f 1 Pursuant to the sexually violent predators act (SVPA), chapter 71.09 RCW, the trial court ordered the involuntary commitment of petitioner Michael Halgren after a unanimous jury found beyond a reasonable doubt that Halgren was a sexually violent predator (SVP). Halgren appealed the commitment to Division One of the Court of Appeals, which affirmed the trial court in all respects. We accepted review of three issues addressed by Division One and hold that the trial court did not err in admitting Dr. Robert Wheeler’s testimony or in declining to give Halgren’s proposed unanimity instruction to the jury. Furthermore, because Halgren has not provided a record that the trial court actually ordered him to submit to a CR 35 mental examination, we decline to review whether such an order would have been erroneous. Accordingly, we affirm the Court of Appeals.
¶2 Halgren was convicted of rape in 1989 and unlawful imprisonment in 1995. In the days before his release from prison, the State filed an SVP petition pursuant to RCW 71-.09.030. The trial court found probable cause to believe that Halgren was an SVP and ordered him placed in custody pending a jury trial. In February 2002, a unanimous jury found that Halgren was an SVP beyond a reasonable doubt, and the trial court ordered that Halgren be committed.
¶3 Prior to trial, the State requested that Halgren submit to a mental examination by its psychological expert, Dr. Wheeler. Halgren initially agreed to submit to an examination to be conducted at the special commitment center (SCC) on August 29, 2001. Unfortunately, Dr. Wheeler required a medical procedure in mid-August and was unable to travel to the SCC for the scheduled examination. As a result, the State requested the examination be moved to Dr. Wheeler’s office. The change in location would have required that the State transport Halgren in shackles and under guard. Halgren refused to submit to the change of location and refused to reschedule the examination because of the proximity of trial, which was originally set for November 2001.
¶4 The State responded with a motion to compel an examination pursuant to CR 35. Halgren filed a brief in opposition to the CR 35 motion, arguing that the State failed to show “good cause” and that it was unduly burdensome and prejudicial for armed Department of Corrections personnel to transport him in shackles to the examination. In so arguing, Halgren cited favorably to the Court of Appeals opinion in In re Detention of Williams, 106 Wn. App. 85, 22 P.3d 283 (2001), rev’d, 147 Wn.2d 476, 55 P.3d 597 (2002), in which Division One held that there is nothing in the SVPA preventing additional discovery beyond that provided for in the statute. Id. at 95. The record provided by Halgren on appeal reveals no indication as to how the trial
¶5 At trial, Dr. Wheeler testified regarding his reliance on the results of Halgren’s penile plethysmograph (PPG) examination under ER 703.1 Dr. Wheeler first referred to the PPG examination results, obtained by another mental health evaluator during Halgren’s prior incarceration and treatment, in support of his conclusion that Halgren was a sexual deviant. Dr. Wheeler went on to opine that the combination of Halgren’s sexual deviancy and psychopathy made him more likely than not to reoffend. Halgren objected to the PPG examination testimony in a motion in limine and during trial on the grounds that it was prohibited by Frye,2 ER 702, and ER 403. The trial court overruled Halgren’s objections.
¶6 Dr. Wheeler also testified that Halgren suffered from at least one mental abnormality (paraphilia not otherwise specified (n.o.s.) nonconsent) and one personality disorder (antisocial personality disorder).3 At the close of trial, Halgren requested a jury instruction that would have required unanimous agreement as to the specific mental abnormality or personality disorder necessary for involuntary commitment under RCW 71.09.020(16), which defines
To establish that the Respondent Michael A. Halgren is a sexually violent predator, the State must prove each of the following elements beyond a reasonable doubt:
(1) That the Respondent has been convicted of a crime of sexual violence;
(2) That the Respondent currently suffers from a mental abnormality and/or a personality disorder making it difficult, if not impossible, for him to control his behavior; and
(3) That this mental abnormality and/or personality disorder make the Respondent likely to engage in predatory acts of sexual violence if not confined to a secure facility.
If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict that the Respondent is a sexually violent predator.
Clerk’s Papers at 395 (Instruction 6).
