Opinion
No. 48744-2-I.
Filed: June 14, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 00-2-01735-9. Judgment or order under review. Date filed: 06/26/2001. Judge signing: Hon. Palmer Robinson.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Sharon Jean Blackford, Attorney at Law, 1218 3rd Ave Ste 1800, Seattle, WA 98101.
Counsel for Respondent(s), David J.W. Hackett, King Co Pros Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2390.
Prosecuting Atty King County, King County Prosecutor/appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
Cindi S. Port, King County Prosecutor's Office, W554 King County Courthouse, 516 3rd Ave, Seattle, WA 98104-2390.
Christopher Rudolph was committed as a sexually violent predator. Most of the arguments he makes in this appeal were resolved against him in the recent decision In the Matter of the Detention of Thorell, 149 Wn.2d 724, 72 P.3d 708 (2003), cert. denied, 124 S.Ct. 2015 (2004). We reject his remaining claim that actuarial assessments should not have been admitted under Evidence Rules 702 and 703, and affirm.
BACKGROUND
In separate trials, Christopher Rudolph was convicted of attempted rape in the first degree and indecent liberties. Shortly before his release from prison, the State petitioned to have Rudolph civilly committed as a sexually violent predator (SVP) under RCW 71.09. In the ensuing bench trial, Rudolph and the State both presented expert testimony concerning his risk of reoffense.
The State's experts relied, in part, on results of actuarial tests including the MnSOST-R, SORAG, STATIC 99, and VRAG. Rudolph challenged this evidence under Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923) and ER 702. The court rejected the challenges and considered the evidence, determining that Rudolph is more likely than not to engage in predatory acts of sexual violence if not confined in a secure facility. Rudolph appealed. We stayed our consideration pending the decision in Thorell, and requested supplemental briefing in light of that decision.
In his opening brief, filed before the decision in Thorell, Rudolph relied on In the Matter of the Detention of Brooks, 145 Wn.2d 275, 36 P.3d 1034 (2001), to argue the court erred by refusing to consider less restrictive alternatives (LRAs) at the commitment trial. The Thorell court overruled Brooks, holding there is no equal protection violation in postponing consideration of LRAs in SVP cases, because the delay is rationally related to the treatment of SVPs: "[T]he time for LRA evaluation must be spent in intensive inpatient treatment, which occurs only after commitment." Thorell, 149 Wn.2d at 752 (emphasis omitted); Brooks, 145 Wn.2d at 292. Under Thorell, Rudolph had no right to consideration of LRAs at his commitment trial, and in his supplemental briefing, Rudolph abandons this argument.
DISCUSSION
Under Frye, a theory or principle must have achieved general acceptance in the scientific community before novel scientific evidence may be admitted. Actuarial determinations of future dangerousness satisfy the Frye test. Thorell, 149 Wn.2d at 755-56. Admissibility of such evidence is assessed under ER 702 and 703. Id. at 756. Under ER 702, a qualified expert may testify to scientific knowledge that will assist the trier of fact to understand the evidence or determine a fact in issue. ER 703 allows the expert to base his or her opinion on facts or data of a type reasonably relied upon by experts in a particular field. Rudolph contends that the actuarial evidence used in his case should not have been admitted because it does not meet these standards.
We review evidentiary rulings for abuse of discretion. In the Matter of the Detention of Strauss, 106 Wn. App. 1, 9, 20 P.3d 1022 (2001), aff'd sub nom, In the Matter of the Detention of Thorell, 149 Wn.2d 724, 72 P.3d 708 (2003), cert. denied, 124 So. Ct. 2015 (2004). A trial court abuses its discretion only when its decision is manifestly unreasonable or is exercised on untenable grounds or for untenable reasons. State ex. rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
Rudolph argues the actuarial evidence could not have been helpful to the trier of fact because it has not been proven and accepted in the scientific community. To the extent this argument survives after Thorell, it was resolved in our decision in Strauss. There, the State's expert relied upon a number of actuarial instruments in concluding that Strauss would more likely than not reoffend if not confined to a secure facility. Strauss challenged admission of this testimony under Frye and ER 702. We affirmed, and found it significant that Strauss's own expert acknowledged that actuarial instruments are useful in an overall risk assessment. Strauss, 106 Wn. App. at 9.
