Opinion
No. 29679-9-II.
Filed: May 25, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No: 02-2-08925-4. Judgment or order under review. Date filed: 10/25/2002. Judge signing: Hon. Katherine M Stolz.
Counsel for Appellant(s), Nancy Emmet Horgan, Attorney at Law, PO Box 60637, Pasadena, CA 91106.
Counsel for Respondent(s), Sarah Sappington, Office of The Atty General, 900 4th Ave Ste 2000, Seattle, WA 98164-1076.
Dale Evan Roush appeals his civil commitment under chapter 71.09 RCW, arguing that the trial court erred by (1) not requiring the State to prove that he committed a recent overt act, even though he was incarcerated when the State filed its petition; (2) permitting Roush's sister to testify that he had sexually assaulted her more than 25 years ago; and (3) failing to instruct the jury that antisocial personality disorder alone is insufficient to satisfy the requirements of Kansas v. Crane. Roush also argues that there was insufficient evidence (1) to prove beyond a reasonable doubt that he had `serious difficulty' controlling his behavior as required by Crane; and (2) to support the jury's finding that he was more likely than not to reoffend.
534 U.S. 407, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002).
The law is well-settled that the State need not prove a recent overt act when it files a sexually violent predator petition against a person incarcerated for a sexually violent offense. Finding no error, we affirm.
FACTS I. Sexually Violent History
Dale Evan Roush has a long history of sexual violence, spanning from childhood through adulthood, during which he has been both victim and assailant. We focus here on the incidents that involved conviction and incarceration.
In 1978, then-23-year-old Roush tried to rape a 16-year-old hitchhiker after threatening him with a pellet gun. Roush pleaded guilty to first degree assault, for which the court sentenced him to a maximum term of 20 years. He was paroled about five years later in May 1983.
Ten months later, in March 1984, Roush assaulted another hitchhiker, threatening him with a knife, tying him up, trying to perform oral sex on him, and trying unsuccessfully to rape him anally. The State charged Roush with assault, unlawful imprisonment, and robbery. A jury convicted Roush on the robbery charge, and the court sentenced him to the maximum term of 20 years. Roush was paroled four years later in October 1988.
Eight months later, in June 1989, Roush raped 18-year-old co-worker, S.C. Roush put a knife to S.C.'s throat, handcuffed him, became aroused at the thought of beating him, performed oral sex on him, forced S.C. to do the same to Roush, and anally raped S.C. Roush was convicted of first degree rape, and the court sentenced him to 10 years and 6 months in prison.
II. Commitment as a Sexually Violent Predator
In 2002, while Roush was in prison, the State filed a civil commitment petition under chapter 71.09 RCW. At the hearing, the trial court permitted Roush's younger sister to testify, over objection, that Roush had sexually assaulted her several times a week beginning when she was about five years old and not ceasing until her early teens when Roush went to jail. She never reported these assaults. Roush maintains that his sexual orientation is strictly homosexual and that he has been in `intimate and affectionate sexual relationships.' Report of Proceedings (RP) Vol. II at 402-03.
Experts for the State and for Roush testified at the commitment hearing. The State's expert, Dr. Amy Phenix, diagnosed Roush with `paraphilia not otherwise specified' and anti-social personality disorder. She concluded, based on actuarial tables and her own observations, that Roush was more likely than not to reoffend. Roush's expert testified that Roush was not a paraphiliac and that the likelihood of Roush reoffending was less than the actuarial instruments predicted.
Dr. Phenix testified that `paraphilia' is `recurrent, intense sexually arousing fantasies, sexual urges or behaviors generally involving nonhuman objects, the suffering [or] humiliation of oneself or one's partner, or sex with children or nonconsenting persons.' RP Vol. I at 83. The `not otherwise specified' classification is used when there is not a specific category that describes the behavior, such as pedophilia. RP Vol. I at 84.
The jury found that Roush was a sexually violent predator under RCW 71.09.060. The trial court ordered that Roush be placed in the custody of the Department of Social and Health Services and held at the Special Commitment Center in Steilacoom until such time that he could prove his condition had changed so that he could be released. Roush appeals this commitment order.
