State v. Black (In Re Black)

IN CLERKS OFFICE This opinion was filed for record
KJPI@£ COURT,SOOE OF WMSHMSnm

da7e_111£JL2JS[. at .»K-. on

3i'LAAGHIEFJUSTKE
UaAAJ^I I
j
SUSAN L. CARLSON
SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

In the Matter of the Detention of No. 94494-6
Mark A. Black.

STATE OF WASHINGTON,

Respondent,
V.

En Banc
MARK A. BLACK,

Petitioner. Filed: Allfi fl 7 ?niB

YU,J.— To commit an individual as a sexually violent predator(SVP)

pursuant to chapter 71.09 ROW,the State must prove beyond a reasonable doubt

that the individual "has been convicted of or charged with a crime of sexual

violence and [he or she] 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). This case concerns the

admissibility of expert testimony about whether the subject individual suffers from

a mental abnormality.
In re Det. ofBlack, No. 94494-6

The trial court held a Frye^ hearing and excluded expert testimony regarding

"hebephilia" on the basis that such a diagnosis is not generally accepted by the

relevant scientific community. The parties do not challenge that portion ofthe

court's decision. However, petitioner Mark Black argues that the court committed

reversible error by allowing expert testimony on a diagnosis of"paraphilia not

otherwise specified(NOS), persistent sexual interest in pubescent aged females,

non-exclusive."

The Court of Appeals affirmed Black's civil commitment in an unpublished

opinion. In re Det. ofBlack, No. 71292-6-1, slip op. at 10(Wash. Ct. App. Mar.

27, 2017)(unpublished), http://www.courts.wa.gov/opinions/pdf/712926.pdf,

review granted, 189 Wn.2d 1015, 404 P.3d 480(Wash. Oct. 5, 2017). It concluded

that regardless of whether paraphilia NOS was improperly admitted, there was

sufficient evidence to find Black had a mental abnormality and a personality

disorder based on two other diagnoses that Black did not challenge on appeal. Id.

We affirm the Court of Appeals on different grounds and hold that the trial court

did not err as a matter oflaw when it admitted expert testimony on paraphilia

NOS, nor did it abuse its discretion when it allowed an expert to describe Black's

specific paraphilic focus as "persistent sexual interest in pubescent aged females."

Frye v. United States, 54 App. D.C. 46,293 F. 1013 (1923).
In re Det. ofBlack, No. 94494-6

FACTUAL AND PROCEDURAL BACKGROUND

In 2011,the State filed a petition to civilly commit 40-year-old Mark Black

as an SVP prior to his scheduled release from prison. In support of its petition, the

State included the evaluation of Dr. Dale Arnold, who diagnosed Black with sexual

sadism; paraphilia NOS,persistent sexual interest in pubescent aged females,

nonexclusive; and personality disorder NOS with antisocial and narcissistic

characteristics.

Prior to trial. Black moved to exclude evidence of hebephilia and paraphilia

NOS, persistent sexual interest in pubescent aged females, arguing that hebephilia

is inadmissible pursuant to Frye. Black was not diagnosed with hebephilia, but he

argued that Dr. Arnold's paraphilia NOS diagnosis was just another name for

hebephilia and was therefore also inadmissible. According to testimony at the

Frye hearing by Black's expert. Dr. Karen Franklin, hebephilia "[i]n general . . .

has something to do with sexual attraction or sexual activity or both with . . .

adolescents." Report ofProceedings(RP)(Sept. 13, 2013)at 35. Dr. Franklin

testified that "[tjhere's nothing abnormal or pathological about a certain level of

attraction" between an adult and an adolescent. Id. at 93.

The trial court excluded evidence of hebephilia from being presented at trial

because it "is not favored in the relevant scientific community." Id. at 149.

However,the trial court allowed expert testimony from Dr. Arnold on the basis
In reDet. ofBlack, No. 94494-6

that paraphilia NOS is generally accepted in the psychological community and that

Dr. Arnold used commonly accepted methodology to diagnose Black.

