IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
In the Matter of the Detention of ) No. 77287-2-1 ) ) ) KYLE HAMMOND, ) UNPUBLISHED OPINION ) Respondent, ) FILED: March 25, 2019 )
VERELLEN, J. — Hearsay that does not form the basis of an expert witness's opinion may not be admitted under ER 703. If an expert has no confidence that an
otherwise inadmissible police report has anything to do with a crime admitted by a
person who is the subject of a sexually violent predator(SVP) petition and the
expert's opinion is the same with or without the police report, the report is not a
basis for the expert's opinion for purposes of ER 703. But the improper admission
of hearsay is not reversible error where, within reasonable probabilities, the
outcome of the trial was not impacted. Kyle Hammond fails to establish that the
improper admission of a police report impacted the outcome of his SVP trial.
Hammond also fails to establish that the refusal to give a clarifying
instruction that "more probably than not" means "more than a 50 percent
likelihood" precluded him from arguing his theory of the case under legally
accurate instructions given by the trial court. No. 77287-2-1/2
And sufficient evidence supports the jury verdict that Hammond is an SVP
because his admissions are consistent with expert testimony connecting the
manifestations of his antisocial personality disorder(ASPD), his dysfunctional
coping skills, and his hypersexuality.
Therefore, we affirm.
FACTS
Hammond grew up in "deplorable conditions" in which he and his siblings
suffered "severe sexual abuse [and] physical abuse."1 His father raped him when
he was two. When Hammond was 10, his father encouraged him to have sex with
his nine-year-old half-sister. Around that time, Hammond had his first arrest and
conviction for breaking a teacher's wrist. When Hammond was 13, he molested
his brother and sister. At 14, he was arrested for first degree child molestation,
pleaded guilty, and registered as a sex offender.
Between 18 and 20, Hammond committed and was convicted of indecent
liberties, voyeurism, and failing to register as a sex offender. He was sentenced to
84 months incarceration. While in the sex offender treatment and assessment
program at Monroe Correctional Complex, Hammond admitted he had committed
a previously unknown and unadjudicated crime: raping a stranger at knifepoint.
The State petitioned to involuntarily commit Hammond to the Special Commitment
Center as a sexually violent predator(SVP) pursuant to chapter 71.09 RCW.
1 Report of Proceedings(RP)(July 17, 2017) at 523.
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Two psychological experts testified during Hammond's civil commitment
trial. Dr. Harry Goldberg testified for the State, and Dr. Amy Phenix testified for
Hammond. Both experts diagnosed Hammond with a clinical personality disorder.
But they disagreed about whether Hammond's particular diagnosis met the legal
definition for "mental abnormality" or "personality disorder" and whether he was
likely to commit violent sexual acts in the future. During his testimony, Dr.
Goldberg was asked to comment on an unadjudicated police report from Kent,
Washington, in which a rape victim said an unknown assailant attacked her. The
State asked Dr. Goldberg to assume the police report was about Hammond's
rape, even though Dr. Goldberg lacked any certainty that the police report involved
Hammond. Dr. Goldberg commented about the police report's significance to his
opinion. But his opinion was the same with or without the police report. Although
the jury did not unanimously agree he had a qualifying mental abnormality, it found
that Hammond had a personality disorder and that he was an SVP. The court
ordered Hammond committed into State custody.
Hammond appeals.
ANALYSIS
The State may petition under chapter 71.09 RCW to commit someone
indefinitely to a secure facility if it can prove beyond a reasonable doubt that
person is an SVP.2 An SVP is "any person who has been convicted of or charged
with a crime of sexual violence and who suffers from a mental abnormality or
2 RCW 71.09.030, .060(1).
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personality disorder which makes the person likely to engage in predatory acts of
sexual violence if not confined in a secure facility."3
Hammond requests vacation of the court's commitment order and remand
for a new trial because he contends the court erroneously admitted the Kent police
report, the court improperly instructed the jury, and the jury found him to be an
SVP despite an absence of substantial evidence.