ANALYSIS I. Recent Overt Act
Chapter 71.09 RCW, which addresses mental illness and sexually violent predators, authorizes the State to petition the court to determine whether a person convicted of a sexually violent act and is about to be released from confinement is a `sexually violent predator' (SVP). RCW 71.09.030. If a jury unanimously finds that the person is a SVP, he is committed to the custody of the Department of Social and Health Services for placement in a secure facility. RCW 71.09.060(1).
RCW 71.09.060(1) provides that `[i]f, on the date that the petition is filed, the person was living in the community after release from custody, the state must also prove beyond a reasonable doubt that the person had committed a recent overt act.' There is no corresponding requirement for proof of a recent overt act where the person is incarcerated when the State files the petition.
RCW 71.09.020(10) defines `recent overt act' as any act or threat that has either caused harm of a sexually violent nature or creates a reasonable apprehension of such harm in the mind of an objective person who knows of the history and mental condition of the person engaging in the act.
Roush concedes that he was in custody when the State filed the commitment petition that is the subject of this appeal. But he argues that recent Washington State Supreme Court case law and the unique facts of his case require the State to show that he committed a recent overt act as a predicate to civil commitment. Specifically, he argues that (1) because his sexual orientation is strictly homosexual and his victims were adult males, he had the opportunity to reoffend while incarcerated; and (2) his refraining from reoffending while incarcerated was equivalent to being out on community supervision such that the State should have to show that he committed a recent overt act as precondition to his commitment. We disagree.
Roush cites in In re the Personal Restraint of Young, in which our Supreme Court considered broad challenges to the constitutionality of chapter 71.09 RCW. 122 Wn.2d 1, 10-11, 857 P.2d 989 (1993). In Young, the Court reasoned that requiring the State to prove an incarcerated offender committed a recent overt act as a predicate to civil commitment `would create a standard which would be impossible to meet,' implying that incarceration prevents the individual from committing any such acts. 122 Wn.2d at 41. The Court held that `where the individual is currently incarcerated no evidence of a recent overt act is required.' Young, 122 Wn.2d at 41.
The Young rationale comports with the Legislature's finding that `during confinement these offenders do not have access to potential victims and therefore they will not engage in an overt act during confinement as required by the involuntary treatment act for continued confinement.' RCW 71.09.010. Consistent with these findings, the Legislature codified Young in 1995 and added the requirement that the State prove a recent overt act if at the time it files a petition, the offender has been released into the community.
The Legislature distinguished only between incarcerated offenders and offenders released from custody into the community. The Legislature did not, as Roush urges us to do now, further distinguish between those incarcerated offenders with the opportunity to reoffend and those whose sexuality or victim predisposition potentially precludes reoffense during incarceration. RCW 71.09.060(1).
To support his argument that we should nonetheless distinguish between these latter groups of individuals, Roush cites In re Detention of Henrickson, 140 Wn.2d 686, 2 P.3d 473 (2000), and In re the Detention of Albrecht, 147 Wn.2d 1, 51 P.3d 73 (2002). Neither case supports Roush's argument. In Henrickson, our Supreme Court concluded:
Periods of temporary release after arrest and prior to extensive confinement do not modify [RCW 71.09.030]'s unambiguous directive that the State need not prove a recent overt act when the subject of a sexually violent predator petition is incarcerated on the day the petition is filed.
140 Wn.2d at 693 (emphasis added). The Court held:
[W]hen, at the time the petition is filed, an individual is incarcerated for a sexually violent offense, or for an act that itself would have constituted a recent overt act, due process does not require the State to prove a further overt act occurred between arrest and release from incarceration.
140 Wn.2d at 697 (emphasis added). No Washington statute or case law suggests that a foregone opportunity to reoffend while incarcerated, based on the sex or age of the offender's usual victims, might trigger the recent-overt-act requirement before the State could file a sexually violent predator petition. And we will not read such a requirement into the statute here.
Roush repeatedly claims that his sexual orientation is exclusively homosexual and thus he had the opportunity to reoffend while incarcerated, urging this court to require the State to show a recent overt act. As the trial court recognized in denying Roush's motion to require the State to prove a recent overt act:
This court does not distinguish or differentiate the violent rape of a woman and the violent rape of a man. Both are acts of rape. Both are acts of violence. And the fact that he may not have acted out while he was in prison, I'm certain that one could argue that there are a host of other modifying factors that would inhibit behavior in the penitentiary setting. RP Vol. I at 19.