At trial, the jury was instructed that to determine Black is an SVP it must

find that the State proved the following elements beyond a reasonable doubt:

(1) That Mr. Black has been convicted of a crime of sexual
violence;

(2) That Mr. Black suffers from a mental abnormality or
personality disorder which causes serious difficulty in controlling his
sexually violent behavior; and

(3) That this mental abnormality or personality disorder
makes Mr. Black likely to engage in predatory acts of sexual violence
unless confined to a secure facility.

Clerk's Papers(CP)at 1385. The jury was further instructed that its verdict needed

to be unanimous, but that it "need not be unanimous as to whether a mental

abnormality or personality disorder has been proven beyond a reasonable doubt so

long as each juror finds that at least one ofthese alternative means has been proved

beyond a reasonable doubt." Id.

Dr. Arnold testified that each element was satisfied in Black's case. First, he

testified that Black had been convicted oftwo counts of child molestation in the

second degree and one count of attempted child molestation in the second degree,

which are all crimes of sexual violence.^

^ The jury heard testimony about these ineidents. Black's former stepdaughter testified
that he had sexual intercourse with her when she was 13. 4 Verbatim Report ofProceedings
In re Det. ofBlack, No. 94494-6

Second, Dr. Arnold testified that Black suffers from two mental

abnormalities (sexual sadism and paraphilia NOS, persistent sexual attraction to

pubescent aged females, nonexclusive) and a personality disorder (personality

disorder NOS), each of which independently causes him serious difficulty

controlling his sexually violent behavior. Third, Dr. Arnold concluded that in his

opinion. Black "is more likely than not to engage in predatory acts of sexual

violence if not confined." 5 Verbatim Report ofProceedings(VRP)(Oct. 28,

2013) at 480.

Black presented his own expert witness, Dr. Joseph Plaud, who testified that

Black does not suffer from a mental abnormality or personality disorder at this

time. Dr. Plaud further testified that the paraphilia NOS diagnosis was

inappropriate because "it doesn't represent fundamentally disordered sexual

arousal. Men are attracted to pubescence." 9 VRP(Nov. 4, 2013) at 946. When

asked whether an adult male's attraction to a pubescent aged female could ever be

deviant, he testified that it might be illegal but "it doesn't happen as a result of

underlying sexual deviance." Id. at 947.

The jury unanimously determined Black met the criteria for an SVP,and the

court ordered his civil commitment.

(VRP)(Oct. 24, 2013) at 220-22. The friend of a former girlfriend's daughter testified that when
she was 12, he fondled her breasts and rubbed his crotch against hers. 8 VRP (Oct. 31, 2013) at
859-60.
In re Det. ofBlack, No. 94494-6

ISSUE

Whether expert testimony on paraphilia NOS, persistent sexual interest in

pubescent aged females was improperly admitted at trial?

ANALYSIS

This case does not ask us to determine whether evidence of hebephilia can

be offered as evidence of a mental abnormality in accordance with Frye. The trial

court excluded any evidence of hebephilia following a Frye hearing, and the State

has not appealed that decision. Instead, we consider whether the trial court

improperly admitted expert testimony on paraphilia NOS,persistent sexual interest

in pubescent aged females as evidence of Black's rnental abnormality.

Our review of the trial court's Frye determination regarding paraphilia NOS

is de novo. In re Det. ofHalgren, 156 Wn.2d 795, 802-03, 132 P.3d 714(2006).

Our review of the scope of testimony that the trial court actually allowed is for an

abuse of discretion. Id. at 802.

A. Black's paraphilia NOS diagnosis

Paraphilic disorders are characterized by

recurrent, intense sexually arousing fantasies, sexual urges, or behaviors
generally involving 1) nonhuman objects, 2)the suffering or humiliation of
oneself or one's partner, or 3)children or other nonconsenting persons that
occur over a period of at least 6 months ...[and] cause clinically significant
distress or impairment in social, occupational, or other important areas of
functioning.
In re Det. ofBlack, No. 94494-6

Am.Psychiatric Ass'n,Diagnostic and Statistical Manual of Mental

Disorders: DSM-IV-TR 566 (4th rev. ed. 2000). Both the former DSM-IV-TR

and the current American Psychiatric Association, Diagnostic and Statistical

Manual ofMental Disorders (5th ed. 2013)(DSM-5)emphasize that paraphilic

sexual urges are not considered a disorder unless they are also persistent over an

extended period oftime and cause significant distress or impairment. DSM-IV-TR

at 568; DSM-5 at 686.^

While certain paraphilic disorders, such as voyeurism and fetishism, are

specifically enumerated, others, such as necrophilia and zoophilia, are not.