For this proposition, Rudolph cites Sanchez v. Haddix, 95 Wn.2d 593, 627 P.2d 1312 (1981). In Sanchez, an accident reconstruction expert based his opinion on an experiment he personally performed wherein he dropped a glass from a moving car and compared the pattern of broken glass to that observed at the scene of the auto accident at issue in the trial. The Supreme Court held the trial court did not abuse its discretion by excluding evidence of the experiment because "[t]here was no showing that experiments of this kind are an accepted and a proven method of accident reconstruction. Consequently, the offered proof was of minimal, if any, probative value, and would have served more to inject collateral issues than to enlighten the jury." Id. at 596. Sanchez is inapposite. Actuarial tools are accepted in the scientific community. See Thorell, 149 Wn.2d at 756.
Similarly here, the State presented two expert witnesses on Rudolph's risk to reoffend, and both relied, in part, on actuarial risk assessment to make their evaluations. One of the State's witnesses, Brian Judd, also reviewed literature on actuarial tools, including one analysis, based on 28,000 sex offenders in 16 studies, which found that predictions based on actuarial measures are more accurate than clinical judgment:
[This study found] that clinical judgment was accurate about 10% of the time with regards to being able to accurately predict whether somebody would reoffend, whereas actuarial measures were reliable about 45% of the time, so there was a much better correlation there with regard to actuarial measures, and that finding scored fairly consistent with other findings going back to in part of [the] mid to late 60s.
Report of Proceedings (RP) (Apr. 23, 2001) at 133. Rudolph's expert, Brian Glancy, admitted that actuarial instruments can be used as one piece of information to assess recidivism and that, while he does not use actuarials "for purposes of court," he does use them "for purposes of informing my opinion." RP (May 15, 2001) at 75-76. As in Strauss, this testimony supports the trial court's conclusion that actuarial assessments would be helpful in determining whether Rudolph should be considered an SVP. Rudolph was able to highlight the weaknesses of actuarial tools by cross-examining the State's witnesses and eliciting testimony from his own expert. Glancy testified extensively about the limitations inherent in each of the four instruments used by the State's experts, including small sample sizes, lack of random samples, lack of repetition and cross-validation, lack of manuals, newness of certain tools, and populations being subject to unknown or discredited treatment methods. As the fact-finder, it was the trial court's task to weigh this testimony against that of the State's experts. See Strauss, 106 Wn. App. at 9. The court did so, and did not abuse its discretion in concluding the evidence satisfied ER 702. The experts' disagreement as to the reliability of actuarial assessments goes to the weight of the evidence, not its admissibility.
Rudolph also argues the State failed to demonstrate that actuarial instruments are reasonably relied upon by experts in sex offender evaluation and treatment, as required by ER 703. Rudolph emphasizes various shortcomings of two of the instruments in particular, the STATIC 99 and the MnSOST-R. Specifically, Rudolph points out that certain populations used in formulating the STATIC 99 were subjected to therapeutic methods that have since been "universally repudiated," that there is no generally available manual for the MnSOST-R, that the MnSOST-R has not been peer-reviewed, and that one commentator has concluded the tool "amount[s] to experimental procedures; and, therefore, cannot support expert testimony in a legal proceeding." App. Supp. Br. at 5-6. Rudolph contends that "[t]he conclusions derived from the actuarial tables, therefore, lacked sufficient foundation to be more than speculative, conclusory assessments of risk." App. Br. at 7.
We disagree, because the State's experts provided an adequate foundation for use of the actuarial instruments. Leslie Rawlings testified that he relied in part on the STATIC 99 and the MnSOST-R in his evaluation. He stated that both of these tools had been cross-validated in subsequent research, and that actuarial instruments including the STATIC 99 and the MnSOST-R are reasonably relied upon by professionals assessing risk in this field. Judd described the risk assessment process, stating, "the two approaches [that are] routinely employed by members of my profession are utilizing either unstructured clinical judgment or to use actuarial measures." RP (Apr. 23, 2001) at 129. Judd's assessment relied on the STATIC 99 and MnSOST-R among several other tools.
We note that neither of the State's experts relied solely on these two instruments. Judd explained why he uses multiple actuarial tools: "Each of the actuarial tools has a specific limitation which may be associated with it, and so the point of using multiple tools is to look for commonality across the tools and get as many different sources, convergent sources of information as you can." RP (Apr. 23, 2001) at 148.
