average propensity for violent behavior in the future, ( 3)
would likely engage in future violations of community supervision and a greater than average
amount of future sexual criminal behavior, and ( 4) suffered from a pervasive and " particularly
severe" form of antisocial personality disorder. 3 VRP at 271.
c. Borderline personality disorder
8
Dr. Phenix also diagnosed Heath with borderline personality disorder. She explained
that, unlike antisocial personality disorder, borderline personality disorder focuses more on
maladaptive relationships with others and involves an impaired ability to develop and to
maintain close friendships and intimate relationships. 3 VRP at 272. Dr. Phenix found that
Heath had traits of borderline personality disorder, including lengthy histories of troubled
relationships, such as ( 1) abandonment by his mother; ( 2) " clingy "9 behavior with his girlfriends,
which led to arrests for stalking; ( 3) physically assaulting his girlfriends; ( 4) impulsive behavior
and alcohol abuse; ( 5) suicidal behaviors, a common symptom of borderline personality disorder;
and ( 6) mood instability. Dr. Phenix opined that although borderline personality disorder did not
have " the strongest relationship" in this case, it was likely to lead to inappropriate sexual activity
because it affects. Heath' s choice -making and the persons with whom he interacts. 3 VRP at 276.
Dr. Phenix reiterated that she had diagnosed Heath with both antisocial personality disorder and
borderline personality disorder.
8 The State introduced the definition of "borderline personality disorder" from the DSM -IV -
TR
as an illustrative exhibit for the jury. 3 VRP at 271.
9 3 VRP at 273.
7
No. 44137 -3 - II
d. " Mental abnormality"
10
Dr. Phenix then opined about Heath' s" mental abnormality. " 3 VRP at 277. She
explained that " mental abnormality" is a condition that affects either the volitional or emotional
capacity of a person, for example, predisposing a person to act out in criminal sexual ways. 3
VRP at 279. Dr. Phenix opined that Heath' s pedophilia constituted a mental abnormality that
affected his emotional capacity: For example, when Heath tried to engage in sexual intercourse
with the two - old, he
year - penetrated her; and when she screamed, he said, " If you don' t stop
screaming, I will push it in farther," demonstrating that Heath could not appreciate the pain he
caused to others. 3 VRP at 279. Dr. Phenix also opined that ( 1) Heath' s pedophilia predisposed
him to commit criminal sexual acts that menaced the health and safety of others; ( 2) Heath had a
mental abnormality to a reasonable degree of psychological certainty; and ( 3) Heath had serious
difficulty controlling his sexually violent behavior, to which his personality disorders also
contributed.
Dr. Phenix further testified that Heath had reoffended in 2010, " has not been out in the
since that time," and had not completed treatment. 3 VRP at 310. Dr. Phenix also
community
considered how safe Heath would be in the community " should he be released" and that Heath
had about a year and a half left of parole or community supervision " once he' s released." 3 VRP
at 311. Dr. Phenix opined that Heath was not " safe to be released to the community until he has
sufficient treatment and demonstrated that he can comply with conditions." 3 VRP at 312. Dr.
1°
The State offered the definition of "mental abnormality" as an illustrative exhibit for the jury.
3 VRP at 277.
8
No. 44137 -3 - II
Phenix concluded that Heath is a high risk sex offender and that he should remain confined for
treatment. 3 VRP at 313.
B. Motion for Mistrial
Juror 9 wrote the following note to the trial court one day after trial proceedings:
A] t 4: 20 pm we as jurors were wanting to leave in jury room. [ A] jur[ or] said " Is
he incarcerated now ?" a couple jur[ ors] said yes. One jur[ or] was talking to a
friend jur[ or]. She stated something like this may not be exact words " yes he is."
I ... looked to see where he was on the internet and the other jur[ or] said " where
is he." . She shook her head but I did not hear what she said.
Clerk' s Papers ( CP) at 863. The next day, the trial court held a hearing to address Juror 9' s note.