Paraphilia NOS is a diagnosis reserved for those individuals whose paraphilic

focus does not fall within the descriptions of any ofthe eight enumerated

paraphilias. It is followed by a description ofthe individual's paraphilia, which, as

defined in the DSM-5,is "any intense and persistent sexual interest other than

sexual interest in genital stimulation or preparatory fondling with phenotypically

normal, physically mature, consenting human partners." DSM-5 at 685. The

DSM-5 also allows for a diagnosis of unspecified paraphilic disorder, where the

clinician cannot or does not wish to specifically identify the individual's paraphilic

focus. Id. at 705.

^ Although Dr. Arnold diagnosed Black in accordance with the DSM-IV-TR, he testified
at trial that his three diagnoses would be unchanged using the DSM-5. 5 VRP (Oct. 28, 2013) at
384.
In re Det. ofBlack, No. 94494-6

Dr. Arnold diagnosed Black with paraphilia NOS and described his

paraphilic focus as pubescent aged females. He reached this conclusion after

reviewing approximately 4,000 pages of records, administering a psychological

test to Black, and interviewing him in 2008 and 2011. He described in his

evaluation that Black "enjoyed 'grooming' young girls because he found the

attention from them exciting." CP at 407. He was sexually aroused by their

budding breasts and also emotionally attracted to them because they were easy to

manipulate.

What makes Black's interest rise to the level of paraphilic disorder, thus

evincing a mental abnormality, is not specifically his sexual focus on pubescent

girls, but that he has demonstrated an inability to control his behavior to such an

extent that he has committed repeated sexual offenses against multiple children

who were legally incapable of giving consent. As Dr. Arnold concluded in his

evaluation,"despite prior sanctions for virtually identical grooming and sexually

exploitive behavior,[Black] was unable to resist the opportunity to reoffend." Id.

at 426.

B. Paraphilia NOS is generally accepted within the psychological community

As a threshold matter of law, the trial court correctly ruled that paraphilia

NOS is generally accepted as a diagnosis. It is recognized in recent editions ofthe

DSM,which is "a standard reference for clinical practice in the mental health
In re Det. ofBlack, No. 94494-6

field." DSM-5 at xli. Paraphilia NOS has also been a basis for numerous SVP

determinations, and this case does not present any reason to question that

precedent. See, e.g.. In re Det. ofStout, 159 Wn.2d 357, 363, 150 P.3d 86(2007)

(paraphilia NOS,nonconsent); Halgren, 156 Wn.2d at 800 (paraphilia NOS,

nonconsent); In re Det. ofCoe, 175 Wn.2d 482, 489, 286 P.3d 29(2012)

(Paraphilia NOS,urophilia, and coprophilia).

Indeed, Black conceded in his briefing that he was not "seek[ing] to

challenge . . . generally" the diagnosis of paraphilia NOS, only the specific

diagnosis of paraphilia NOS,persistent sexual interest in pubescent aged females.

CP at 344; Pet'r's Suppl. Br. at 15. He contends that because sexual interest in

pubescent females is not abnormal, it cannot be the basis of a paraphilic disorder

evincing a mental abnormality.

The presence of a paraphilic disorder, however, does not turn on whether an

individual's sexual focus is abnormal, but on the consequences of that individual's

paraphilia in his or her specific circumstances. DSM-5 at 685-86. The DSM

makes clear that the eight enumerated paraphilias are a nonexhaustive list because

"almost any [paraphilia] could, by virtue of its negative consequences for the

individual or for others, rise to the level of a paraphilic disorder.'"* Id. at 685.

