Opinion
63732-1-I
02-13-2012
STATE OF WASHINGTON, Respondent, v. RANDY TOWN, Appellant.
UNPUBLISHED OPINION
Spearman, J.
Randy Town appeals the jury's finding that he meets the definition of sexually violent predator (SVP) under chapter 71.09 RCW, claiming two evidentiary rulings of the trial court constituted prejudicial error. First, the State's expert was permitted, over his objection, to testify about the percentage of Washington State referrals she found met SVP criteria (80 percent) compared to the percentage referrals she received from all other states (less than 50 percent). Second, Town was not permitted to present evidence of the SVP statute's "recent overt act" (ROA) provision. We hold that his objection to the expert's testimony did not preserve the issue for appeal; the ROA evidence was properly excluded; and even if either ruling was error, Town does not show prejudice. We affirm.
FACTS
Town is, by his own admission, a child molester who has sexually abused 50 to 75 children ranging from three months to ten years old. His diagnosis of pedophilia, non-exclusive, sexually attracted to males is undisputed. He offended for nearly 25 years until late 1985, when he was detected after molesting his three-year-old godson, the son of a friend. He pleaded guilty to one count of statutory rape in the first degree and was sentenced to 31 months of confinement. He was released from confinement in November 1987 and discharged from supervision in June 1989. On September 8, 1989, he was charged with indecent exposure after he went to Sears to buy a shower curtain, saw a 10- to 12-year-old boy playing a video game, and masturbated in the aisle. He was ordered to receive sexual deviancy treatment.
"Non-exclusive" means Town is sexually interested in both prepubescent children and adults.
During a treatment evaluation, Town admitted to molesting numerous children and infants from when he was 19 until his incarceration for the 1986 statutory rape. His victims were typically children of friends or family members. In 1990, based on these disclosures, he pleaded guilty to two counts of statutory rape in the first degree and received an exceptional sentence of 300 months. During his confinement, Town had numerous sexual encounters with six to eight inmates, two of whom were his cellmates. He admitted to being aware that sex with inmates was against the rules.
Town testified at length about the acts he committed over a period of years. For example, he admitted sucking a three- to four-month-old infant's penis and putting his finger in the baby's anus; putting his penis in a nine-month-old baby girl's mouth; and fondling a four-year-old boy's penis while playing cards with the boy's family, sucking the boy's penis, and attempting to have anal sex with the boy. Town acknowledged that, as a Sunday school teacher at the Christian Faith Center, he victimized numerous children, sometimes four or five boys at a time. He reported masturbating his pet cat and performing fellatio on his dog and attempting to have anal sex with it.
In 2005, Town voluntarily signed up for and completed the Sex Offender Treatment Program (SOTP) at Twin Rivers. He had been unable to sign up in 1990 and 1994, due to a lack of available resources. Two months into SOTP, Town masturbated multiple times to images of children during a one-week period. He acknowledged failing to report these violations when they occurred, as required by treatment directives.
On October 23, 2007, while Town was confined, the State filed a petition for civil commitment, alleging he was an SVP under chapter 71.09 RCW. Dr. Amy Phenix had evaluated Town and opined in a November 2006 report that he met the criteria for civil commitment. While awaiting trial, Town entered into another sexual deviancy treatment program at the Special Commitment Center (SCC). During his participation in this program, Town masturbated to images of children on two occasions. Again, he failed to notify his treatment provider and counseling group of these violations when they occurred. He also failed to comply with a recommendation of his pretrial treatment to maintain an arousal log because of a concern that if he kept such a log, the contents would be used against him in an SVP trial. Town admitted to having sex with an SCC resident during a two-week period, while acknowledging that this violated the rules.
The SVP trial took place during June 2009, when Town was 55 years old. The sole issue for the jury was whether Town was an SVP. See RCW 71.09.060(1). The State had to prove beyond a reasonable doubt:
(1) That Randy Town has been convicted of a crime of sexual violence; and
(2) That Randy Town suffers from a mental abnormality which causes serious difficulty in controlling his sexually violent behavior; and
(3) That this mental abnormality makes Randy Town likely to engage in predatory acts of sexual violence if not confined to a secure facility.