¶7 A unanimous jury found that Halgren was an SVP, and the trial court ordered Halgren committed. On October 10, 2002, while Halgren’s appeal was pending, this court reversed Division One’s Williams decision and held that chapter 71.09 RCW precludes the use of CR 35 and is the exclusive means for obtaining mental examinations in SVP proceedings. Williams, 147 Wn.2d at 491.
¶8 On appeal, Halgren relied on our Williams decision and assigned error to the alleged order of the trial court requiring him to submit to the CR 35 examination. Halgren argued that the trial court had no authority to order a CR 35 examination in September 2001 (over a year before our Williams opinion was published) because our interpretation of chapter 71.09 RCW is presumed to take effect from the
ISSUES
¶9 1. Should this court review the propriety of the CR 35 examination when Halgren has provided no record that the trial court actually ordered him to submit to the examination?
¶10 2. Did the trial court err in admitting Dr. Wheeler’s testimony concerning the results of Halgren’s PPG examination in discussing deviancy and recidivism?
¶11 3. Did the trial court err in declining to instruct the jury that it must be unanimous as to whether Halgren suffered from a “mental abnormality” or a “personality disorder” in order to find that Halgren was an SVP?
ANALYSIS
¶12 Standard of Review. Halgren contends that the trial court erred in ordering the CR 35 examination; in admitting Dr. Wheeler’s opinion regarding the PPG examination evidence under Frye, ER 702, and ER 403; and in declining to give the proposed unanimity jury instruction. This court reviews discovery rulings, the admissibility of expert opinion under ER 702, and the trial court’s balancing of probative value against prejudicial effect under ER 403 for an abuse of discretion. State v. Brown, 132 Wn.2d 529, 626, 940 P.2d 546 (1997) (discovery rulings); Philippides v. Bernard, 151 Wn.2d 376, 393, 88 P3d 939 (2004) (ER 702); State v. Vreen, 143 Wn.2d 923, 932, 26 P.3d 236 (2001) (ER 403). We review the admissibility of scientific evidence under
¶13 The CR 35 Examination. In Williams, we held that chapter 71.09 RCW provides the exclusive means for obtaining mental examinations in SVP proceedings and precludes the use of CR 35. 147 Wn.2d at 491. In light of Williams, Halgren argues that the trial court committed reversible error when it ordered the CR 35 examination. Halgren relies on the following rule:
It is a fundamental rule of statutory construction that once a statute has been construed by the highest court of the state, that construction operates as if it were originally written into it. In other words, there is no “retroactive” effect of the court’s construction of a statute; rather, once the court has determined the meaning, that is what the statute has meant since its enactment.
Johnson v. Morris, 87 Wn.2d 922, 927-28, 557 P.2d 1299 (1976) (citations omitted); accord State v. Roggenkamp, 153 Wn.2d 614, 629, 106 P.3d 196 (2005).
f 14 Applying the Johnson rule to the Williams decision, Halgren argues that the trial court never had the authority to order the CR 35 examination and the results were therefore inadmissible. In response to Halgren’s reliance on Williams, the State argues that (1) the CR 35 issue is not properly before this court; (2) the holding in Williams does not relate back to the date the SVPA was enacted; and (3) even if Williams does relate back, it was harmless error for the trial court to admit the results of the CR 35 examination. We agree that had the trial court ordered Halgren to submit to a CR 35 examination, such an order would have been erroneous in light of our holding in Williams; however, Halgren has failed to meet his burden on appeal because he has failed to establish that the trial court actually ordered him to submit to a CR 35 examination.