"* We also note that we have never required that a specific diagnosis be in the DSM before
it can be offered as evidence of an individual's mental abnormality. In re Pers. Restraint of
Young, 122 Wn.2d 1, 857 Wn.2d 989(1993). For example, in Young, we noted that "'[t]he fact
In re Det. ofBlack, No. 94494-6

Therefore, if a person meets the clinical definition of paraphilia, the question of

whether he or she has a paraphilic disorder evincing a mental abnormality depends

entirely on the consequences of his or her paraphilic preferences.

Black meets the clinical definition of having a paraphilia because persistent

sexual interest in pubescent girls is properly specified as a distinct paraphilia in

appropriate cases. The DSM defines three broad categories of paraphilic foci, one

^ of which is "children or other nonconsenting persons." DSM-IV-TR at 566. The

term "children" is not defined, but it is not limited to prepubescent children (as

pedophilia is), and it is undisputed that the child victims of Black's sexual violence

were incapable of consenting as a matter of law.

While it may be true that an adult's attraction to adolescents is not

necessarily a "mental abnormality" in itself. Black's persistent sexual attraction to

pubescent aged females, generally ages 11 to 14, is disordered and evidence of a

mental abnormality because of its negative consequences. As a result of his

paraphilic focus, he has committed multiple acts of criminal sexual violence

against children, served time in prison for those crimes, been ostracized from his

family, and ruined other relationships. Accordingly, the trial court did not err as a

matter of law when it admitted evidence of paraphilia NOS in this case.

that pathologically driven rape ... is not yet listed in the[DSM]... does not invalidate such a
diagnosis.'" Id. at 28 (quoting Alexander D. Brooks, The Constitutionality and Morality of
Civilly Committing Violent Sexual Predators, 15 U.Puget Sound L. Rev. 709,733 (1992)).

10
In re Det. ofBlack, No. 94494-6

C. The trial court did not abuse its discretion when it permitted expert
testimony on the specific nature of Black's paraphilia

Although Black does not challenge the diagnosis of paraphilia NOS

generally, he does argue that the trial court erred by allowing Dr. Arnold to testify

about the particular paraphilia NOS diagnosis in this case. We review the trial

court's decision about the permissible scope of Dr. Arnold's expert testimony for

abuse of discretion. Halgren, 156 Wn.2d at 802. "A trial court abuses its

discretion if the 'exercise of its discretion is manifestly unreasonable or based upon

untenable grounds or reasons.'" In re Det. ofPost, 170 Wn.2d 302, 309, 241 P.3d

1234(2010)(quoting State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995)).

Black argues that the trial court correctly determined hebephilia is not

admissible pursuant to Frye, but erred when it nevertheless allowed testimony on

the paraphilia NOS diagnosis because. Black reasons, the two diagnoses are

synonym,ous. Black's argument does not account for the purpose of a Frye

determination, and it ignores the very real differences between a potential

paraphilic category of hebephilia and the specific paraphilia NOS diagnosis in this

case.

The purpose of a Frye hearing is not to verify the accuracy of each discrete

conclusion that an expert reaches but to determine whether the expert reached

those conclusions by properly applying accepted ''underlyingprinciples''' to the

11
In re Det. ofBlack, No. 94494-6

information presented. State v. Copeland, 130 Wn.2d 244, 255,922 P.2d 1304

(1996)(emphasis added). There is no question that the psychological community

generally accepts the reliability of the underlying principle that paraphilia NOS is a

valid diagnosis, which may include specifiers indicating the individual's paraphilic

focus where appropriate. That was the only question regarding Dr. Arnold's

testimony on paraphilia NOS that needed to be answered in a Frye hearing, and the

Trial court correctly determined that the paraphilia NOS testimony offered by Dr.

Arnold was admissible in accordance with. Frye.