Town filed several pre-trial motions in limine relevant to this appeal. First, he moved to exclude testimony from Phenix, the State's expert, as to the number of times she does and does not recommend commitment. This motion was granted, but the court cautioned that the door could be opened if Town's counsel asked whether Phenix always appears for the State or asks whether the defense has ever asked her to do an evaluation. Second, Town moved to prohibit Phenix from "vouching" for the prosecutor's filing standards, specifically from testifying that Washington had a higher filing standard in SVP cases than other states. At a hearing, the State agreed not to present such evidence, and the trial court granted the motion. But further discussion ensued about the State's position that Phenix should be permitted to testify that she weighed the fact that the case had been referred to her for an SVP evaluation in classifying Town's risk. Town argued that such testimony amounted to vouching. The court reserved ruling on that specific issue.
This motion arose from Town's concern about Phenix's deposition testimony stating her belief that Washington has a higher filing standard in SVP cases than other states. The motion argued that such testimony constituted vouching for the State's counsel; was not relevant; and constituted inadmissible conformity evidence, implying that Washington has a better history of screening civil commitment candidates than other states and that that history reflects on the prosecutor's decision to seek commitment in Town's case.
In another motion in limine, Town sought to present evidence regarding all methods of intervention that were available to the State, including the possibility that it could file another SVP petition if he committed an ROA. He argued that the ROA issue was "important for [his] internal motivation" and also "an important external tool that can be addressed by several witnesses." The State objected, citing State v. Harris, 141 Wn.App. 673, 174 P.3d 1171 (2007) and In re Det. of Post, 145 Wn.App. 728, 187 P.3d 803 (2008) (Post I), rev'd and remanded, 170 Wn.2d 302, 241 P.3d 1234 (2010) (Post II). In those cases, this court held that trial courts did not abuse their discretion in excluding evidence of the State's ability to file an SVP petition upon the respondents' commission of an ROA, because those cases did not involve ROAs and the possibility of a future ROA filing was hypothetical. Post I, 145 Wn.App. at 753-54; Harris, 141 Wn.App. at 679-80. The State argued that under RCW 71.09.060(1), the jury could consider only placement conditions that would actually exist if a respondent was unconditionally released, and the ROA provision was not an issue because Town was not living in the community when the SVP petition was filed. Based on Harris and Post I, the trial court denied Town's motion in limine.
At trial, Town testified about the progress he had made in SOTP, his changed attitude toward his victims, and the intervention skills he had learned to avoid reoffending. He agreed with the actuarial estimates that his risk of reoffending was less than 50 percent but testified it was greater than zero. Asked why he did not say zero, he said he did not want to become complacent. Town testified that he had to be diligent and mindful of his risks and interventions. He testified it had been approximately one year to one year and a half since he had masturbated to the image of a child. His plan, if released, was to enter a voluntary community-based treatment program and live at Mercy House, which housed sex offenders.
Phenix and Town's expert witness, Dr. Bryan Abbott, disagreed about whether Town was more likely than not to engage in predatory acts of sexual violence if not confined. In the course of establishing Abbott as an expert, Town's counsel conducted the following direct examination:
Phenix testified that the abnormalities she diagnosed caused Town serious difficulty in controlling his behavior. She based her opinion on Town's history of offending; inability to control his risky behavior; continuing to offend despite negative feelings resulting from his acts; admission to police in 1990 and in his SOTP intake that he only stopped when he thought he would be caught; statements about the difficulties he experienced trying to maintain control over his behavior; and masturbation to televised pictures of children in 2006 while in treatment. Ultimately, Phenix opined Town was more likely than not to engage in predatory acts of sexual violence if not confined to a secured facility.
[Town's counsel]: All right. Let's get down to it. How many total of psychological evaluations have you performed?
[Abbott]: In my career I have performed over 1400 psychological evaluations.
[Town's counsel]: On whose [behalf] did you perform those evaluations?
[Abbott]: Typically, these evaluations are requested by governmental agencies, such as Child Protective Services, the Probation Department. I am also on a few panels of court appointed evaluators so that the courts sometimes will appoint me to do evaluations. Then also, I am retained by defense attorneys to conduct psychological evaluations.