In Albrecht, our Supreme Court distinguished Albrecht's case from Henrickson, noting that unlike the Henrickson petitioners, Albrecht was released after completing his incarceration; his case was not pending appeal or sentencing. Albrecht, 147 Wn.2d at 9 n. 10. The Albrecht majority held that when an offender has completed his incarceration, has been released into the community, but is then subsequently incarcerated for an act that would not qualify as a recent overt act, the State needed to prove that the offender had committed a recent overt act to show that he was currently dangerous. 147 Wn.2d at 10-11.
Such is not the case here. Unlike Albrecht, Roush had not completed his incarceration and had not been released into the community before the State filed the commitment petition; thus, the due process concerns raised in Albrecht are not implicated here.
Applying the plain language of RCW 71.09.060(1) and the Henrickson rationale, we hold that the State was not required to prove that Roush committed a recent overt act in order to secure his civil commitment.
II. Prior Sexual Assaults
Roush next argues that the trial court erred in allowing his sister to testify about his sexual assaults of her 25 years earlier. `Generally, admissibility of evidence is in the trial court's discretion and its rulings on admissibility of evidence are reviewed under the abuse of discretion standard.' Washburn v. Beatt Equip. Co., 120 Wn.2d 246, 264, 840 P.2d 860 (1992). We find no abuse of discretion here.
Roush first argues that the prejudicial value of his sister's testimony outweighed its probative value and, therefore, should have been excluded under ER 403. In Young, our Supreme Court upheld the trial court's decision to admit testimony from Young's rape victims and ruled that:
Although we agree that the testimony presented by the victims was compelling, and, therefore, had a substantial effect on the jury, we do not believe that its prejudicial effect outweighed its probative value. In assessing whether an individual is a sexually violent predator, prior sexual history is highly probative of his or her propensity for future violence.
122 Wn.2d at 53 (emphases added). Similarly, in In re Detention of Turay, the court permitted several of Turay's rape victims to testify, citing Young. 139 Wn.2d 379, 401, 986 P.2d 790 (1999). In both cases, the witnesses were victims of adjudicated crimes.
Roush's argument that his sister's testimony is less probative than Young's or Turay's victims, because his sister's claims were not adjudicated, is unpersuasive. In all three cases, the testimony was probative to `assess the mental state of the alleged SVP, the nature of his or her sexual deviancy, and the likelihood that he or she will commit a crime involving sexual violence in the future.' Turay, 139 Wn.2d at 401. That the witnesses in Young and Turay were victims of adjudicated crimes goes to the weight of their testimonies, not the admissibility. Considering Young's conclusion that this type of evidence is `highly probative,' we hold that the trial court here did not abuse its discretion by permitting Roush's sister to testify about his sexual assaults.
Roush further argues that because his sister never reported the abuse and there was no independent evidence of the assault, her testimony is inherently and circumstantially unreliable. Roush's argument again concerns the weight that the jury would accord her testimony, not its admissibility. The issue of whether his sister's testimony is reliable or credible was a jury question.
Finally, Roush argues that his sister's testimony was not `particularly relevant,' in part because of the remoteness of the alleged acts during their childhood. ER 401 defines `relevant evidence' as `evidence having 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.' (Emphasis added.) The Young court ruled that under RCW 71.09.020(1), `[a] person's history of sexually violent offenses is relevant to the sex predator determination.' 122 Wn.2d at 53-54.
We reject Roush's argument that this evidence was not relevant because he was convicted of raping only post-adolescent males. The State was not trying to prove that Roush assaulted post-adolescent males; it was trying to prove that Roush had a long history of committing sexual assaults. His sister's testimony tended to `make the existence of this fact . . . more probable' by showing prior sexually predatory acts; thus, it was relevant under ER 401.
We hold that the trial court did not abuse its discretion by permitting Roush's sister to testify that Roush had repeatedly sexually assaulted her during their youth.