But even if a Frye hearing were intended to determine the validity of an

individual expert's particular conclusions. Black overlooks the important

differences between hebephilia and paraphilia NOS,persistent sexual attraction to

pubescent aged females. Hebephilia is a generally unaccepted diagnosis that is

broadly defined as paraphilic attraction to adolescents up to ages 16 or 17. RP

(Sept. 13, 2013)at 75; CP at 1418. This expansive definition encompasses

behavior that may be legal in many states.^ Meanwhile, paraphilia NOS as

diagnosed in this case describes a very small subset ofthe adolescent population

covered by a diagnosis of hebephilia.^ These pubescent aged females could not

^ We do not opine on whether the legality ofthe behavior plays a role in determining
what constitutes a mental abnormality.
^ At oral argument, the State distinguished between hebephilia and paraphilia NOS by
explaining,"If you want to think of it in terms of a Venn diagram, you would have hebephilia as
a very large circle with what Dr. Arnold is talking about as a very small circle somewhere within

12
In re Det. ofBlack, No. 94494-6

consent to sexual activity with Black as a matter oflaw, but Black nevertheless

repeatedly pursued them as sexual targets.

Finally, Black claims that the trial court unfairly restricted his ability to

challenge the paraphilia NOS diagnosis by preventing him from introducing

evidence of hebephilia. This assertion is contradicted by statements made at the

Frye hearing and trial testimony. At the Frye hearing. Black's counsel confirmed

that the judge's decision did not "in any way limit my ability to cross-examine [Dr.

Arnold], including about the issues that were raised today." RP (Sept. 13, 2013) at

161. The judge agreed.

Black challenged Dr. Arnold's diagnosis during a half day of cross-

examination. Dr. Arnold conceded that there is professional debate about whether

attraction to pubescent aged females is a clinical disorder, and he admitted that

sexual attraction to pubescent aged females "most often" is not a paraphilia. 6

VRP (Oct. 29, 2013)at 514, 520. He also acknowledged that there was no

research on his paraphilic specifier "persistent sexual interest in pubescent

females." Id. at 521.

Black's expert also undermined Dr. Arnold's diagnosis. He rebutted the

basic principle of the diagnosis by testifying that attraction to pubescence can

that circle at the very bottom edge of what constitutes pubescence." Wash. Supreme Court oral
argument,In re Det. ofBlack, No. 94494-6 (Jan. 11, 2018), at 27 min., 10 see., video recording
by TVW, Washington State's Public Affairs Network, http://www.tvw.org.

13
In re Det. ofBlack, No. 94494-6

never be the basis of a sexual deviancy. 9 VRP(Nov. 4, 2013) at 945-47. He said

he had never heard of Dr. Arnold's paraphilic specifier, and he testified at length

about why it was inappropriate in general and in Black's case specifically. Id. at

944-47. Therefore, the record reflects that Black disputed Dr. Arnold's testimony

through rigorous cross-examination and the presentation of his own expert witness.

In sum, we hold that the trial court did not abuse its discretion in admitting

.expert testimony on paraphilia NOS,persistent sexual interesting in pubescent

aged females for purposes of Black's SVP determination.

CONCLUSION

The trial court did not commit reversible error when it admitted expert

testimony on paraphilia NOS,persistent sexual interest in pubescent aged females

as evidence of Black's mental abnormality. There is nothing normal about an adult

man's inability to control his sexual urges with pubescent aged females. We

affirm.

14
In re Det. ofBlack, No. 94494-6

/
}

WE CONCUR:

f

15
In re Det. ofBlack(Mark)

No. 94494-6

MADSEN,J.(dissenting)—^Relying on the fact that "paraphilia not otherwise

specified(NOS)" is generally an accepted diagnosis within the psychological community,

the majority holds that the trial court properly admitted the State's expert testimony on

"paraphilia NOS,persistent sexual interest in pubescent aged females." Majority at 8, 14.

The problem, however, is that despite the paraphilia NOS label, the specifically identified

condition substantially mirrors a diagnosis identified under another name—^hebephilia—

that is controversial within the same scientific community. Further, by admitting the

State's expert's testimonial evidence—regarding paraphilia NOS,persistent sexual

interest in pubescent aged females—^but excluding Mark Black's expert's testimonial

evidence^—^regarding hebephilia and the controversy surrounding such diagnosis—the

trial court, in my view, improperly excluded rebuttal evidence crucial to Black's defense.

For these reasons, as explained below,I dissent.