[Town's counsel]: So, let's talk about when you say that you are retained by the defense attorneys to conduct the psychological evaluation. What sort of psychological evaluations have you done for the defense attorneys?
. . .
[Abbott]: For the defense I have typically done a variety of of [sic] evaluations, for instance, to determine whether someone is competent to assist in their defense in their case. . . .
. . .
[Town's counsel]: Let's go back to the evaluations that were done involving the sex offenders.
[Abbott]: Yes.
[Town's counsel]: How many of those some 1400 evaluations that you have done in the past, how many of them involved evaluating the sex offenders I am not talking about SVP cases, but in all cases?
[Abbott]: I would estimate in the neighborhood of 75 or 80 percent, involved either adult sex offenders or adolescents [sic] sex offenders.
[Town's counsel]: How many of them were involved in evaluating the sex offenders for civil commitment proceedings?
[Abbott]: I have probably done close to 80 of those. So, probably that would be some where in the neighborhood of about 70 percent of all of the evaluations that I have done over the years.
Abbott also testified:
Generally, I do [on] all cases that I initially accept, I will do a document review to look at, are there any issues where I might be helpful in evaluating the client? Probably in about 25 to 30 percent of the cases that I review, I find that I would not disagree with the State evaluator opinion, in those cases there is really no reason for me to move to the full evaluation of the Respondent in those types of situation.
During a break, the State pointed out the foregoing testimony in light of Town's motion in limine. The trial court noted that Town's counsel's questions referred to the same issue precluded by its order. The court ruled that Town had opened the door to previously excluded testimony and Phenix could return to the stand to testify about how often she found in favor of defendants. Abbott's testimony lasted the remainder of the day.
The next day, before Abbott resumed testifying, the following colloquy took place:
[Town's counsel]: I understand that Dr. Phenix is going to be called as a rebuttal to Dr. Abbott's testimony, as well as the fact that this Court made a determination that I opened the door. I guess that the State was expect-wasn't expecting me to open. I want to make sure that Dr. Phenix's testimony is going to be limited to the true rebuttal to Dr. Abbott's testimony, as well as the fact that Dr. Phenix, how much-how many times that she worked for the defense and how many times did she work for the prosecution, not any other vouching or any other things that I have not opened the door to. I am trying not to rehash her direct testimony once again on this stand. I think that is an agreement by the State.
[Prosecutor]: I am aware of the rebuttal rules. I think that I am time limited anyway. [Phenix] will be brought in to testify regarding the matters that we believe and the Court has ruled were opened by the door having been opened by the defense. In addition, to specific topics of rebut – Dr. Abbott's testimony, it will be extremely limited. I have time constraints.
The attorneys then discussed whether the income of the expert witnesses would be an issue that came up in testimony and the court stated that if the issue was raised by either side, it would come in for both. The court then advised Town's counsel that "if you think something is beyond the scope and [sic] of rebuttal and [sic] object and I will rule on it."
After this exchange, Abbott testified at length. After his testimony, Phenix returned to the stand in rebuttal. The following testimony took place:
[Prosecutor]: Now, you testified earlier that you conducted 300 sexually violent predator evaluations since November of 1995?
[Phenix]: Yes, in various states I have, yes.
[Prosecutor]: How many of those were Washington sexually violent predator evaluations?
[Phenix]: 37.
[Prosecutor]: Now, of the 300 evaluations that you have conducted since 1995, how many sex offenders did you feel met criteria?
[Town's counsel]: Objection; again, outside of the scope.
[Court]: Overruled, for the reasons that have put on the record. She may answer.
[Phenix]: A little under 50 percent.
[Prosecutor]: Of the Washington cases that you have evaluated, how many of those would you feel met that criteria?
[Town's counsel]: Standing objection.
[Court]: You may have a continuing objection. It is overruled again for the reasons that I put on the record.
[Phenix]: I found about 80 percent of those cases would be positive and 80 percent I did not recommend – I mean, 20 I did not recommend commitment.
Phenix was asked how often she had been retained by or testified on behalf of the defense and responded "about 30 percent of my practice in the last few years has been for the [SVP respondent]."