I. The Kent Police Report
We review decisions to admit evidence for abuse of discretion.4 A court
abuses its discretion where it acts for untenable reasons or bases its decision on
untenable grounds.5 A court abuses its discretion where it fails to follow an
evidentiary rule's requirements.6
Before trial, the State moved to permit testimony from Dr. Goldberg about a
police report describing an unsolved rape by an unknown assailant that occurred
in Kent while Hammond lived there. Hammond objected and argued the report
described a different rape than his and was hearsay not admissible by any
exception. The court granted the motion for the limited purpose of informing or
supporting Dr. Goldberg's opinion.
3 RCW 71.09.020(18). 4 In re Det. of Coe, 175 Wn.2d 482, 492, 286 P.3d 29(2012)(citing State v. Foxhoven, 161 Wn.2d 168, 174, 163 P.3d 786 (2007)). 5 Id. (quoting Foxhoven, 161 Wn.2d at 174). 6 Foxhoven, 161 Wn.2d at 174 (citing State v. Neal, 144 Wn.2d 600, 609, 30 P.3d 1255 (2001)).
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Hearsay is inadmissible unless subject to an exception.7 Police reports are
generally hearsay because an officer subjectively recounts her investigation.8
ER 703 permits testimony about otherwise inadmissible information where "an
expert bases an opinion or inference" on a type of information reasonably relied
upon by experts in that field.8 But "[e]xperts should not act as funnels to allow
lawyers to get into evidence through their expert opinion what is otherwise
inadmissible."1°
The parties do not dispute that psychological experts in SVP trials
reasonably rely on criminal history and police reports,11 so the issue is whether Dr.
Goldberg's opinions at trial were genuinely based on the police report. The party
seeking to introduce the expert testimony must show it complies with ER 703.12
In State v. Hamilton, the State sought to impeach an expert defense
witness on cross-examination by asking questions about the defendant's medical
7 ER 802. 8 Coe, 175 Wn.2d at 505. 9 Matter of Det. of Marshall, 156 Wn.2d 150, 161, 162, 125 P.3d 111 (2005); ER 703. 1° Coe, 175 Wn.2d at 516(Chambers, J. concurring); see Marshall, 156 Wn.2d at 162-63("However, it does not follow that such a witness may simply report such matters to the trier of fact: The Rule was not designed to enable a witness to summarize and reiterate all manner of inadmissible evidence.") (internal quotation marks omitted)(quoting State v. DeVries, 149 Wn.2d 842, 848 n.2, 72 P.3d 748 (2003)). 11 Appellant's Br. at 38; Resp't's Br. at 28. 12 See State v. Hamilton, 196 Wn. App. 461, 478, 481, 383 P.3d 1062 (2016)("Mile party seeking to impeach an expert witness pursuant to ER 703 and ER 705 has the burden of demonstrating that the expert, in formulating his or her opinion, relied on the facts or data proffered by the impeaching party.").
5 No. 77287-2-1/6
records and the information in them.13 The expert testified he had reviewed the
records but had not relied on them because his ultimate opinion was not based on
them.14 As a result, this court held the information from the medical records was
inadmissible under ER 703.15
Similarly, here, the State never established that Dr. Goldberg relied on the
police report to form the basis of his opinion.16 Dr. Goldberg testified the Kent
police report impacted his opinion only if Hammond actually committed the crime
described in it. But the report was unadjudicated, and the victim described an
assailant with "some similarities [and]some differences" from Hammond,so Dr.
Goldberg had no level of certainty that the report had anything to do with
Hammond.17 Dr. Goldberg also testified his opinions about Hammond would be
unaffected if the police report was about someone else.15 Because Dr. Goldberg
could not rely on the report for information about Hammond's admitted rape and
the report's accuracy had no bearing on his opinions, the State failed to establish
Dr. Goldberg based his opinions on it. ER 703 was not an appropriate hearsay
13 196 Wn. App. 461, 467, 481, 383 P.3d 1062(2016). 14 Id. 15 Id. at 474-75. 16 The State seeks to distinguish Hamilton from the instant case because Dr. Goldberg testified on direct rather than being cross-examined. Resp't's Br. at 33-34. But the State offers no authority or explanation for the significance of this distinction, and none is apparent. 17 RP (July 24, 2017) at 1307. 18 Id. at 1308.