III. Mental Abnormality or Personality Disorder
Roush next argues that there was insufficient evidence to satisfy the Kansas v. Crane requirement that he suffers from a mental abnormality or personality disorder that results in serious difficulty controlling his behavior. Roush claims that the State did not show that he lacked the volitional control over his acts necessary to comport with Crane, and he challenges the model the State's expert used to diagnose Roush as a paraphiliac not otherwise specified. We address the latter argument first.
A. Dr. Phenix's Diagnosis
Roush faults Dr. Phenix for using a `barebones' or `cookbook' approach to diagnosing him with paraphilia not otherwise specified (NOS) based on the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision (DSMR-IV-TR), and for failing to follow the diagnostic model used by his expert, Dr. Donaldson. But Roush cannot and does not show that the DSMR-IV-TR model has been discredited or is no longer used by psychology experts. Dr. Phenix testified that she thought `almost all mental health professionals in [the psychiatric] field' use the DSMR-IV-TR, and that it is the `standard classification manual that we use in providing psychiatric diagnoses to patients.' RP Vol. II at 181. Moreover, Roush concedes that, despite its alleged infirmities, Dr. Phenix's diagnosis `arguably satisfies current psychological thought.' Br. of Appellant at 26.
Roush's expert, Dr. Donaldson, testified that the DSMR-IV-TR does not have a rape diagnosis. But this is not completely accurate. As noted above, the DSMR-IV-TR defines paraphilia as `recurrent, intense sexually arousing fantasies, sexual urges or behaviors generally involving nonhuman objects, the suffering [or] humiliation of oneself or one's partner, or sex with children or nonconsenting persons.' RP Vol. I at 83 (emphasis added). We do not see how this definition of paraphilia, concerning nonconsensual sex, would not include the definition of paraphilia NOS manifesting itself as rape. In our view, the DSMR-IV-TR paradigm was an appropriate tool for Dr. Phenix's diagnosis that Roush suffers from paraphilia NOS.
Roush argues that even though Dr. Phenix's methodology satisfied current psychological thought, we should adopt the model for diagnosing paraphilia NOS advanced by Dr. Gene Abel. Dr. Abel's model describes a four-stage cycle: (1) urge to commit the act, (2) attempt to control the urges, (3) surrender to the urge, and (4) mixed feelings of relief and guilt. Using this model, Dr. Donaldson would not have diagnosed Roush as a paraphiliac NOS.
Dr. Donaldson determined that as early as 1972, doctors diagnosing Roush noted that he had no remorse for his actions (no guilt as required by Dr. Abel's model's fourth prong); no compulsion to rape (first prong) or inhibition against the behavior (attempt to control the urge in second prong). Accordingly, Roush would not fit the Abel model for paraphilia.
Roush notes that this is the model cited in Young. But the Young Court was not deciding between these two competing theories for diagnosing paraphilia NOS. And Dr. Phenix testified that although Dr. Abel's four-part test was proposed as part of the DSMR, those elements are no longer part of the paraphilia NOS disorder, noting that `[t]hese kind of things may drop out of the definition, from particularly a mental disorder, when it's no longer pertinent.' RP Vol. II at 184. Despite Roush's expert's preference for the Abel model, Roush has not shown that the State failed to prove that he suffered from paraphilia NOS.
B. `Serious Difficulty' Controlling Behavior 1. Kansas v. Hendricks and Kansas v. Crane
In Kansas v. Crane, 534 U.S. 407, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002), the United States Supreme Court sought to clarify its earlier ruling in Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997). In both cases, the Court construed Kansas's Sexually Violent Predator Act (the `Act').
In Hendricks, the Court held that the Act's definition of mental abnormality satisfied substantive due process requirements for civil commitment. Hendricks, 521 U.S. at 360. In Crane, the Court distinguished between sexually violent offenders subject to civil commitment and `typical recidivists' properly dealt with in criminal proceedings, stating that the sexually violent offender had a `special and serious lack of ability to control behavior' that distinguished the former offender from the latter. 534 U.S. at 412-13. The Court concluded:
[W]e did not give to the phrase `lack of control' a particularly narrow or technical meaning. And we recognize that in cases where lack of control is at issue, `inability to control behavior' will not be demonstrable with mathematical precision. It is enough to say that there must be proof of serious difficulty in controlling behavior. And this, when viewed in light of such features of the case as the nature of the psychiatric diagnosis, and the severity of the mental abnormality itself, must be sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case.