Heath moved for mistrial based on possible juror misconduct. The trial court opined that the
prejudice was not great enough to declare a mistrial and suggested bringing the jury in to
question them individually. The trial court then spoke with Juror 9, who said she had not told
anyone she had sent the note to the court. The trial court said it was " going to keep this
anonymous from the other jurors." 4 VRP at 325. Next, the trial court called the other jurors
individually to ask whether there had been any discussion about a juror' s looking up Heath on
the internet. All the jurors responded in the negative. Juror 11, who had allegedly done an
internet search for Heath, told the court that ( 1) she had used the Kitsap County website for work
but had not looked up anything about Heath; ( 2) she had told Juror 8 about having been on the
Kitsap County website, which she used for work on a daily basis, hence chancing upon Heath' s
name; and ( 3) knowing Heath' s name showed up on the Kitsap County website would not have
impaired her ability to hear the case fairly. Juror 8 reported that ( 1) he did not hear any jurors
talk about looking up Heath on the internet; ( 2) " somebody said something about they were
whether. or not he was incarcerated," 4 VRP at 348; and ( 3) such information
wondering ...
9
No. 44137 -3 -II
would not impact his ability to serve as a juror because he " would assume most people are
incarcerated if they are in this situation." 4 VRP at 348. Juror 13 did not hear anything about
Heath or anyone talk about searching the internet, but someone had commented about Dr.
Phenix' s " articulating" speech. 4 VRP at 332.
The trial court decided not to declare a mistrial because ( 1) the fact of Heath' s
incarceration was well known to the jury panel; and ( 2) reinstruction of the jury was sufficient to
take care of the issue. Heath' s incarceration since February 2010 had come to the jury' s
attention in many different ways, and there had been no motions in limine to keep such
information from the jury. The trial court also noted that Juror 11 was very clear that she had
merely made a remark or mention about Heath' s possible incarceration and that there had been
no discussion beyond that remark. Juror 8 similarly reported that there had been no discussion
about Heath' s incarceration and that it had been a passing remark.
The trial court again called Juror 13 to clarify the comment about Dr. Phenix; Juror 13
responded there had been a comment about Dr. Phenix' s speech being " so articulated," but she
Juror 13) had heard nothing about incarceration. 4 VRP at 355. Heath argued that the juror' s
comment about Dr. Phenix' s being articulate was a comment on the evidence. Disagreeing, the
trial court ruled that ( 1) the comment about Dr. Phenix' s speech was not a comment on the
evidence or her credibility, but rather about how Dr. Phenix had appeared to the jury; and ( 2)
such a comment did not rise to the level of unfair prejudice that would taint the jury panel. The
10
No. 44137 -3 -II
11
trial court then brought in the entire jury, read them the " fair trial" instruction again, and
reminded them not to talk or research outside the courtroom. 4 VRP at 365.
C. Post mistrial motion trial testimony
After the trial court denied Heath' s motion for a mistrial, the trial testimony resumed.
1. Heath
Heath testified that his half brothers had molested him when he was six years old. Heath
described his feelings toward his molestation of the two -year -old girl as " nightmares" and not
fantasies." 5 VRP at 467. Concerning his sexual assaults of the two 13- year — girls, Heath
old
explained that he had taken an Alford plea12 because he did not think a jury would believe he was
innocent, even though the assaults were " something [ he] didn' t do." 5 VRP at 472. As for the
2004 assault of his ex- girlfriend, Heath stated that although he had pushed her into a car, he did
not mean to do so. With respect to his 2005 assault of another ex- girlfriend, Heath denied
having tackled her in the school parking lot, even though he had pled guilty. Heath also admitted
he worked at the carnival in July 2008. He also explained that he had been incarcerated at the
SCC " for a while now." 5 VRP at 471.
11 The instruction stated, in pertinent part:
It is essential for a fair trial that everything you learn about this case comes to you
in this courtroom, and only in this courtroom. There should not be any
discussions about anything about the case with any fellow jurors, family
members, or friends until you are released from that instruction.
Until you are dismissed, again, at the end of the trial, you must avoid any outside
sources such as newspapers, magazines, blogs, the Internet, or radio or television
broadcasts.
4 VRP at 365
12
North Carolina v. Alford, 400 U. S. 25, 37, 91 S. Ct.. 160, 27 L. Ed. 2d 162 ( 1970).
