In Re The Detention Of: Franklin Abellera.

)

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Detention of No. 77812-9-1

DIVISION ONE

FRANKLIN DAVID ABELLERA

UNPUBLISHED OPINION

FILED: August 12, 2019

CHUN, J. — In 1980 and 1981, Franklin Abellera committed numerous sex

offenses against multiple women. In 1981, he pleaded guilty to rape in the

second degree, indecent liberties with forcible compulsion, assault in the second

degree, and burglary in the first degree. He then spent seven years at an

inpatient sex offender treatment program. After his release, in 2009, he

committed another sex offense, resulting in a 2010 guilty plea to rape in the third

degree and assault in the second degree.

Given Abellera's history, the State sought to have him committed as a

sexually violent predator (SVP). The matter proceeded to trial, where the State's

expert witness estimated that Abellera had committed 31 to 35 rapes and

attempted rapes. The expert opined that Abellera would not be able to control

his urge to force a woman into nonconsensual sex if presented with the

opportunity. The defense's expert testified that Abellera did not have a mental

No. 77812-9-1/2

abnormality and that the facts of the 2009 offense suggested an "opportunistic

crime" as opposed to Abellera lacking control.

A jury found Abellera to be an SVP, and the trial court ordered him civilly

committed. On appeal, Abellera raises a number of evidentiary issues and

challenges the sufficiency of the State's evidence to prove that he is an SVP.

For the reasons discussed herein, we affirm.

I.

BACKGROUND

In 1981, the State charged Abellera with 10 sex offenses committed

against six different women. Abellera pleaded guilty to burglary in the first

degree, indecent liberties with forcible compulsion, assault in the second degree,

and rape in the second degree. The trial court suspended Abellera's sentence

on the condition that he complete an inpatient sex offender treatment program at

Western State Hospital. In 1989, program staff recommended that the court

determine Abellera successfully completed the program and release him.

In April 1990, after his discharge from the program, Abellera began a job

at a bakery. During this time, Abellera engaged in behavior that increased the

risk of reoffending—such as consuming pornography, drinking alcohol, and hiring

prostitutes.

In 2009, Abellera drove to a high prostitution area to hire a prostitute.

A woman, K.W., approached Abellera and asked him for a ride. Once K.W. was

in the car, Abellera drove to a dead-end street and raped her.

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On May 27, 2010, Abellera pleaded guilty to rape in the third degree and

assault in the second degree. The court sentenced Abellera to five years'

imprisonment.

On September 11, 2014, while Abellera was serving his sentence, the

State filed a Petition for Commitment as a Sexually Violent Predator.

Abellera's SPV trial began in 2017. The State presented an expert,

Dr. Dale Ray Arnold, who diagnosed Abellera with "other specified paraphilic

disorder" and antisocial and avoidant personality traits that exacerbated his

disorder. Dr. Arnold summarized the details of six sexual assaults Abellera

committed in the 1980s and estimated that, in total, Abellera had committed 31 to

35 rapes and attempted rapes. In Dr. Arnold's opinion, Abellera had a mental

abnormality such that he would not be able to control his urge to force a woman

into nonconsensual sex if presented with the opportunity in the future.

Abellera presented an expert, Dr. Joseph Plaud, who testified that

Dr. Arnold's diagnosis was "made up." Dr. Plaud additionally stated that Abellera

believed K.W. was a prostitute at the time of the assault. Dr. Plaud opined that

the 2009 offense differed so significantly from the 1980s offenses that it did not

demonstrate a mental abnormality or lack of volitional control.

The jury reached a verdict finding Abellera to be an SVP. The trial court

issued an Order of Commitment.

Abellera appeals.

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No. 77812-9-1/4

II.

ANALYSIS

A. Due Process

Abellera argues the trial court violated his due process right to present

evidence in his defense by prohibiting certain testimony by Dr. Plaud and by

preventing a Community Corrections Officer(CCO)from testifying. The State

contends the trial court exercised sound discretion in excluding the evidence

under ER 401, ER 402, and ER 403. We agree with the State as to the

testimony of both Dr. Plaud and the CCO.

1. Dr. Plaud's Testimony

Abellera claims the trial court violated his right to due process by

preventing Dr. Plaud from stating facts that supported his opinion that Abellera

believed K.W. was a prostitute.1 The State asserts that Abellera waived the

issue and that his claim fails on the merits. We agree with the State.

At trial, the State moved to prevent Abellera from trying to impeach K.W.'s

account of the rape through expert testimony. In response, defense counsel

stated, "I don't know that that's anyone's intent to impeach this woman or attack

her credibility, but there are certainly some facts in the case that I think probably

everybody agrees are the facts that are relevant and do need to come out." The

court ruled that Abellera could not argue that he did not rape and assault K.W.,

1 In his Opening Brief, Abellera stated that he wanted the trial court to admit the following

facts: He believed that he had picked up a prostitute (K.W.) and was engaging in sex acts.