534 U.S. at 413 (emphasis added).
Thus, in order for the State to satisfy its burden for civil commitment, it must prove that the respondent has a mental abnormality or personality disorder that causes the respondent's serious difficulty in controlling his behavior.
2. In re the Detention of Thorell
Our Supreme Court addressed the lack-of-control issue under Hendricks and Crane in In re the Detention of Thorell, 149 Wn.2d 724, 72 P.3d 708 (2003). In Thorell, the Court addressed whether the State had proven that each of six petitioners in the consolidated appeal had sufficient lack of control. The Court concluded that `a lack of control determination may be included in the finding of mental abnormality.' Thorell, 149 Wn.2d at 736. It stated:
What is critical to both Hendricks and Crane is the existence of `some proof' that the diagnosed mental abnormality has an impact on offenders' ability to control their behavior. Crane requires linking an SVP's serious difficulty in controlling behavior to a mental abnormality, which together with a history of sexually predatory behavior, gives rise to a finding of future dangerousness, justifies civil commitment, and sufficiently distinguishes the SVP from the dangerous but typical criminal recidivist. It is the finding of this link, rather than an independent determination, that establishes the serious lack of control and thus meets the constitutional requirements for SVP commitment under Hendricks and Crane.
Thorell, 149 Wn.2d at 736. The Court further instructed appellate courts to analyze this showing using a `case specific approach.' Thorell, 149 Wn.2d at 736.
Thorell applied the criminal standard for sufficiency of the evidence in SVP hearings. Thorell, 149 Wn.2d at 744. `[W]hen 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 fact to conclude the person facing commitment has serious difficulty controlling behavior.' Thorell, 149 Wn.2d at 744-45. Accordingly, a diagnosis of a mental abnormality or personality disorder is not, in itself, sufficient evidence for a jury to find a serious lack of control. Such a diagnosis, however, 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 of an SVP. Thorell, 149 Wn.2d at 761-62.
3. Roush's serious difficulty in controlling his behavior
The State asked Dr. Phenix whether Roush's paraphilia affected his volitional capacity. Dr. Phenix responded:
Yes. I think it's more than evident, if we even just look at this pattern of offending, that we can see that he has at times very little volitional control over his behavior.
Remembering what I talked about in terms of his offending patterns, that there is a peak average of re-offend for individuals who break of three years, and a peak after eight months after — it depends on who's being released from a prison term. There's a lot of time to think about these kinds of things. We see the offending happening very quickly again as compared to other people. This would indicate problems with volition. This is someone who had a voice in the past and understanding, after the age 15 his voice and understanding, that he knows that this behavior is wrong. He knows he gets in trouble for it. He knows he has to talk to the police. And he knows and has admitted in the past that there are serious repercussions for his behavior. And despite all that has been unable to stop this kind of behavior on each past release into the community.
So those would all really point to problems, serious problems with controlling his deviant sexual behavior.
RP Vol. I at 106-07 (emphases added).
Dr. Phenix also cited Roush's own statements that (1) he was relieved to be in prison because it would curb his deviant behavior; and (2) he wanted to `break the cycle,' demonstrating his recognition that he has been unable to control his behavior in the past absent some external control like prison. Dr. Phenix further noted Roush's inability to control himself based on his assault of S.C.: `[T]here's this compulsive kind of behavior occurring that he was unable to stop himself from [committing the assault] at that time.' RP Vol. I at 124.
Reviewing this evidence in the light most favorable to the State, we find sufficient evidence under the Thorell standard to link Roush's mental abnormality (paraphilia NOS) to his `serious lack of control.'
IV. Jury Instruction
Citing Crane, Roush contends that the trial court should have instructed the jury that proof of anti-social personality disorder is insufficient to prove mental abnormality or personality disorder as required by RCW 71.09.020(16).