¶[16 We decline to review the merits of Halgren’s CR 35 claim because Halgren has failed to satisfy his burden of providing an adequate appellate record. A party seeking appellate review is required to “serve on all other parties and file with the trial court clerk and the appellate court clerk a designation of those clerk’s papers and exhibits the party wants the trial court clerk to transmit to the appellate court.” RAP 9.6(a). The clerk’s papers “shall include, at a minimum . . . any written order or ruling not attached to the notice of appeal, of which a party seeks review.” RAP 9.6(b)(1)(C) (emphasis added). Thus, courts faced with inadequate appellate records have declined to review the issues not adequately covered in those records. For example, in City of Spokane v. Neff, 152 Wn.2d 85, 93 P.3d 158 (2004) , the city sought review of the trial court’s exclusion of evidence of prior prostitution related behavior under ER 404(b) as improper propensity evidence. Id. at 91. Finding “nothing in the record to establish the basis upon which the trial court ruled,” the Neff court held that the city failed to meet its “burden of providing the record of the evidentiary hearing” and affirmed the evidentiary ruling. Id.; see also State v. Tracy, 128 Wn. App. 388, 394-95, 115 P.3d 381 (2005) (When an appellant fails to meet the burden of providing an adequate record, “the trial court’s decision stands.”) (citing Story v. Shelter Bay Co., 52 Wn. App. 334, 345, 760 P.2d 368 (1988)), review granted, 156 Wn.2d 1030
¶17 The dissent argues RAP 9.10 compels this court to review Halgren’s CR 35 claim on the merits or allow him to supplement the record because “Halgren cannot be said not to have acted in good faith.” Dissent at 816. We disagree. Halgren has made no effort, let alone a good faith effort, to provide the materials required by RAP 9.2(b) and RAP 9.6(b)(1)(C). Halgren did not include the CR 35 order of the trial court, if one exists, anywhere in the appellate record. Furthermore, Halgren has not moved to supplement the record pursuant to RAP 9.9 or RAP 9.10 or explain why there is no record of the CR 35 order. This court is unwilling to assign error to an order of a trial judge based on sheer speculation. Therefore, we hold that Halgren has failed to satisfy his burden on appeal regarding the CR 35 examination and decline to review whether such an order, if made, would constitute reversible error. Accordingly, we do not reach the State’s remaining arguments relating to the CR 35 examination.
|18 The PPG Examination Testimony. At trial, Dr. Wheeler testified that Halgren was a sexual deviant. In support of his opinion, Dr. Wheeler cited actuarial tests, interviews conducted by him and another psychologist, Dr. Stuart Brown, who treated Halgren while incarcerated, and the results of a PPG examination administered by Dr. Brown during Halgren’s treatment. Dr. Wheeler testified that Halgren’s deviancy was illustrated in part by a PPG examination that showed that Halgren was twice as aroused by depictions of violent rape than by depictions of adults engaged in consensual sexual behavior. The PPG examination results were not formally admitted as evidence but were discussed by Dr. Wheeler under the limited scope of ER 703. Halgren objected to Dr. Wheeler’s references to the PPG examination results under Frye, ER 702, and ER 403. The trial court overruled the objections and Division One affirmed.
¶20 The State argues, and Division One agreed, that Dr. Wheeler appropriately referenced the PPG examination results as one component among many in diagnosing Halgren as a sexual deviant (exhibiting paraphilia n.o.s. nonconsent). In State v. Riles, 135 Wn.2d 326, 957 P.2d 655 (1998), this court concluded that “ [p] lethysmograph testing is regarded as an effective method for diagnosing and treating sex offenders.” Id. at 343-44 (emphasis added) (footnote omitted). The Riles court cited extensively to psychiatric journals and cases from other jurisdictions in support of this conclusion. Id. at 343-44 nn.57-59. Nevertheless, Halgren maintains that Dr. Wheeler used the PPG examination results to assess his risk of reoffending and such a use of the PPG examination is novel and not generally accepted.