Phenix's testimony was referenced in closing argument when the prosecutor stated:
Well, consider Dr. Phenix. She has done about 300 evaluation[s]. She has told you that over all, in about 50 percent of the time, she has found that someone has not met the sexually violent predator criteria.
In terms of Washington cases that number is higher, about 90 percent [sic].
Phenix's testimony was actually that she recommended civil commitment in about 80 percent of her Washington cases.
The jury found Town to meet the SVP criteria beyond a reasonable doubt. This appeal follows.
DISCUSSION
Town assigns error to the trial court's rulings (1) permitting Phenix's testimony about the percentage of Washington State referrals she found met SVP criteria compared to the percentage of SVP referrals from all other states and (2) excluding evidence about the ROA provision. He also claims these rulings were cumulative error. We conclude Town's objection to Phenix's rebuttal testimony failed to preserve the issue for appeal because it did not apprise the trial court of the specific objection claimed on appeal. Moreover, it was not prejudicial. We also conclude the trial court did not abuse its discretion in excluding the ROA evidence and Town does not show he was prejudiced by such exclusion.
Standard of Review
A trial court's ruling on the admissibility of evidence is subject to the abuse of discretion standard. State v. Darden, 145 Wn.2d 612, 619, 41 P.3d 1189 (2002). Abuse of discretion occurs where the trial court's decision is manifestly unreasonable, or based on untenable grounds or reasons. State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995).
Phenix's Testimony
Town argues that the trial court erred when it permitted Phenix to testify, over his objection, about the percentage of SVP referrals she finds meet the criteria for civil commitment in Washington compared to her percentage of SVP referrals from all other states. He contends this testimony bolstered the State's case because Phenix effectively vouched for the prosecutor's decision to seek civil commitment, and went beyond proper rebuttal to Abbott's testimony because Abbott never distinguished between Washington cases and cases generally.
The State contends that Town's "standing objection, " presumably referring to his "beyond the scope" objection, was insufficient to preserve the objections claimed on appeal. We agree. To preserve an evidentiary issue for appellate review, the specific objection made at trial must be the same basis of a party's assignment of error on appeal. State v. Guloy, 104 Wn.2d 412, 422, 705 P.2d 1182 (1985). Town argues that the testimony was beyond the scope of rebuttal and that the objections should have been sustained on that basis. But even if Town is correct on this point it is of no help to him. Town's objection failed to apprise the trial judge of the specific issue about which he complains on appeal: that the testimony was objectionable because it violated the trial court's ruling on Town's motion in limine regarding vouching.
The State also contends Phenix's testimony did not amount to vouching for the prosecution's filing decisions or violate Town's motion in limine. It points out that her testimony mentioned the Department of Corrections, not the prosecutor, and contends there is no actual or apparent connection between Phenix and the prestige of the prosecutor's office. It contends that when Town made the motion in limine about vouching, he was concerned with Phenix's deposition testimony about Washington's rigorous screening and filing standards, but notes the deposition was not entered into evidence and Phenix's testimony did not mention Washington's screening process or filing standards.
Moreover, even if the issue is properly before us and the testimony was admitted in error, Town cannot show he was prejudiced. In SVP appeals, the harmless error doctrine applies and reversal is justified only where the evidentiary error resulted in prejudice. Post I, 145 Wn.App. at 748. "An error is prejudicial if, within reasonable probabilities, had the error not occurred, the outcome of the trial would have been materially affected." Id. (quoting State v. Neal, 144 Wn.2d at 611) (internal citation and quotation marks omitted). Improperly admitted evidence is harmless error if the evidence "'is of minor significance in reference to the evidence as a whole.'" Post I, 145 Wn.App. at 748 (quoting Neal, 144 Wn.2d at 611).
Here, it cannot be said that had Phenix's testimony been excluded, the outcome of the trial would have been materially different within reasonable probabilities. It was undisputed that Town had been convicted of a crime of sexual violence, had an extensive history of sexual abuse against children, and suffered from a mental abnormality, pedophilia. The issues were whether his pedophilia caused him serious difficulty in controlling his sexually violent behavior and whether his pedophilia made him likely to engage in predatory acts of sexual violence if he was not confined. The State presented substantial evidence that Town had difficulties controlling his sexual impulses. For example, he acknowledged having sex with other inmates despite knowing it was against the rules. He masturbated to images of children while awaiting trial on the SVP petition and did not report these instances to his treatment provider. Town himself testified that his likelihood of reoffending was greater than zero. In light of this and other evidence, even if the testimony was admitted in error, there is no reasonable probability that the outcome of the trial would have been different.