This civil commitment case concerns the interplay of issues including(1) whether

the trial court's admission of certain expert testimony on mental abnormality was proper
No. 94494-6
Madsen, J., dissenting

under Frye^ and, if not,(2) whether the error was harmless, and (3) disregarding the

improper testimony, whether the remaining evidenee was suffieient to sustain the jury

verdict finding mental abnormality in light of the "alternative means" mental disorders

asserted at trial.

Relevant Facts

Shortly before Black was released from incarceration on child molestation

convictions, the State filed a petition seeking to commit him as a sexually violent

predator. The matter proceeded to a jury trial in 2013.

Dr. Dale Arnold, the State's expert, diagnosed Black with three mental disorders:

(1)sexual sadism,(2)paraphilia not otherwise specified(NOS),persistent sexual interest

in pubescent aged females, nonexclusive, and (3)personality disorder NOS with

antisocial and narcissistic characteristics. Black moved pretrial to exclude Dr. Arnold's

diagnosis of paraphilia NOS under Frye,ER 702, ER 703, and ER 403, contending that

the diagnosis was the same as (or subsumed under) a diagnosis for hebephilia (i.e.,

persistent sexual attraction to pubescent children), a disorder Black argued should be

excluded because it was not generally accepted in the scientific community. The State

moved to strike the Frye hearing, contending that there was nothing novel in Dr. Arnold's

diagnosis.

At the hearing on the motions. Black's expert testified about the controversy and

professional criticism surrounding the hebephilia diagnosis. Dr. Arnold did not testify.

^ Frye v. United States, 54 App. D.C. 46,293 F. 1013 (1923).

2
No. 94494-6
Madsen, J., dissenting

The trial court granted Black's motion to exclude hebephilia evidence but denied his

motion as to Dr. Arnold's diagnosis, thereby foreclosing Black from presenting testimony

critical of hebephilia to undermine Dr. Arnold's diagnosis.

The jury ultimately found Black met the definition of a sexually violent predator,

and the trial court civilly committed him. Following an initial appeal and remand to

Division One,the Court of Appeals held that the evidence was sufficient to support the

commitment order and that the trial court did not commit reversible evidentiary error.^

Black sought and was granted this court's review.

Admissibilitv of Expert Testimonv and Harmless Error

Black challenges the trial court's determination that Dr. Arnold's diagnosis of

paraphilia NOS involving persistent sexual interest in pubescent females satisfies the

Frye standard for admissibility of novel scientific evidence. Black contends that

Arnold's diagnosis is merely a subcategory of hebephilia, a controversial diagnosis that

was rejected for inclusion in the current edition of the American Psychiatric

Association's Diagnostic and Statistical Manual ofMental Disorders (5th ed. 2013)

^ In the prior appeal of this case immediately following the commitment decision. Division One
reversed, holding that the trial court violated Black's right to be present during jury selection. In
re Det. ofBlack, 189 Wn. App. 641, 357 P.3d 91 (2015). In light of its retrial decision. Division
One did not decide Black's contentions concerning the admissibility of Dr. Arnold's paraphilia
diagnosis and sufficiency of the evidence to justify commitment. Id. at 658-59. This court
granted the State's petition for review, reversed, and remanded to the Court of Appeals for
further proceedings. In re Det. ofBlack, 187 Wn.2d 148, 385 P.3d 765 (2016).
On remand, the Court of Appeals reasoned that it need not determine whether Dr.
Amold's paraphilia diagnosis satisfied Frye because any trial court admissibility error was
harmless because evidence supported the additional diagnoses of sexual sadism and personality
disorder, both of which satisfy the statutory definition of a sexually violent predator. See RCW
71.09.020(18). For the reasons discussed herein, 1 disagree.
No. 94494-6
Madsen, J., dissenting

(DSM-V). See In re Pers. Restraint ofMeirhofer, 182 Wn.2d 632, 657-58, 343 P.3d 731

(2015)(Wiggins, J., dissenting)(so noting). Hebephilia is a sexual "attraction to

pubescent children." Id. at 658. Dr. Arnold diagnosed Black with persistent sexual

interest in pubescent aged females, a population that falls within the hebephilia target

group. As noted, the trial court granted Black's motion to exclude evidence of

hebephilia, but permitted Dr. Arnold to testify regarding his diagnosis of paraphilia NOS.