Along with Judd's testimony as to the accuracy of predictions based on actuarial instruments and Glancy's admission that he uses the instruments to inform his opinion, this testimony establishes that an expert in the field of forecasting recidivism in sex offenders could reasonably rely on the actuarial instruments used in this case. Thus the trial court did not abuse its discretion by admitting this evidence.
Rudolph next contends his commitment must be reversed because the trial court made no specific finding that he has serious difficulty controlling his behavior, which he argues is required by the United States Supreme Court's decision in Kansas v. Crane, 534 U.S. 407, 122 S.Ct. 867, 871, 151 L.Ed.2d 856 (2002). Rudolph's argument was expressly rejected in Thorell, where the court concluded that Crane "requires a determination that a potential SVP has serious difficulty controlling dangerous, sexually predatory behavior, but does not require a separate finding to that effect." Thorell, 149 Wn.2d at 735. The court explained:
We . . . read Crane as consistent with Hendricks, which held that a lack of control determination may be included in the finding of mental abnormality. 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 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. Then, if the existence of this link is challenged on appeal, this case specific approach requires the reviewing court to analyze the evidence and determine whether sufficient evidence exists to establish a serious lack of control.
Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997).
Id. at 736 (citation omitted). The court further concluded that "Hendricks and Crane do not mandate a specific jury instruction as long as the State demonstrates the cause and effect relationship between the alleged SVP's mental disorder and a high probability the individual will commit future acts of violence." Id. at 737. In sum, "the jury's finding that an SVP suffers from a mental illness, defined under our statute as a `mental abnormality' or `personality disorder,' coupled with the person's history of sexually predatory acts, must support the conclusion that the person has serious difficulty controlling behavior." Id. at 742.
Our review is thus limited to whether the evidence, in combination with Rudolph's history, supports a finding of the necessary link, and therefore establishes that Rudolph has serious difficulty controlling his behavior. Rudolph's history includes multiple sexual assaults. The trial court found that Rudolph suffers from a mental abnormality (paraphilia) as well as a personality disorder (chronic maladaptive functioning), that Rudolph's paraphilias and personality disorder "affect his emotional and volitional capacity and predispose him to the commission of criminal sexual acts in a degree constituting him a menace to the health and safety of others, specifically teenage girls and women," and that "[t]he respondent's mental abnormality and personality disorder make him more likely than not to engage in predatory acts of sexual violence if he is not confined in a secure facility." Resp. Br. Appx. (findings 3, 5). Rudolph has not assigned error to these findings, which are thus verities on appeal. State v. Broadaway, 133 Wn.2d 118, 131, 942 P.2d 363 (1997).
In 1987, Rudolph broke into the home of a 16-year-old girl while she was asleep. He threatened her, choked her until she lost consciousness, touched her breasts, put his tongue in her mouth, and put his finger in her vagina. Rudolph pleaded guilty to one count of first-degree burglary for this attack. Only three and a half months after his release from prison in May 1990, Rudolph broke into another young woman's home and touched her underwear while she slept, before he was discovered and ran away. Rudolph was convicted of second-degree burglary. Within days of his release, Rudolph approached a 14-year-old girl on the street and told her he just wanted to touch her. He then thrust his hand up her skirt and told her he had a knife. A month later, Rudolph called out to a 15-year-old girl on her way home and asked if he could walk with her. After small talk, he put his arm around her waist and touched her buttocks. These two incidents resulted in Rudolph's indecent liberties and attempted rape in the first degree convictions.
These facts establish a cause and effect relationship between Rudolph's mental abnormality and a high probability that he will commit future acts of predatory sexual violence, and support the conclusion inherent in the commitment order, that Rudolph has serious difficulty controlling his behavior. The evidence is sufficient to meet due process requirements under Thorell and Crane.
Finally, Rudolph maintains that Thorell incorrectly interpreted Crane, and that this court should therefore decline to follow Thorell. We do not have the authority to disregard decisions of our highest court. State v. Gore, 101 Wn.2d 481, 487, 681 P.2d 227 (1984). Rudolph must address his arguments there.
Affirmed.
KENNEDY and AGID, JJ., concur.