Abellera then forced her out of the car because he thought her pimp had followed them. Abellera

also "believed there was a video that showed [K.W.] removing her underwear before getting into

his car."

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but reserved ruling on whether he could raise other inconsistencies and impeach

through expert testimony.

The State then argued that, because Dr. Plaud had accepted the "official

version"2 of the facts, the court should not allow him to testify that the rape did

not occur. Abellera said that while Dr. Plaud would testify that the factual

circumstances of the 2009 offense do not suggest Abellera had a mental

abnormality, "he's not going to speculate and offer any extra version because he

wasn't there." The court ruled that Dr. Plaud could not challenge K.W.'s report of

the assault because it constituted speculation:

As it relates to the defense expert, I am going to grant the

State's motion. I am not going to let the defense expert essentially

impugn the credibility of K.W. because I think that's pure speculation

on his part. I don't think it's relevant under 401 and 402. And under

403, I think there's little to no probative value that would be

outweighed by prejudice to the State.

With that said, if there are parts of this -- that incident, the

2009 incident, that the expert felt was important because it was

different than the prior incidents, and that factored into his opinions,

I think he should be allowed to do that.

But I'm not going to -- for example, he is not going to be

allowed to say, you know, K.W. reported this, but that just doesn't

make sense. I don't think that's appropriate. That's speculation. It

is not relevant.

2 The official version of the facts refers to those facts that Abellera admitted to in

the

Statement of Defendant on Plea of Guilty to Felony Sex Offense:

On 09/13/2009 in King County, WA I engaged in sexual intercourse w/ K.W. who

I was not married to and she did not consent to sexual intercourse with me and

her lack of consent was clearly expressed by her (K.W.'s) words and conduct.

I did this by digitally penetrating her vagina despite her telling me to "stop."

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a. Waiver

The State argues that Abellera waived any challenge to the court limiting

Dr. Plaud's testimony because he stated at trial that no evidence supported K.W.

being a prostitute and that whether she was a prostitute was irrelevant. Abellera

claims that when he made those statements, he was merely trying to clarify that

he would not attempt to impeach K.W. through Dr. Plaud. We determine

Abellera waived the issue.

Abellera stated multiple times at trial that he would not elicit facts as to

whether K.W. was a prostitute. Specifically, counsel told the court that the

defense lacked evidence that K.W. was a prostitute and the issue was irrelevant:

We have no intent of eliciting testimony that this woman was a

prostitute. There's no -- we have no evidence that she was a

prostitute.

It's not really relevant to the issue of whether or not our client

committed offense against her and whether or not being a prostitute

makes our client more or less likely to be a sexually violent predator,

because, really, that's the only issue here. And so we're not

intending to infer one way or another that that is actually true with

respect to this woman.

But I do think that . . . number one is the case can't be

sanitized. It is what it is. The facts, to a large extent, are what they

are, even based on K.W.'s account.

Additionally, when discussing whether Dr. Plaud based his opinion on the

"official version" of the assault or Abellera's account, defense counsel again said

that the issue of whether K.W. was a prostitute was irrelevant:

We anticipate based on our expert's deposition that he is going to

come in and, at the end of the day, admit that, yeah, I mean, we have

to go by, to a large extent, the official facts. And no matter what, it

wouldn't have changed his opinion. So we're not trying to get in

information of whether she was a prostitute or not.

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No. 77812-9-1/7

But that's really all I had to say about the prostitution issue. We don't

intend to infer anything about this woman because it's not relevant

to whether or not Mr. Abellera has a mental abnormality, and it's

really not relevant to his risk or things that this jury really has to

consider. So I think, to a large extent, we're all in agreement on that

issue.

The defense's briefing was also consistent with its position that it did not intend to

elicit facts that K.W. was a prostitute.

"A party may not remain silent as to a claimed error during trial and raise

its objection for the first time on appeal." State v. Teuber, 109 Wn. App. 640,

644, 36 P.3d 1089 (2001)(citing State v. Guloy, 104 Wn.2d 412, 421, 705 P.2d

1182 (1985)).

Based on the record, Abellera never raised the issue, on due process

grounds or otherwise, that the trial court should allow Dr. Plaud to testify to the

facts that supported Abellera's belief that K.W. was a prostitute. Indeed, he

expressly stated that he had no evidence that K.W. was a prostitute and that the

issue was irrelevant. Abellera does not argue in his briefing that the alleged error

in limiting the testimony constitutes a manifest injustice or satisfies any of the

other criteria under RAP 2.5, such that we should allow him to raise the error for

the first time on appeal. Accordingly, we conclude Abellera waived any objection

to the trial court's ruling limiting Dr. Plaud's testimony.

b. Relevance

Assuming no waiver, Abellera's argument still fails on the merits. He

contends that the trial court violated his right to due process when it limited

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No. 77812-9-1/8

Dr. Plaud's testimony. The State argues the court properly limited Dr. Plaud's

testimony based on lack of relevance. Because the trial court did not manifestly

abuse its discretion in limiting Dr. Plaud's testimony on relevance grounds, we

determine the trial court properly excluded it.