11
No. 44137 -3 - II
2. Dr. Luis Rosell
Dr. Luis Rose11, a psychologist, testified on behalf of Heath, and stated that he did not
agree with Dr. Phenix' s diagnosis of pedophilia and Dr. Phenix' s opinion that Heath was likely
to reoffend. Dr. Rosell opined that Heath' s sexual assault of the 13 -year -olds should not have
been considered in Heath' s pedophilia diagnosis because their statements were inconsistent. Dr.
Rose11 did, however, diagnose Heath with antisocial personality disorder.
3. AC
AC testified that around February 2010, when she had stayed at Brown' s house, Heath
had sat on a couch next to her, pinned her down, kissed her, and raped her.
D. Jury Instructions
When the trial court discussed the parties' proposed jury instructions, Heath requested a
Petrich13 instruction; the State objected that such instruction was neither appropriate nor required
in SVP cases. Heath told the trial court to " take [ his Petrich instruction request] under
advisement." 6 VRP at 647. The State told the trial court that it had found a case, In re Det. of
Halgren, 156 Wn.2d 795, 807, 132 P. 3d 714 ( 2006), which stood for the proposition that it was
inappropriate in SVP cases to give a Petrich instruction. Heath did not object. And the trial
court proceeded, without giving a Petrich instruction.
The jury found that the State had proved beyond a reasonable doubt that Heath was a
SVP. Heath appeals.
13 State v. Petrich, 101 Wn.2d 566, 572, 683 P. 2d 173 ( 1984).
12
No. 44137 -3 -II
ANALYSIS
I. JUROR MISCONDUCT
Heath argues that repeated instances of juror misconduct violated his right to a fair trial.
Heath specifically asserts that the jurors engaged in misconduct by ( 1) gathering extrinsic
evidence of Heath' s incarceration and presenting it to the other jurors; ( 2) lying about having
discussed Heath' s incarceration; ( 3) ignoring the trial court' s instruction not to discuss the case
or evidence until deliberations; and ( 4) expressing praise for Dr. Phenix before Heath cross -
examined her, and before deliberations, which conduct we should presume was prejudicial.
Even assuming, without deciding, that the jury engaged in misconduct, the misconduct that
Heath asserts does not warrant a new trial.
A trial court' s decision to deny or grant a motion for mistrial is a matter addressed to the
sound discretion of the trial court, which we review for abuse of discretion. State v. Tigano, 63
Wn. App. 336, 342, 818 P. 2d 1369 ( 1991), review denied, 118 Wn.2d 1021 ( 1992). A trial court
abuses its discretion when it acts on untenable grounds or its ruling is manifestly unreasonable.
State v. Barnes, 85 Wn. App. 638, 669, 932 P. 2d 669, review denied, 133 Wn.2d 1021 ( 1997).
Litigants are entitled to a fair trial, not a perfect one. McDonough Power Equip., Inc. v.
Greenwood, 464 U. S. 548, 553, 104 S. Ct. 845, 78 L. Ed. 2d 663 ( 1984). As a general rule, an
appellate court is reluctant to inquire into how a jury arrived at its verdict. State v. Balisok, 123
Wn. 2d 114, 117, 866 P. 2d 631 ( 1994). Courts grant a new trial only where juror misconduct1141
14 The introduction of extrinsic evidence by a juror to fellow jurors is juror misconduct and can
be grounds for a new trial. Balisok, 123 Wn.2d at 118. Extrinsic evidence is information, oral or
documented, that is outside all the evidence admitted at trial. Balisok, 123 Wn.2d at 118.
13
No. 44137 -3 - II
has prejudiced the defendant. State v Earl, 142 Wn. App. 768, 774, 177 P. 3d 132, review denied,
164 Wn.2d 1027 ( 2008); see also CrR 7. 5( a) ( new trial warranted only where a " substantial right
of the defendant was materially affected[.] ").
Heath argues that jury misconduct is presumed prejudicial and that the State failed to
prove, beyond a reasonable doubt, that the misconduct could not have affected the jury' s verdict.
We may presume prejudice on a showing of misconduct; but such a presumption can be
overcome by " an adequate showing that the misconduct did not affect the [ jury' s] deliberations."
State v. Depaz, 165 Wn.2d 842, 856, 204 P. 3d 217 ( 2009). Here, regardless of whether prejudice
is presumed in theory, the alleged misconduct could not have affected the jury' s verdict.