But Dr. Arnold conceded that his diagnosis was premised on the same science

underlying hebephilia, see Clerk's Papers(CP)at 841-42, and he created the paraphilia

NOS with the specific designation to describe Black's mental status because hebephilia is

not a recognized diagnosis.^ Given Dr. Arnold's concession and other expert testimony

^ Dr. Arnold was asked at deposition,"[H]ow is Paraphilia NOS,Persistent sexual interest in
pubescent females. Nonexclusive, different from hebephilia?" CP at 829. He answered as
follows:
[S]o there's eight paraphilias that are listed in the DSM,and that's always been
that way since the DSM-III. And when you diagnose somebody and they have a
paraphilia that's not included in the DSM,then the instruction is to diagnose
Paraphilia Not Otherwise Specified, followed by a description of what it is you
think that person is aroused to.
And so that's what 1 did in this case is I diagnosed Paraphilia NOS,and
then I described what it was that I thought was paraphilic for Mr. Black.
In terms of hebephilia, that's a term that's been used in research and in the
proposed diagnosis in the DSM-V. But it basically describes somebody who's
attracted to somebody who has pubescent features.
So I would say the underlying concept is the same. How one refers to it is
different because hebephilia is not listed in the DSM,so it wouldn't be
appropriate to say the guy is a hebephile, because that's not actually a diagnosis.
I would just say the guy has Paraphilia NOS and his paraphilia is being sexually
attracted to pubescent-aged females.
Id. at 829-30(emphasis added). When pressed as to any differences between his diagnosis and
hebephilia, he replied,"The underlying attraction is the same" and "it's basically the same
construct." Id. at 831. Again, when asked,"Is the research term 'hebephilia' equivalent to your
diagnosis?" Dr. Arnold responded, "It's a term that researchers often use. The underlying
construct is the same." Id. at 842-43.
No. 94494-6
Madsen, J., dissenting

at the Frye hearing noting the hebephilia designation and validity controversy, in my

view, the trial court erred in allowing Dr. Arnold's paraphilia NOS testimony, which

Arnold admits is the same diagnosis as hebephilia,just under a different label.

'"Evidentiary error is grounds for reversal only if it results in prejudice.... An error is

prejudicial if, within reasonable probabilities, had the error not occurred, the outcome of

the trial would have been materially affected.'" In re Det. of West, 171 Wn.2d 383,410,

256 P.3d 302(2011)(alteration in original)(internal quotation marks omitted)(quoting

State V. Neal, 144 Wn.2d 600,611, 30 P.3d 1255 (2001)). Here, the jury deliberated for

four days and at one point informed the trial court that it was having difficulty reaching a

verdict. CP at 1407. Under these circumstances, had the evidentiary error not occurred,

"within reasonable probabilities" the outcome of the trial would have been different. See

id.

Alternative Means

Assuming that the trial court erred in admitting Dr. Arnold's paraphilia NOS

testimony, and thus disregarding that testimony, the sufficiency ofthe evidence to sustain

the jury's verdict becomes doubtful in light of the instructions. To commit Black as a

sexually violent predator, the State had to prove beyond a reasonable doubt, among other

things, that he suffered from a "mental abnormality or personality disorder" that made

him likely to commit future acts of predatory sexual violence if not confined in a secure

institution. RCW 71.09.020(18),.060(1). As noted. Dr. Arnold testified that Black

suffered from three mental disorders:(1)sexual sadism,(2)paraphilia not otherwise
No. 94494-6
Madsen, J., dissenting

specified (NOS), persistent sexual interest in pubescent aged females, nonexclusive, and

(3)personality disorder NOS with antisocial and narcissistic characteristics. The

paraphilia NOS and sadism diagnoses were vigorously contested at trial. Blaek's expert

testified and explained why Blaek's conduct was rough sex, but did not qualify as

sadistic, and further testified that adult males' sexual attraction to pubescent females is

not deviant.