We review a trial court's ruling on the admissibility of evidence for a

manifest abuse of discretion. State v. Johnson, 185 Wn. App. 655, 670, 342

P.3d 338 (2015). We will overturn the trial court's determination on relevance

only if no reasonable person would adopt the same view as the court. Johnson,

185 Wn. App. at 670-71.

A court may admit only relevant evidence. ER 402. Under ER 401,

evidence is relevant if it has "any tendency to make the existence of any fact that

is of consequence to the determination of the action more probable or less

probable than it would be without the evidence." A trial court's exclusion of

irrelevant evidence does not violate a defendant's right to due process. In re Det.

of Turav, 139 Wn.2d 379, 403-04, 986 P.2d 790 (1999).

Here, Dr. Plaud stated in his deposition that he was "assuming for the

purposes of risk evaluation that[AbeHera raped K.W.]" and that he did not base

his evaluation on Abellera's version of the events. Because Dr. Plaud based his

assessment on the "official version" of the facts, any facts to the contrary were

irrelevant. On appeal, Abellera argues the court prevented him from seeking to

admit facts to support his belief that K.W. was a prostitute, but the particular facts

suggested a rape did not occur and contradicted the "official version" of the facts.

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No. 77812-9-1/9

These were therefore irrelevant. We conclude that the trial court did not err by

excluding the facts under ER 401 and ER 402.

2. CCO Testimony

Abellera next claims the trial court erred by preventing a CCO, who is an

employee of the Department of Corrections (DOC),from testifying that the area

where Abellera picked up K.W. was a high prostitution area. The State contends

the court correctly barred the testimony on relevance and hearsay grounds. We

determine the court did not abuse its discretion by excluding the testimony.

At trial, the State moved to preclude CCO Conaty, whom the DOC had

designated as a CR 30(b)(6) witness, from testifying as to the high rate of

prostitution in the area where Abellera picked up K.W. The State claimed that

ER 401, ER 402, and ER 403 barred the evidence. It additionally argued

testimony was hearsay, because the CCO obtained the information from the Des

Moines Police Department.

Abellera argued the evidence was relevant for two reasons. First, he

contended that it went to his state of mind because it made his belief that K.W.

was a prostitute more reasonable. Second, he said that, because the DOC

would not allow Abellera to go to high prostitution areas once released, it showed

a reduced future risk of committing the same crime. Additionally, Abellera

argued that CCO Conaty's testimony was not hearsay because it constituted an

admission of a party opponent under ER 801(d)(2).

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No. 77812-9-1/10

The trial court ruled the testimony was not relevant to show Abellera's

state of mind because the defense did not show "some bridge between what

Mr. Abellera thought and then [sic] DOC's statement." For the purpose of

showing that the DOC's supervision would not let Abellera go to high prostitution

areas, the court decided that even if the testimony was relevant, ER 403

precluded it because unfair prejudice and confusion outweighed the minimal

probative value. The court further ruled that the statement was inadmissible

hearsay because the State of Washington, not the DOC, was the party opponent.

a. Relevance

In an SVP trial, "evidence is relevant only if it increases or decreases the

likelihood that a fact exists that is consequential to the jury's determination

whether the respondent is a sexually violent predator." In re Detention of West,

171 Wn.2d 383, 397, 256 P.3d 302(2011). Juries consider three elements when

determining whether a respondent constitutes an SVP:

(1)that the respondent has been convicted of or charged with a crime

of sexual violence, (2) that the respondent suffers from a mental

abnormality or personality disorder, and (3) that such abnormality or

disorder makes the person likely to engage in predatory acts of

sexual violence if not confined in a secure facility.

West, 171 Wn.2d at 397 (internal quotations and citations omitted).

At trial, Abellera argued that his belief that K.W. was a prostitute showed

he sought consensual sex and therefore indicated he did not have a mental

abnormality of obtaining arousal through nonconsensual sex. But as the trial

court noted, while whether Abellera believed K.W. was a prostitute may be

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No. 77812-9-1/11

relevant, the defense did not show a connection between the DOC considering

the location as being a high prostitution area and Abellera's state of mind.

Accordingly, the evidence was not relevant for this purpose. We conclude the

trial court did not abuse its discretion in determining that the CCO Conaty's

testimony was not relevant to show Abellera's state of mind.

b. ER 403

As to CCO Conaty's testimony that the DOC would prevent Abellera from

returning to where he picked up K.W., the trial court ruled that ER 403 barred it.

Under ER 403, relevant "evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading the jury, or by considerations of undue delay, waste of time,

or needless presentation of cumulative evidence." Again, we review a trial

court's ruling on the admissibility of evidence for a manifest abuse of discretion.