¶21 This is a case in which a Frye examination was unnecessary. Halgren is correct that the PPG examination has not been accepted as, by itself, a predictor of recidivism. Dr. Wheeler acknowledged as much when he testified that there was only “limited evidence that phallometric, penile plethysmograph, assessments predict recidivism.” Tr. of Proceedings (Feb. 14, 2002) at 39. Nonetheless, the State is correct that Dr. Wheeler merely used the PPG examination as part of his diagnostic process. While it is true that Dr. Wheeler ultimately concluded that Halgren’s deviancy combined with his psychopathy make
¶22 Halgren also objected to discussion of the PPG examination under ER 702 and ER 403. The trial court considered and rejected these objections, finding that the PPG examination testimony could be helpful to the jury under ER 702 by assisting the jurors in understanding Dr. Wheeler’s sexual deviancy diagnosis. The trial court also concluded that ER 403 did not preclude the use of the PPG examination testimony because any potential prejudice to Halgren was outweighed by the relevance of the evidence and because Halgren had an opportunity to attack the weight of this evidence through cross-examination. Halgren offers no reason to believe that these rulings were “ ‘manifestly unreasonable or based on untenable grounds or untenable reasons.’ ” In re Marriage of Muhammad, 153 Wn.2d 795, 803, 108 P.3d 779 (2005) (quoting In re Marriage of Littlefield, 133 Wn.2d 39, 46-47, 940 P.2d 1362 (1997)). Rather, Halgren’s challenge centers on the reliability of the PPG examination. Because the issue of reliability goes to “the weight of the evidence rather than to its admissibility,” In re Detention of Thorell, 149 Wn.2d 724, 755-56, 72 P.3d 708 (2003), the trial court did not abuse its discretion in allowing discussion of Halgren’s PPG examination.
¶23 The Proposed Unanimity Instruction. Halgren contends that the trial court erroneously rejected his proposed unanimity jury instruction. The proposed instruction would have required the jury to reach a unanimous agreement as to whether Halgren suffered from a mental abnormality or a personality disorder.
¶24 While SVP involuntary commitment proceedings are civil in nature, this court has held that a defendant in such proceedings is entitled to due process protections that
¶25 Halgren maintains that a Petrich instruction was necessary in his case because “[t]he unanimity requirement in the [SVP] statute means the jury must unanimously agree as to whether the person being committed had a mental abnormality or personality disorder, at a minimum.” Appellant’s Opening Br. at 11. This argument relies on an analogy between cases involving multiple criminal acts supporting a single charge, as in Petrich, and SVP cases involving multiple mental illness diagnoses.
¶26 In response to Halgren’s reliance on Petrich, the State offers two alternative arguments. First, the State suggests that the unanimity rules articulated in Petrich are inapplicable because the SVPA is a civil rather than criminal statute. The State notes that unlike criminal prosecutions, it is not tasked with proving the defendant engaged in a particular act to establish the defendant has a mental illness under the SVP definition. Rather, the State argues that it must prove only that the defendant has a mental illness described in RCW 71.09.020(16) as a “mental abnormality or personality disorder.” Thus, because the SVP
¶27 The State’s contention that the criminal law unanimity cases are inapplicable is unpersuasive. While differences exist in terms of proving underlying acts versus the defendant’s mental status, in both criminal and SVP cases the jury is asked to find the existence of some fact as a component of placing the defendant in confinement. Moreover, in both cases the jury is operating under a constitutionally prescribed unanimity requirement. Given that the ultimate due process concern is in ensuring that the jury unanimously agrees on the basis for confinement, we hold that unanimity rules are applicable in SVP cases.
¶28 Second, the State argues that even if unanimity requirements apply, in the present case we should apply the alternative means analysis articulated in State v. Arndt, 87 Wn.2d 374, 553 P.2d 1328 (1976). The State reasons that SVP cases are far more analogous to the alternative means cases such as Arndt than the multiple acts scenario in Petrich because “mental abnormality” and “personality disorder” are alternative means of establishing the broader proposition that the defendant is an SVP.
¶29 Alternative means statutes identify a single crime and provide more than one means of committing the crime. Id. at 376-77. In Arndt, this court first clearly adopted the rule that when there is a single offense committable in more than one way, “it is unnecessary to a guilty verdict that there be more than unanimity concerning guilt as to the single crime charged . . . regardless of unanimity as to the means by which the crime is committed provided there is substantial evidence to support each of the means charged.” Id. at 377.