Town contends the State exacerbated the prejudice by making specific reference to the evidence in closing argument, citing State v. Susan, 152 Wn. 365, 278 P. 149 (1929) in support. App Brief at 21. But the State's reference to Phenix's testimony in closing argument was not nearly as prejudicial, nor did it so clearly amount to vouching, as the statement in Susan, where the prosecutor said in his opening statement, "[N]ever in the history of the five or six years that I have been prosecuting attorney of this county have I ever accused any man or woman of any crime or filed an information against them until I was satisfied that they had committed the crime." Susan, 152 Wash. at 378.
ROA Evidence
Town next claims that the trial court erred in prohibiting him from presenting evidence about the ROA provision. Under RCW 71.09.060, if the State files an SVP petition against an individual while that person is living in the community after release from custody, the State must prove beyond a reasonable doubt that he or she committed an ROA while living in the community. An ROA is "any act, threat, or combination thereof 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 or behaviors." RCW 71.09.020(12).
Town was in custody at the time the petition was filed, so there was no issue at trial as to whether he committed an ROA. Rather, he wanted to present evidence on the ROA provision generally because he claimed it was a method of intervention that was available to the State if he were released unconditionally. The legislature has "provided that respondents in [SVP] proceedings have a right to present evidence of proposed voluntary treatment options in order to attempt to counter the State's contention that they are likely to reoffend if not committed a secure facility." Post I, 145 Wn.App. at 743.
Town bases his claim on Post II, where the Washington Supreme Court noted in dicta that evidence that an SVP respondent who is subsequently released could be subject to a future SVP petition upon commission of an ROA is relevant to an SVP determination because it is a condition that would exist upon the respondent's placement in the community. Post II, 170 Wn.2d at 309, 316. The trial court had excluded the evidence on the ground that it was hypothetical and not relevant under RCW 71.09.060, because it was not a placement condition that "would exist" for Post. We agreed with the trial court. But the Post II court disapproved:
The court reversed and remanded on a different basis: its holding that the trial court erred in admitting evidence about the treatment at the SCC that would be available to Post if he were committed and evidence that Post could later be released to a less restrictive alternative if he were committed. The court held that this evidence was not relevant to the jury's determination of whether Post was an SVP and also held that the error in admitting this evidence was not harmless. Post II, 170 Wn.2d at 314. The court cited the fact that in the first of Post's two commitment trials-at which the State did not introduce evidence about SCC treatment-the jury deadlocked. Post II, 170 Wn.2d at 315. But at the second trial, the evidence was introduced and Post was committed. "This is persuasive evidence that the introduction of the evidence may have impacted the outcome. Moreover, the evidence of treatment available at the SCC offered in the second SVP determination trial was not merely in passing, but was thorough, systematic, and repeated." Id.
Post's knowledge of the consequences for engaging in such conduct may well serve as a deterrent to such conduct and, therefore, has some tendency to diminish the likelihood of his committing another predatory act of sexual violence. This likelihood, of course, is an element that the jury must address. See RCW 71.09.020(18). The possibility of a recent overt act petition is therefore relevant to the determination of whether Post is an SVP.Id. at 316-17. The court emphasized that it was not deciding whether the evidence was admissible, but was "merely correct[ing] the Court of Appeals' misapprehension and hold[ing] that the evidence is relevant and does not violate RCW 71.09.060(1)." Id. It noted that ER 403 issues are best addressed in the first instance by trial courts, and are subject to review for abuse of discretion.
Town points out that the trial court excluded the ROA evidence based on Harris and Post I. He argues the evidence was relevant and admissible, contending that where Phenix testified that she assigned Town a higher level of risk because he was not subject to formal supervision, the jury should have been permitted to weigh this testimony against Town's knowledge of the ROA provision. He contends it was critical for the jury to understand his own assessment of his need to not only avoid overt crimes but also stay within the "reasonable apprehension" standard of the ROA provision.