Johnson, 185 Wn. App. at 670.

The court did not abuse its discretion by determining that the prejudicial

impact of the evidence and the risk of confusing the jury outweighed the

probative value of the evidence. Because the issue at trial was whether Abellera

had a mental abnormality that makes him likely to reoffend, whether he could

return to a single high prostitution area when released was only minimally

relevant. That the defense put on other testimony that the DOC would monitor

Abellera with an ankle bracelet and not permit him to go to areas of high

prostitution further decreased the probative value of the evidence. Moreover,

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No. 77812-9-1/12

admitting the testimony risked confusing the jury by potentially suggesting that

issues for them to decide at the trial included the terms of Abellera's DOC

supervision, whether the area was known for high prostitution, and whether K.W.

was a prostitute. Accordingly, the trial court did not err by refusing to allow CCO

Conaty's testimony.3

B. Prejudicial Evidence

Abellera contends the trial court erred by admitting several pieces of

evidence that it should have excluded as unfairly prejudicial under ER 403. The

State argues the court properly admitted the evidence. We address each

argument in turn.

We review a trial court's ruling on the admissibility of evidence for a

manifest abuse of discretion. Johnson, 185 Wn. App. at 670. We will overturn

the trial court's determination on relevance or prejudice only if no reasonable

person would adopt the same view as the court. Johnson, 185 Wn. App. at 670-

71.

Again, under ER 403, relevant "evidence may be excluded if its probative

value is substantially outweighed by the danger of unfair prejudice, confusion of

the issues, or misleading the jury, or by considerations of undue delay, waste of

time, or needless presentation of cumulative evidence."

3 The trial court ruled alternatively that CCO Conaty's testimony constituted inadmissible

hearsay. The parties' briefing focuses on this issue. But because this was an alternative ground

for the court's decision to exclude the testimony, and we affirm the court's decisions under

ER 401, ER 402, and ER 403, we do not address the hearsay issue. Notably, however, Abellera

does not cite any legal authority to support his contention that because the State of Washington is

a party, all its agencies qualify as party opponents for the purposes of ER 801(d)(2).

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1. Victim Testimony

Abellera claims the trial court erred by admitting victim testimony

regarding his conviction for criminal trespass. The State contends that case law

clearly allows such evidence in SVP trials. We agree with the State.

Here, the victim in the criminal trespass matter, S.M., testified at his SVP

trial. She stated that she was asleep at her friend's apartment when Abellera

entered the place without permission. Abellera approached her, put his head

about four inches away from hers, and told her to be quiet. S.M. screamed and

Abellera ran off. The police apprehended Abellera approximately 15 to 30

minutes later. Dr. Arnold testified that the crime was sexually motivated.

Our Supreme Court has held that the testimony of a victim of a sexually

motivated offense is relevant in an SVP proceeding. Turav, 139 Wn.2d at 401.

Even though victim testimony often has a substantial impact on the jury, ER 403

does not necessarily exclude it because "[i]n assessing whether an individual is a

sexually violent predator, prior sexual history is highly probative of [their]

propensity for future violence." In re Pers. Restraint of Young, 122 Wn.2d 1, 53,

857 P.2d 989 (1993). Victim testimony is admissible "not solely to prove the

element of prior conviction, but rather to assess the mental state of the alleged

SVP, the nature of [their] sexual deviancy, and the likelihood that [they] will

commit a crime involving sexual violence in the future." Turav, 139 Wn.2d at

401.

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No. 77812-9-1/14

Because the State presented testimony that the crime was sexually

motivated, the details of Abellera's criminal trespass were probative of whether

he would commit a future sexual offense. See Young, 122 Wn.2d at 53. We

determine the trial court did not manifestly abuse its discretion by admitting the

testimony.

2. Precursor Treatment

Abellera next argues that the trial court erred by admitting testimony

relating to his participation in precursor treatment,4 because it was irrelevant and

prejudicial. The State claims that the trial court properly admitted the evidence

because it was relevant to Abellera's risk of reoffending.5 We conclude the trial

court did not manifestly abuse its discretion by admitting the evidence.

At trial, the State sought to elicit testimony that Abellera had started

precursor treatment shortly before trial. Abellera argued the court should exclude

the evidence as irrelevant. The court ruled that the evidence was relevant and

admissible under ER 403. It determined that "[Abellera's] decision to only

engage in this precursor treatment and the timing of it. . . is relevant to the

issues of his status and being treated or not treated, and whether he's likely to

re-offend."

4 Precursor treatment refers to a course offered at the Special Commitment Center(SCC)

as a prerequisite to sex offender treatment, which aims to prepare participants for such treatment.

5 The State also claims that Abellera waived this issue because below he only objected to

the admission of evidence regarding "[his]'non-participation in sex offender treatment at the

[Special Commitment Center].- However, the record shows Abellera argued that his "start[ing]

down the road to treatment on the eve of trial" was not relevant. Accordingly, he did not waive

this issue.