First, contrary to Heath' s assertion, Juror 11' s internet information about Heath' s
incarceration was not " extrinsic evidence" because the jury had already heard other evidence of
15
Heath' s incarceration during tria1. Balisok, 123 Wn.2d at 118 ( extrinsic evidence is
information outside all the evidence admitted at trial); Meerdink v. Krieger, 15 Wn. App. 540,
546, 550 P. 2d 42, review denied, 87 Wn.2d 1011 ( 1976) ( deliberating juror' s factual assertions
about amount of damages did not warrant new trial when amount of damages was within the
testimony presented at trial).
15 For example, on October 9, the jury heard Heath' s deposition clip in which he repeatedly
referred to being at the SCC, that he was " locked up," that had no contact with his family since
he had been at the SCC, and that he had been incarcerated since about February 2010. CP at
540. Dr. Phenix also testified that ( 1) Heath " has not been outin the community since" he
reoffended in 2010, 3 VRP at 310; ( 2) Heath would likely reoffend " should he be released," 3
VRP at 3) Heath had about a year and a half left of parole or community supervision " once
311; (
he' s released," 3 VRP at 311; and ( 4) Dr. Phenix she did not think " that he is safe to be released
to the community until he has sufficient treatment and demonstrated that he can comply with
conditions." 3 VRP at 312.
14
No. 44137 -3 - II
Second, the instructions stated that for the jury to find Heath a SVP, the State had to
prove that ( 1) he had been convicted of a crime of sexual violence, here, first degree child rape;
2) he suffered from a mental abnormality or personality disorder that caused serious difficulty in
controlling his sexually violent behavior; and ( 3) his mental abnormality or personality disorder
made him likely to engage in predatory acts of sexual violence. All three factors were clearly
established independent of any information about Heath' s incarceration.
Heath conceded his first degree child rape conviction. Dr. Phenix testified
with based
fact - support, that to a reasonable degree of psychological certainty, ( 1) Heath
suffered from pedophilia and two personality disorders —antisocial personality disorder and
borderline personality disorder; and ( 2) Heath had a stronger propensity than the average person
to engage in violent behavior, violations of community supervision, and a greater amount of
future sexual criminal behavior; and ( 3) Heath' s borderline personality disorder would likely to
lead to inappropriate sexual activity because it affected his choice -making and with whom he
interacted.
We hold that, based on the substantial evidence already before the jury, no juror
misconduct prejudiced the outcome of the trial, the jury would have found Heath was a SVP
regardless of the alleged juror misconduct, and Heath is not entitled to a new trial on this ground.
Therefore, we affirm the trial court' s denial of Heath' s motion for a mistrial.
16 Heath also asserts that juror misconduct occurred when jurors commented about Dr. Phenix' s
articulateness during her testimony. Heath provides no authority or further supporting argument
for the proposition that expressing praise for an expert witness' s articulateness constitutes juror
misconduct. Because this asserted error lacks developed supporting argument as RAP 10. 3( a)( 6)
requires, we need not further consider it. Nevertheless, even had Heath developed this argument,
he fails to show resulting prejudice.
15
No. 44137 -3 -II
II. UNANIMITY INSTRUCTION
Heath next contends that he was denied his right to a unanimous jury because the trial
court ( 1) failed to instruct the jury on the need for unanimity about which of his multiple mental
disorders underlay its SVP determination, and ( 2) the State did not offer sufficient evidence to
support each alternative means. This argument fails.
RCW 71. 09. 060 provides that when a jury determines a person is a SVP, the verdict must
be unanimous. Under RCW 71. 09. 020( 18), a SVP is any person who has been convicted of or
charged with a crime of sexual violence and who suffers from a mental abnormality or a
personality disorder that makes the person likely to engage in predatory acts of sexual violence if
not confined in a secure facility.
Our Supreme Court has held that ( 1) the alternative means test applies to SVP
proceedings, and ( 2) the SVP statute allows two alternative means — "mental abnormality" and
personality disorder " —to support a SVP determination. Halgren, 156 Wn.2d at 810, 811.