6 No. 77287-2-1/7
exception. Accordingly, the court abused its discretion by admitting inadmissible
hearsay.19
"[E]videntiary error will not be reversed absent a showing that the error
prejudiced the defendant.'"2° Errors are prejudicial if, "'within reasonable
probabilities, had the error not occurred, the outcome of the trial would have been
materially affected.'"21 This analysis is unrelated to whether sufficient evidence
exists to find the person on,trial is an SVP absent the inadmissible evidence.22
In Hamilton, this court concluded the defendant was prejudiced by the
admission of inadmissible information and improper impeachment of his expert
witness.23 Because the jury would have had a duty to acquit had it believed the
defense expert and the improper impeachment also undermined the defendant's
affirmative defense, prejudice to the defendant resulted.24 By contrast, in In re
Detention of Mines, the court concluded an SVP was not prejudiced by the court's
admission of evidence showing prior bad acts, even if erroneously admitted.25
The Mines court concluded that admitting an information containing unproven
19 Foxhoven, 161 Wn.2d at 174. 29 Hamilton, 196 Wn. App. at 484 (alteration in original)(quoting Aubin v. Barton, 123 Wn. App. 592, 608, 98 P.3d 126 (2004)). 21 Neal, 144 Wn.2d at 611 (quoting State v. Smith, 106 Wn.2d 772, 780, 725 P.2d 951 (1986)). 22 State v. Gower, 179 Wn.2d 851, 857, 321 P.3d 1178 (2014). 23 96 Wn. App. at 484-85.
24 Id. 25 165 Wn. App. 112, 128, 266 P.3d 242(2011).
7 No. 77287-2-1/8
charges against the SVP could not have prejudiced him because the SVP
admitted to committing the crimes charged.26
Hammond argues the erroneous admission of the police report prejudiced
him by undermining his credibility. According to Dr. Goldberg, if the police report
describes Hammond's admitted rape, then it showed Hammond had a "pervasive"
"desire for nonconsensual sex" because the date of the police report was within
three weeks of him taking indecent liberties with a stranger.27 In addition, the
State used the Kent police report in conjunction with Hammond's admitted rape to
contend he was aroused by nonconsensual sex, contrary to Hammond's
testimony.28
However, Hammond admitted to committing a rape strikingly similar to the
rape described in the Kent police report.29 And Hammond's testimony allows that
his admitted rape could have occurred in the same time period as the rape in the
police report; within three weeks of him groping a stranger he followed off the
bus.39 Moreover, the State extensively impeached Hammond's credibility during
26 Id. 27 RP (July 24, 2017) at 1307. 28 RP (Aug. 1, 2017) at 2085-86. 28 Compare RP (July;24, 2017) at 1304-05 (Dr. Goldberg's account of the rape), with RP (July 26, 2017) at 1614-18(Hammond testifying about his rape). 3° RP (July 20, 2017) at 1047, 1052(Hammond testifying he took indecent liberties while living in the community before going to North Dakota).
8 No. 77287-2-1/9
his testimony without relying on the police report.31 Unlike Hamilton, the court's
error neither undermined Hammond's expert nor restricted his ability to present his
theory of the case. Because the jury learned the harsh details of Hammond's
admitted rape from his own statements, as in Mines, and the State undermined his
credibility apart from the erroneously admitted evidence, Hammond does not show
prejudice resulted from improper admission of the police report.