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No. 77812-9-1/15

Dr. Arnold then testified that though Abellera could have immediately

enrolled in precursor treatment when he first entered the Special Commitment

Center(SCC) in 2014, he instead waited to do so until shortly before trial. He

said Abellera being at the SCC for over three years before attempting to start

treatment was "a big red flag because he's really wasted a lot of time that he

could have been spending making sure that he's safer when he's released to the

community or reduces his risk to re-offend." The State also admitted a progress

note from his precursor treatment that said he displayed treatment-inhibiting

behavior..

"[W]hen offered for the purpose of showing the respondent has a mental

abnormality or a personality disorder, evidence of the SCC's treatment programs,

confinement conditions, and transitional facilities is irrelevant and inadmissible,

unless the testimony relates the respondent's treatment history." West, 171

Wn.2d at 398. Evidence regarding a respondent's past treatment is relevant to

show that the respondent may be less likely or less willing to control their mental

abnormality if living freely in the community—which relates to the likelihood of

reoffending. West, 171 Wn.2d at 397. "[T]he State is free to offer evidence of

the treatment a sexual offender should get and to compare that with the

treatment the respondent has actually received." West, 171 Wn.2d at 398.

In this case, the State used the precursor treatment evidence for two

purposes. First, it argued that Abel!era's risk of reoffending was higher because

he had gone three years without receiving any treatment. Second, the State

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No. 77812-9-1/16

contended the timing of Abellera starting treatment, namely shortly before trial,

suggested that he may be disingenuously pursuing the treatment. Accordingly,

the evidence was admitted for the proper purpose of addressing whether

Abellera would reoffend.6 Given the probative value of the evidence, the trial

court did not manifestly abuse its discretion by admitting it.

3. Static-99R

Abellera next contends that the court admitted impermissible profile

testimony by Dr. Arnold when he stated that the Static-99R underestimates

recidivism. He asserts that while such actuarial assessments are admissible,

Dr. Arnold's testimony constituted unduly prejudicial testimony because he "drew

a direct line between the Static-99's underestimation of risk due to undetected

offending, and the fact that Mr. Abellera committed undetected offenses." The

State claims the trial court properly admitted the testimony under ER 403. We

determine the trial court did not manifestly abuse its discretion by admitting the

evidence.

A Static-99R constitutes "a collection of ten variables that have been

shown through research to be related to sexual offense recidivism." It operates

6 Abellera also relies on In re Det. of Post, 170 Wn.2d 302, 241 P.3d 1234 (2010), to

argue that the trial court should not have admitted evidence that he had begun precursor

treatment. But in that case, the Court limited its review to "the admissibility of evidence about the

content of SCC programs in which Post had not yet participated and the admissibility of evidence

that Post could later be released to a less restrictive alternative if he were committed." 170

Wn.2d at 310. The Supreme Court noted that "[i]nsofar as the State's argument pertains to SCC

treatment already undergone by Post, that question is not before us and we assume, as the Court

of Appeals held, that such evidence is relevant and otherwise admissible." Post, 170 Wn.2d at

313. Thus, because Post did not address the admissibility of evidence regarding a respondent's

past treatment, the case is inapposite.

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No. 77812-9-1/17

as an "actuarial risk assessment tool for assessing risk in sex offenders." Both

experts used the Static-99R to predict Abellera's risk of reoffending if not

confined at the SCC.

At trial, Dr. Arnold explained that because the Static-99R measures group

rates of re-offense, it was not necessarily predictive of Abellera's risk of re-

offending. He stated that the Static-99R might underestimate Abellera's risk of

re-offending because it does not take undetected sexual offenses into account.

Dr. Arnold explained that about two thirds of Abellera's crimes were undetected.

Generally, "profile testimony that does nothing more than identify a person

as a member of a group more likely to commit the charged crime is inadmissible

owing to its relative lack of probative value compared to the danger of its unfair

prejudice." State v. Braham, 67 Wn. App. 930, 936, 841 P.2d 785 (1992). Our

Supreme Court, however, has held that "actuarial assessments, which satisfy the

requirements of ER 403, ER 702, and ER 703 are admissible and not profile

evidence." In re Det. of Thorell, 149 Wn.2d 724, 758, 72 P.3d 708 (2003).

Unlike Abellera claims, Dr. Arnold 's testimony that the Static-99R

underestimates the rate of recidivism due to undetected crimes did not profile

him as an SVP because of his undetected crimes, but rather went to the issue of

whether Abellera would reoffend in the future. Though testimony regarding the

future dangerousness of SVPs is prejudicial, "[t]he probative value of this

testimony is high and directly relevant to whether an individual should be

committed as a sexually violent predator." Thorell, 149 Wn.2d at 758. Based on

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No. 77812-9-1/18

the high probative value of such evidence, the Supreme Court has "already

rejected challenges to predictions of dangerousness under ER 403." Thorell, 149

Wn.2d at 758. Thus, under the case law, the testimony regarding how accurately

the Static 99-R predicted Abellera's risk of reoffending had probative value that

outweighed any prejudicial impact. We conclude that the trial court did not

manifestly abuse its discretion by admitting the testimony.