Whether evidence is sufficient to support eivil eommitment as a sexually violent

predator is reviewed under the eriminal law sufficiency standard. In re Det. ofThorell,

149 Wn.2d 724, 744-45, 72 P.3d 708(2003)("when viewed in the light most favorable to

the State, there must be sufficient evidence in the finding of mental illness to allow a

rational trier of faet to eonelude the person facing commitment has serious difficulty

controlling behavior"). While credibility determinations are not reviewable on appeal, as

noted, to commit an individual as a sexually violent predator, the State must prove that

the individual "suffers from a mental abnormality or personality disorder" that makes the

individual likely to commit future acts of predatory sexual violenee if not eonfmed in a

secure institution. RCW 71.09.020(18), .060(1).

That brings us to State v. Woodlyn, 188 Wn.2d 157, 392 P.3d 1062(2017). In my

view, the majority's result is at odds with Woodlyn, concerning the alternative mental

disorders that were asserted, the way that the jury was instrueted, and the general verdict

that the jury reaehed. In Woodlyn, we held,"Our precedent addressing alternative means

crimes requires unanimity as to means only when a general verdict raises due process
No. 94494-6
Madsen, J., dissenting

concerns, i.e., when one or more alternatives presented to thejury are not supported by

sufficient evidence.'''' Id. at 162(emphasis added). Relevant here, this court opined,

"When one alternative means of committing a crime has evidentiary support and another

does not, courts may not assume the jury relied unanimously on the supported means."

Id. Explaining what is required, we opined:

[TJhere are particular situations when express unanimity is required,
specifically when at least one means lacks sufficient evidentiary support.
Washington cases have adopted an analysis that turns on the sufficiency of
evidence as a due process concern: if the jury is instructed on one or more
alternative means that are not supported by sufficient evidence, a
"particularized expression" ofjury unanimity as to the supported means is
required. The purpose of this requirement is to ensure that when a verdict
might be based on more than one alternative, the verdict is adequately
supported.

Id. at 164 (citations omitted)(quoting v. Owens, 180 Wn.2d 90, 95, 323 P.3d 1030

(2014)). Explaining the appropriate remedy, we opined:

A general verdict satisfies due process only so long as each
alternative means is supported by sufficient evidence. If there is
insufficient evidence to support any of the means, a "particularized
expression" ofjury unanimity is required. Thus, a reviewing court is
compelled to reverse a general verdict unless it can rule out the possibility
the jury relied on a charge unsupported by sufficient evidence.

Id. at 165 (citations and emphasis omitted)(quoting Owens, 180 Wn.2d at 95; State v.

Wright, 165 Wn.2d 783, 803 n.l2, 203 P.3d 1027(2009)).

Applying Woodlyn here, instruction 5 stated in relevant part:

To establish that Mr. Black is a sexually violent predator, the State
must prove each of the following elements beyond a reasonable doubt:
(1)That Mr. Black has been convicted of a crime of sexual violence;
No. 94494-6
Madsen, J., dissenting

(2) That Mr. Black suffers from a mental abnormality or personality
disorder which causes serious difficulty in controlling his sexually violent
behavior; and
(3) That this mental abnormality or personality disorder makes Mr.
Black likely to engage in predatory acts of sexual violence unless confined
to a secure facility.

Although you must be unanimous in your verdict, mental
abnormality and personality disorder are alternative means to providing
element two. The jury need not be unanimous as to whether a mental
abnormality or personality disorder has been proven beyond a reasonable
doubt so long as each juror finds that at least one of these alternative means
has been proved beyond a reasonable doubt.

CP at 1385 (emphasis added). The jury delivered a general verdict answering the

following two questions affirmatively: (1)"Has the State proven beyond a reasonable

doubt that Mr. Black suffers from a mental abnormality and/or a personality disorder that

causes serious difficulty in controlling sexually violent behavior?" and (2)"If you

answered 'yes' to Question No. 1, has the State proven beyond a reasonable doubt that

the mental abnormality and/or personality disorder makes Mr. Black likely to engage in

predatory acts of sexual violence if not confined to a secure facility?" /