¶30 Legislative intent determines whether this court should analyze a statute under the alternative means framework. Id. at 378. In Arndt and State v. Berlin, 133 Wn.2d 541, 947 P.2d 700 (1997), we determined legislative
¶31 The factors considered in Arndt and Berlin dictate that “mental abnormality” and “personality disorder” are alternative means for making the SVP determination. As in Berlin, in this case, a single statutory provision, RCW 71-.09.020(16), contains both bases for determining whether a person is an SVP. In addition, because the result to be accomplished whether one has a mental abnormality or a personality disorder is the same, commitment as an SVP, and because both mental illnesses are predicates for the SVP determination, the two mental illnesses are closely connected. See Arndt, 87 Wn.2d at 382. Also, as Dr. Wheeler opined, these two means of establishing that a person is an SVP may operate independently or may work in conjunction. Thus, 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.
¶33 Applying the Arndt alternative means test, we hold that there is substantial evidence to support the jury’s finding that Halgren was an SVP beyond a reasonable doubt. The substantial evidence test is satisfied if this court is convinced that “a rational trier of fact could have found each means of committing the crime proved beyond a reasonable doubt.” State v. Kitchen, 110 Wn.2d 403, 410-11, 756 P.2d 105 (1988). In reviewing a record for substantial evidence, this court will not second-guess the credibility determinations of the jury. E.g., State v. Jeannotte, 133 Wn.2d 847, 853, 947 P.2d 1192 (1997).
¶34 The evidence presented by the State was sufficient for a reasonable jury to conclude that Halgren had both a mental abnormality and a personality disorder beyond a reasonable doubt. The jury heard extensive testimony from Dr. Wheeler regarding his belief that Halgren had the mental abnormality known as paraphilia n.o.s. nonconsent. Specifically, Dr. Wheeler described the results of actuarial tests, hours of interviews conducted over the course of more than a decade, and the results of the PPG examination. Halgren’s former psychologist, Dr. Brown, also testified for the State regarding Halgren’s PPG examination, paraphilia, and prior psychological condition. Moreover, the jury had evidence of Halgren’s prior criminal history, including a previous rape conviction and his admission of involvement in approximately 20 sexual assault incidents. In addition, based on Halgren’s behavior, testing, and interviews, Dr. Wheeler testified that Halgren had an antisocial personality disorder. While Halgren’s expert provided testimony contrary to that of Dr. Wheeler’s, the jury
CONCLUSION
¶35 We decline to review the merits of Halgren’s challenge to the CR 35 examination because Halgren has failed to satisfy his burden of providing this court with a record of the trial court’s alleged CR 35 order. After reviewing the merits of Halgren’s other assignments of error, we hold that the trial court correctly declined to conduct a Frye hearing because it is not novel for PPG examinations to be used for diagnostic purposes. In addition, we hold that Halgren has failed to demonstrate that the trial court abused its discretion in overruling Halgren’s ER 702 and ER 403 objections to the PPG examination testimony. Finally, we hold that the trial court did not violate Halgren’s right to a unanimous jury verdict because, under the alternative means test, there was substantial evidence that Halgren had both a “mental abnormality” and a “personality disorder.” Accordingly, we affirm the Court of Appeals.
Alexander, C.J., and C. Johnson, Madsen, Bridge, Chambers, Fairhurst, and J.M. Johnson, JJ., concur.
1.
A PPG exam is a test that “measures sexual arousal by means of an electronic recording device attached to the penis of the person being tested. The recording device monitors the subject’s responses to the viewing of slides of naked women and children of various ages involved in various types of sexual activity.” In re Marriage of Parker, 91 Wn. App. 219, 222, 957 P.2d 256 (1998).
2.
Under Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), expert testimony is admissible only if it is generally accepted in the relevant scientific community. Frye was implicitly adopted by this court for the first time in State v. Woo, 84 Wn.2d 472, 527 P.2d 271 (1974).
3.
Dr. Wheeler described “paraphilia” as the “definitional word for a type of sexual deviance which involves repetitive, intense sexual urges, fantasies, or behaviors involving children, objects, or nonconsenting persons.” Tr. of Proceedings (Feb. 13, 2002) at 55. He further described Halgren’s “antisocial personality disorder” as “a pervasive pattern of disregard for and violation of the rights of others occurring since age 15 years.” Id. at 76.
4.
The SVPA has since been amended to explicitly require a unanimous verdict. RCW 71.09.060(1).