4. Use of SVP Criteria for Selection of "High Risk" Norms

For purposes of the Static-99R, both experts agreed that Abellera scored

an 8. The next step for the experts was to compare how a score of 8 "rates in

comparison to other sex offenders in terms of percentile," and then link that score

to recidivism rates. To conduct this comparison, the experts placed Abellera into

one of two groups: the routine group or the high risk group. The experts

disagreed as to the group in which to place Abellera.

Over Abellera's objection, Dr. Arnold testified that he placed Abellera in

the high risk group, in part, because of "[t]he context of the referral." Dr. Arnold

stated that Abellera's referral for an SVP evaluation came from the End of

Sentence Review Committee, which only recommends a "very small subset of

individuals." Dr. Arnold later explained that the Committee recommends less

than five percent of sexual offenders for civil commitment.

Abellera argues that the court should have excluded this testimony as

unduly prejudicial because it conveyed to the jury that the State believed Abellera

"is one of the 5% of most dangerous sex offenders in the state." The State

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No. 77812-9-1/19

claims the court properly allowed Dr. Arnold to testify as to why he placed

Abellera in the high risk group, especially given that the defense's expert had

placed him in the routine group. Though this issue presents a closer question,

we determine the court properly admitted the testimony.

Here, the testimony related to Dr. Arnold's assessment of Abellera's future

risk. Additionally, this testimony carried heightened probative value because

Dr. Plaud disagreed that Abellera was in the high risk group. Because experts

use the Static-99R to estimate future risk for all sexual offenders, the referral

showed that Abellera may fall into the high risk group. Though the testimony

prejudiced Abellera, it was not unduly so because the State did not use it to

argue that this conclusively meant that he was an SVP. Instead, it used the

evidence to explain Dr. Arnold's assessment. Dr. Arnold additionally testified that

he placed Abellera in the high risk group based on his score on the structured

risk assessment-forensic version (SRA-FV).7 The trial court did not manifestly

abuse its discretion by admitting the testimony.

The State additionally contends that, assuming the court erred by

admitting the testimony, the error was harmless because the testimony was brief,

limited in scope, and not unduly prejudicial when considering the entirety of the

record. Indeed, the jury heard testimony that Dr. Arnold believed Abellera was of

a small percentage of rapists who suffered from a paraphilic disorder, and that is

7 The SRA-FV is an "abstract framework for psychological factors liable to predispose

offenders to repeated sexual offending." David Thornton & Raymond A. Knight, Construction and

Validation of SRA-FV Need Assessment, 27 SEXUAL ABUSE 360, 361 (2015).

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No. 77812-9-1/20

why he diagnosed Abellera as an SVP. Dr. Arnold additionally testified, without

objection, that Abellera had committed approximately 31 to 35 rapes and

attempted rapes. Abellera admitted to raping six women in the 1980s and K.W.

in 2009. Given this testimony, the jury could have already inferred that Abellera

belonged to a small subset of rapists that the State considered to be especially

dangerous. See West, 171 Wn.2d at 410-11 (evidentiary error prejudices

defendant if, within reasonable probabilities, it materially affects outcome of trial).

Furthermore, jury instruction number 4 provided:

When Dr. Arnold and Dr. Plaud testified, 1 informed you that some

information was admitted as part of the basis for [Dr. Arnold's and

Dr. Plaud's] opinions, but may not be considered for other purposes.

You must not consider this testimony as proof that the information

relied upon by the witness is true. You may use this testimony only

for the purpose of deciding what credibility or weight to give the

witness's opinion.

(Emphasis added.) Jurors are presumed to follow the court's instructions. State

v. Kalebaugh, 183 Wn.2d 578, 586, 355 P.3d 253(2015). We thus presume that

the jury did not consider the testimony as proof that Abellera was an SVP, but

rather considered it as a basis for Dr. Arnold's assessment. Accordingly, any

error in admitting the testimony was harmless.

5. Conduct Other Than Sexual Offending

Abellera claims ER 403 prevented the court from admitting portions of his

deposition relating to his past misconduct as an employee. The State asserts

that the evidence was relevant because it went to Dr. Arnold's diagnosis of

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No. 77812-9-1/21

Abellera having antisocial and avoidant personality traits. We determine the

court did not manifestly abuse its discretion by admitting the evidence.

In pretrial motions, Abellera moved to exclude portions of his deposition

where the State inquired into write-ups he received while working at the bakery.

He contended that whether he was a good employee was not relevant to the

issue of whether he constitutes an SVP. The court admitted the work history.