The State argues that Town's proposed evidence went beyond his personal motivations; was collateral and inadmissible under ER 403; and went beyond the scope of potential relevance recognized in Post II. The State also notes it made clear it did not oppose testimony from Town about his personal motivations not to reoffend due to the prospect of an ROA. At the hearing on the motion in limine, the trial court asked the prosecutor to respond to Town's argument to admit the ROA evidence as it related to his internal controls, and the prosecutor responded:
Personally, I don't quite understand the strategy presenting to the jury, "let him go. If you let him go, he has always has the fear of arrest and the police will be arresting him and facing another jury and another SVP trial under recent overt act, or two strikes or three strikes on whatever criminal act that he conducts."
If they want to make that argument, go ahead. I don't think that any particular juror would be swayed or comforted by that notion. But fear of arrest, I think that maybe that can be argued, because that is a condition that will exist as soon as he is released.
Our argument that we certainly never prevented him before the prior 75 [victims] or even following his two sentencings, one sentencings, when he was reassessed on the indecent exposure.
That is, arguable, is admissible, because it is a condition that will exist upon release, immediate upon release.
The State contends there was no proposed evidence, in the form of an offer of proof, that Town was personally motivated to avoid reoffending by the prospect of a future ROA filing.
We conclude, based on our review of the record, that the ROA evidence was properly excluded because it was not admissible under ER 403. The Post II court recognized the potential relevance of ROA evidence insofar as such evidence relates to a respondent's likelihood of committing another predatory act of sexual violence. Specifically, how such likelihood may be decreased because of the respondent's knowledge of the consequences of the ROA provision. The Post II court did not discuss a basis for the relevance of ROA evidence beyond this. Also, it did not hold that such evidence was admissible in every case, but rather that it should not be automatically excluded on the basis of being not relevant under RCW 71.09.060.
Here, the relevance of the ROA evidence, if any, was minimal. Town did not make an offer of proof that he was personally motivated to avoid reoffending based on his knowledge of the consequences of the ROA provision. No such evidence can be found in his deposition or trial testimony. Rather, his motion was premised on the argument that the evidence was admissible generally as one of the "available methods of intervention" to the State. His motion stated that the evidence could come in through several witnesses.
Under ER 403, even 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." The probative value of the ROA evidence in Town's case, given its minimal relevance, was substantially outweighed by the danger of confusion of the issues and misleading the jury. This is evident given Town's explanation of how he would present the ROA evidence. His motion argued that in addition to other interventions available to the State to control recidivism, "the jury must also consider the State's availability to intervene and incarcerate Mr. Town if he commits a 'recent overt act' while in the community." He argued that the State's potential to intervene under the ROA provision "is an important tool at reducing risk." The implication of Town's motion was that he intended to present evidence of the ROA provision as a general tool at the State's disposal, not simply as a factor that reduced his personal likelihood to reoffend because of his awareness of the consequences of committing an ROA. Presenting the evidence in this manner could have posed the danger of confusing or misleading the jury by suggesting that Town would be monitored in some manner upon release.
Furthermore, even if it was error to exclude the evidence, Town does not show that the outcome of the trial was materially affected, given the other evidence. During Town's testimony about the incident in Sears, he about his concern over being detected. He testified, "I have alway concerned about being detected and tried to shield in some way o keep from being detected." He was then asked, "Would that includ what you had done, when you were confronted?" He responded y testimony indicated that Town offended despite his fear of being d the possibility of being caught was not a deterrent to his offending would instead be careful to avoid being caught.
Town also argues cumulative error based on the same two rulings we have considered. This challenge is not well taken, give conclusion that neither ruling was error.
Affirmed.
Abbott noted that Phenix's opinion was based largely on Town's past offending, without reports of current serious difficulty controlling sexually violent behavior. He acknowledged that Town continued to suffer from deviant urges or thoughts about prepubescent children, but testified that Town was able to control them to a point where he does not engage in acts indicative of serious difficulty controlling sexually violent, predatory behavior. Abbott opined that Town did not meet the "more likely than not" standard and that, taking into account the local base rates in Washington as well as his advancing age, Town's risk of reoffending was substantially less than 50 percent.