As we explained previously, Crane underscored the importance of distinguishing between `dangerous sexual offender[s] subject to civil commitment `from other dangerous persons who are perhaps more properly dealt with exclusively through criminal proceedings.'' 534 U.S. at 412 (quoting Hendricks, 521 U.S. at 360). The Court noted that 40 to 60 percent of the male prison population suffers from anti-social personality disorder. 534 U.S. at 412.
Roush reads this to mean that anti-social personality disorder cannot be the mental abnormality or personality disorder underlying a civil commitment petition. Roush misapprehends the Crane Court's statements. The Court does not say that anti-social personality disorder alone is insufficient to satisfy the requirements of Kansas' SVP Act, which is similar to Washington's SVP statute codified at chapter 71.09 RCW. Rather, the Court holds that the offender's anti-social personality disorder must also result in a `special and serious lack of ability to control behavior' to distinguish adequately the dangerous sex offender from a common recidivist. Crane, 534 U.S. at 412-13. Roush acknowledges that the Crane Court noted anti-social personality disorder statistics, `suggesting that civil commitment requires more than proof of this disorder.' Br. of Appellant at 20.
Neither Crane nor Roush's argument compel the conclusion Roush urges here that the trial court erred in failing to instruct the jury that antisocial personality disorder alone cannot be the basis for civil commitment. Moreover, even if the trial court had erroneously failed to instruct the jury that anti-social personality disorder alone cannot be the predicate mental abnormality or personality disorder, any error would be harmless because, as Roush notes in his brief, Dr. Phenix also diagnosed Roush with paraphilia NOS.
V. Future Predatory Acts of Sexual Violence
When reviewing a challenge to the sufficiency of evidence, we apply a standard of review that is deferential to the jury's verdict, drawing all reasonable inferences from the evidence in favor of the State and interpreting the evidence most strongly against the defendant. State v. Joy, 121 Wn.2d 333, 339, 851 P.2d 654 (1993). A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom. State v. Barrington, 52 Wn. App. 478, 484, 761 P.2d 632 (1988), review denied, 111 Wn.2d 1033 (1989). We defer to the jury on the credibility of witnesses and the persuasiveness of the evidence. State v. Bonisisio, 92 Wn. App. 783, 794, 964 P.2d 1222 (1998), review denied, 137 Wn.2d 1024 (1999).
Roush claims that based on Dr. Phenix's use of the actuarial tables, there was insufficient evidence for the jury to find that he was more likely than not to "engage in predatory acts of sexual violence" if released, as required by jury instruction number eight. Clerk's Papers (CP) at 86. But the trial court's instruction required the jury to find that Roush would likely engage in a predatory act of sexual violence, not necessarily be convicted of one. CP at 86.
Roush also challenges Dr. Phenix's finding that he had a 52 percent likelihood of being convicted of a new sexual offense. Dr. Phenix testified that the actuarial probabilities would underestimate Roush's risk of reoffending. She explained that the actuarial figures are `a very narrow definition' of Roush's being reconvicted, and they do not reflect predatory sexual acts in which Roush might engage but for which he might not be charged or convicted. This distinction is especially important here because Roush had at least two previous unadjudicated sex offenses. Dr. Phenix further testified that, in her opinion, `Mr. Roush has a severe long-standing perverse, pervasive paraphilia that contributes to his increased risk above that measured by either of the actuarial instruments [she] examined.' RP Vol. II at 147.
This statement is consistent with Dr. Phenix's later testimony that, although Roush's risk of reoffending would be lowered as a result of his age, she thought `that because [Roush] has such a strong sexual deviant preference, that he has such a long history of sexual offending, that [she] would really tend to include him in the smaller group of older offenders that would go on to sexually reoffend.' RP Vol. II at 160.
Dr. Phenix further stated that the strongest predictor of the risk of reoffense is past behavior. She testified that Roush previously reoffended less than a year after being released from prison: ten months after his release from prison in 1983, and again, eight months after his release in 1989. Considering all of this evidence in the light most favorable to the State, there was sufficient evidence for the jury to find beyond a reasonable doubt that more likely than not Roush was going to "engage in predatory acts of sexual violence if not confined in a secure facility.: CP at 86.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
MORGAN, A.C.J., HOUGHTON, JJ., concur.