At trial, the State cross-examined Abellera on his work history.

Specifically, the State asked about write-ups he received from his employer for

threatening a coworker by saying he would "kick his ass," for shoving a coworker

and using a racial slur, for "slugg[ing]" a coworker in the shoulder, for shoving a

coworker, and for using abusive language towards a coworker. These incidents

occurred in 1995, 1996, 2000, 2002, and 2009. The court additionally admitted

the write-ups as exhibits.

The main issue at trial was whether Abellera was an SVP, i.e., whether he

had a mental abnormality that prevented him from controlling his actions.

Dr. Arnold testified that Abellera had an "other specified paraphilic disorder"

involving interest in nonconsensual sex and antisocial and avoidant personality

traits that exacerbated his paraphilic disorder. Dr. Arnold connected Abellera's

misconduct at work to his antisocial and avoidant personality traits by stating that

the traits are manifested by the "failure to conform to social norms with respect to

lawful behaviors." Dr. Arnold further explained that Abellera's attempt to

minimize his issues at work despite more than 20 instances of misconduct on his

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No. 77812-9-1/22

records showed deceitfulness—an antisocial trait. Thus, Abellera's work history

was relevant as to whether he would reoffend, because it related to whether he

had personality traits that exacerbated his diagnosed paraphilic disorder. We

determine that the trial court did not abuse its discretion by admitting the

evidence.

C. Rebuttal Testimony

Abellera claims the trial court improperly allowed the State to present

rebuttal testimony because he did not raise any new issues during the

presentation of his defense. The State contends the court's decision was within

its sound discretion. We agree with the State.

After Dr. Plaud testified, the State asked to call Dr. Arnold to give rebuttal

testimony. Abellera objected, asserting that because Dr. Plaud's testimony was

consistent with the opinions he gave in his deposition, his defense did not raise

new matters that would enable the State to present rebuttal testimony. The State

argued that the court should allow its expert to address the topics discussed by

Dr. Plaud. Although the State admitted that it approached some of these topics

with its expert during its case in chief, it stated it did not fully explore them

because it did not know precisely how Dr. Plaud would testify when giving his

opinions.

The court allowed the rebuttal testimony. It stated that to the extent the

State strategically chose to not introduce evidence that the respondent decided

to present, it was well within the State's rights to respond.

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No. 77812-9-1/23

In his rebuttal testimony, Dr. Arnold responded to Dr. Plaud's claim that

his diagnosis was "made-up" by testifying to the psychological community's

consensus regarding the existence of his diagnosis. Dr. Arnold then explained

why he diagnosed Abellera with a paraphilic disorder despite such disorders

being difficult to diagnosis. He also testified about Dr. Plaud's critiques of the

SRA-FV. Dr. Arnold additionally addressed statements Abellera had made to

Dr. Plaud about his mother and Dr. Plaud's opinions that(1) anger motivated

Abellera's crimes,(2) Abellera's good behavior at the SCC suggested he would

not reoffend, and (3) a professional organization for experts on sex offenders did

things that Dr. Plaud did not approve of.

"[T]he question of admissibility of evidence on rebuttal rests largely on the

trial court's discretion, and error in denying or allowing it can be predicated only

upon a manifest abuse of that discretion." State v. White, 74 Wn.2d 386, 395,

444 P.2d 661 (1968).

Courts may admit rebuttal evidence to enable a plaintiff to respond to a

new matter raised by the defense. White, 74 Wn.2d at 394. Though rebuttal

evidence should not be simply a recitation of evidence in chief, "[f]requently true

rebuttal evidence will, in some degree, overlap or coalesce with the evidence in

chief." White, 74 Wn.2d at 395.

Here, the court acted within its discretion when ruling to allow the rebuttal

evidence. Though Dr. Arnold's rebuttal testimony did overlap somewhat with his

testimony during the State's case in chief, his testimony was largely in reply to

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No. 77812-9-1/24

new matters raised during Dr. Plaud's testimony.8 Though the State had touched

on some of topics during Dr. Arnold's original testimony, on rebuttal it addressed

them in a manner that directly responded to Dr. Plaud's testimony. This was not

...

an instance where the rebuttal testimony was "simply a reiteration of evidence in

chief" or where the State intentionally withheld evidence merely to present the

evidence cumulatively at the end of the respondent's case. White, 74 Wn.2d at

394. We determine trial court did not manifestly abuse its discretion by

permitting the rebuttal testimony.

D. Argument Regarding Burden of Proof

Abellera argues that the court erred by not allowing him to argue a

presumption of non-commitment in his closing argument. He contends such a

presumption exists because the presumption of innocence is closely related to

the State's burden to prove a crime beyond a reasonable doubt, and the State

must similarly prove that a respondent is an SVP beyond a reasonable doubt.