Although the State need prove only one alternative means to support a SVP determination, where
the evidence is sufficient to prove both alternative means ( mental abnormality and personality
disorder) beyond a reasonable doubt, a trial court does not violate the SVP' s constitutional right
to unanimity by failing to instruct the jury that it must be unanimous about which means it used
to support its SVP determination. Halgren, 156 Wn.2d at 811, 812. If in addition to or in lieu of
the mental abnormality means, the SVP suffers from two personality disorders, the jury need not
16
No. 44137- 3- 11
be unanimous about which personality disorder contributed to its SVP determination. See In re
Det. ofSease, 149 Wn. App. 66, 78 -79, 201 P. 3d 1078, review denied, 166 Wn.2d 1029 ( 2009). 17
Halgren suffered from " at least" one mental abnormality and one personality disorder.
Halgren, 156 Wn.2d at 800. Halgren argued that the trial court should have instructed the jury
that it had to agree unanimously about whether it was his mental abnormality or personality
disorder that caused him to be a SVP. Halgren, 156 Wn.2d at 807. The Supreme Court rejected
this argument because there was sufficient evidence of both the mental abnormality and the
personality disorder, noting that " because an SVP may suffer from both defects simultaneously,
the mental illnesses are not repugnant to each other and may inhere in the same transaction."
Halgren, 156 Wn.2d at 810.
To determine whether the jury' s SVP verdict was based on substantial evidence of both
alternative means here, we must determine whether the evidence, " viewed in a light most
favorable to the State, is sufficient to persuade a fair -
minded, rational person that the State has
17 More specifically, as we held in Sease:
The SVP statute delineates two alternatives for satisfying the State' s
burden of establishing a mental condition " which makes the person likely to
engage in predatory acts of sexual violence if not confined in a secure facility" —
mental abnormality or personality disorder. RCW 71. 09. 020( 16). There is no
dispute that Sease sufferedfrom one or, possibly, two personality disorders.
As in [ In re Pers. Restraint Petition of Patrick James Jeffries, 110 Wn.2d
326, 752 P. 2d 1338, cert. denied, 488 U. S. 948 ( 1988)], the jury here need only
have unanimously found that the State proved that Sease suffered from a
personality disorder that made it more likely that he would engage in acts of
sexual violence if not confined to a secure facility. The jury need not have
unanimously decided whether Sease sufferedfrom borderline personality disorder
or antisocial personality disorder. Therefore, the trial court did not err in failing
to give a unanimity instruction and it is not an error that Sease can raise for the
first time on appeal.
Sease, 149 Wn. App. at 78 -79 ( emphasis added).
17
No. 44137 -3 - II
proved beyond a reasonable doubt that [ the defendant] is a sexually violent predator." State v.
Hoisington, 123 Wn. App. 138, 147, 94 P. 3d 318 ( 2004), review denied, 153 Wn.2d 1031
2005). " The substantial evidence test is satisfied if this court is convinced that ` a rational trier
of fact could have found each means of [ fulfilling the SVP requirements] proved beyond a
reasonable doubt. "' Halgren, 156 Wn.2d at 811 ( quoting State v. Kitchen, 110 Wn.2d 403, 410-
11, 756 P. 2d 105 ( 1988)).
Here, there was substantial evidence of both Heath' s personality disorders and his mental
abnormality, either of which alternate means would support the jury' s determination that Heath
is a SVP. Dr. Phenix testified at length about Heath' s pedophilia, antisocial personality disorder,
and borderline personality disorder. Dr. Phenix also opined, to a reasonable degree of
psychological certainty, that ( 1) Heath' s pedophilia constituted a mental abnormality that
affected his emotional capacity and predisposed him to commit criminal sexual acts that
menaced the health and safety of others; and ( 2) Heath' s personality disorders —antisocial
personality disorder ( predominantly) and borderline personality disorder —contributed to his
sexually violent behavior, which he had serious difficulty controlling. Here, a rational trier of
fact could have found each means of being a SVP beyond a reasonable doubt.
Viewing the evidence in the light most favorable to the State, we hold there was
sufficient evidence to persuade a fair -
minded rational person beyond a reasonable doubt that
Heath suffered from both personality disorders and a mental abnormality, each and both of
which made him more likely to engage in predatory acts of sexual violence if not confined to a
18
No. 44137 -3 - II
secure facility. See Halgren, 156 Wn. 2d at 811; Sease, 149 Wn. App. at 80. Accordingly, 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:
F 3rgej', A.C..I.
Lee,
19