But we have already rejected this argument. In In re Det. of Twining, we rejected

a jury instruction on a presumption of non-committal because SVP trials are not

criminal cases. 77 Wn. App. 882, 895, 894 P.2d 1331 (1995) overruled on other

grounds, In re Det. of Pouncv, 168 Wn.2d 382, 229 P.3d 678 (2010). Because

SVP trials are not criminal in nature, "criminal constitutional protections are not

applicable beyond those supplied in the statute and those granted in Young."

8 Abellera argues that Dr. Plaud did not raise new matters because Dr. Plaud had

previously discussed these issues during his deposition. But Abellera cites no legal authority to

support this proposition. We reject this argument.

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No. 77812-9-1/25

Twining, 77 Wn. App. at 895 (citing RCW 71.09.060; Young, 122 Wn.2d at 47-

51). Because no presumption of non-committal exists in SVP trials, it does not

matter, as Abellera contends, that Twining addressed jury instructions while

below he sought to discuss the presumption in closing argument. Accordingly,

Abellera was not entitled to argue a presumption of non-commitment in his

closing argument. We decide that the trial court did not err by refusing to allow

him to do 50.9

E. Sufficiency of the Evidence

Finally, Abellera asserts that the State did not present sufficient evidence

to prove that he had a mental abnormality that resulted in a lack of volitional

control. The State claims Dr. Arnold's testimony alone sufficiently established

this element. We agree with the State.

As discussed above, the State must prove three elements beyond a

reasonable doubt for a jury to find a respondent constitutes an SVP:

(1)that the respondent has been convicted of or charged with a crime

of sexual violence, (2) that the respondent suffers from a mental

abnormality or personality disorder, and (3) that such abnormality or

disorder 'makes the person likely to engage in predatory acts of

sexual violence if not confined in a secure facility.

West, 171 Wn.2d at 397 (internal quotations and citations omitted).

"In a sufficiency challenge, the evidence is viewed in the light most

favorable to the State, and all reasonable inferences from the evidence must be

9 Abellera also argues that this court should reverse his conviction under a cumulative

error analysis. However, because we determine that the trial court did not err, or that any error

was harmless, we reject this argument. See State v. Emery, 174 Wn.2d 741, 766, 278 P.3d 653

(2012)(one error); State v. Stevens, 58 Wn. App. 478, 498, 794 P.2d 38(1990)(no prejudicial

error).

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No. 77812-9-1/26

drawn in favor of the State and interpreted most strongly against the respondent."

In re Det. of Audett, 158 Wn.2d 712, 727, 147 P.3d 982(2006)(internal citation

omitted). Courts will uphold a commitment "if any rational trier of fact could have

found the essential elements beyond a reasonable doubt." Audett, 158 Wn.2d at

727-28.

Abellera argues that the State lacked sufficient evidence to meet only the

third element—i.e., that he had a mental abnormality or personality disorder

making him likely to engage in predatory acts of sexual violence if not confined in

a secure facility. Though evidence that the respondent has a mental abnormality

is insufficient to prove a serious lack of control, "a diagnosis 'when coupled with

evidence of prior sexually violent behavior and testimony from mental health

experts, which links these to a serious lack of control, is sufficient for a jury to find

that the person presents a serious risk of future sexual violence and

therefore meets the requirements." Audett, 158 Wn.2d at 728 (quoting Thorell,

149 Wn.2d at 761-62).

Here, the State claims Dr. Arnold's testimony was sufficient to establish

the third element beyond a reasonable doubt. At trial, Dr. Arnold testified that he

had diagnosed Abellera with "other specified paraphilic disorder" involving

interest in nonconsensual sex and antisocial and avoidant personality traits that

exacerbated his paraphilic disorder. Additionally, when viewing the facts in the

light most favorable to the State, it presented extensive evidence demonstrating

that Abellera could not control his urge to force women into nonconsensual sex.

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No. 77812-9-1/27

Dr. Arnold approximated that Abellera had committed between 31 and 35 rapes

and attempted rapes. Furthermore, Abellera committed rape in 2009 despite

seven years of sex offender treatment and 20 years in the community without a

convicted sex offense. Though Abellera argues these 20 years in the community

show his ability to control himself, the jury could also have viewed this as

evidence, as Dr. Arnold opined, of a "stark example of how chronic this kind of

deviant sexual interest can be."

To further demonstrate Abellera's inability to exhibit control, Dr. Arnold

pointed to Abellera being unable to stop sexually assaulting women even though

he felt remorseful for doing so. Additionally, he stated that based on statements

Abellera had made that "rape is the very worst thing" you can do in society,

Abellera continued to commit the assaults even though it violated his own moral

code. Dr. Arnold opined that Abellera could not control his urge to commit sexual

assault if presented with the opportunity. Given this record and viewing the

evidence in the light most favorable to the State, we conclude sufficient evidence

exists to establish the third element.

Affirmed.

WE CONCUR:

404-ivi

27