II. The Court Properly Instructed the Jury
We review jury instructions de novo for any errors of law and review a
court's choice of jury instructions for abuse of discretion.32
"Jury instructions are sufficient when they allow counsel to argue their 1 theory of the case, are not Misleading, and when read as a whole properly inform
the trier of fact of the applicable law.'"33 Jury instructions must be "manifestly
clear" because the jury is not allowed to resolve ambiguous wording through
interpretive tools.34
31 E.g., RP (July 19, 2017) at 956-960; RP (July 26, 2017) at 1638 (asking Hammond about his history,of lying to treatment providers and confronting him about past lies in his treatment records). 32 State v. Stacy, 181 Wn. App. 553, 569, 326 P.3d 136 (2014); In re Det. of Alsteen, 159 Wn. App. 93, 99, 244 P.3d 991 (2010). Id. (internal quotation marks omitted)(quoting Keller v. City of Spokane, 33 146 Wn.2d 237, 249, 44 P.3d 845 (2002)). 34 State v. Irons, 101 Wn. App. 544, 550,4 P.3d 174(2000)(quoting State v. LeFaber, 128 Wn.2d 896, 902, 913 P.2d 369 (1996)).
9 No. 77287-2-1/10
Hammond took exception to a jury instruction restating the entirety of
Washington pattern jury instruction 365.14.35 The instruction interprets the
statutory third element for finding a person is an SVP, that the person is "likely to
engage in predatory acts of sexual violence if not confined in a secure facility," as
meaning "that the person more probably than not will engage in such acts if
released unconditionally from detention in this proceeding."36 Hammond proposed
additional language defining "more probably than not" as "that there is more than a
50[percent] likelihood that the person will engage in such acts."37
Hammond argues the court erred by rejecting his proposed clarifying
language because it correctly stated the applicable law. He does not argue,
however, that the trial court's instructions incorrectly stated the applicable law.
RCW 71.09.060(1) requires a jury to determine "whether or not the person
[accused of being an SVP] would be likely to engage in predatory acts of sexual
violence if not confined, in a secure facility."35 This third element to prove a person
is an SVP "is 'a compound determination" requiring the jury to find "'both
causation (i.e., the abnormality or disorder causes the likelihood of future acts),
and that the probability of the defendant's reoffending exceeds 50 percent."39 In
35 6AWASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CIVIL 365.14, at 578 (2012). 36 Id. 37 Clerk's Papers at 1224. 38 See RCW 71.09.020(18)(defining "sexually violent predator"). 39 Matter of Det. of Harell, 5 Wn. App. 2d 357, 370, 426 P.3d 260(2018) (internal quotation marks omitted)(quoting In re Det. of Post, 170 Wn.2d 302, 310, 241 P.3d 1234 (2010)).
10 No. 77287-2-1/11
other words, "[t]he State must prove not only that a crime occurred, but that the Irn SVP continues to suffer fro a mental abnormality [or personality disorder] and
that he or she would likely reoffend if released from confinement."40
Neither the civil commitment statute nor the case law require Hammond's
proposed language any more than they prohibit it. And Hammond still argued his
defense, despite the rejection.41 The court correctly instructed the jury on the
applicable law and both par'ties argued their theory of the case.
The court rejected Hammond's proposal because it did not "want to confuse
the standard of proof with statistics" in a "case [that] is much more number-driven 1 than most."42 Using several actuarial tools, both experts testified at length about
the statistical likelihood of Hammond reoffending if released. For example, Dr.
Goldberg testified that Hammond had a 42.2 percent chance of reoffense in five
years, which meant he was more likely to reoffend than 99 percent of all sex
offenders.43 The court was'concerned jurors in King County "are extremely
mathematical, and they tend to translate almost any argument like this into the
math that's familiar to them; which is usually not the math you're talking about[;]
some of the jurors simply go amiss on what these measurements mean."44
40 Matter of Det. of Belcher, 189 Wn.2d 280, 290, 399 P.3d 1179 (2017). 41 RP (Aug. 1, 2017) at 2143-44 (arguing during closing,"So we have to find that Mr. Hammond is more likely than not to reoffend, and that's over the 50 percent mark. Most sex offenders reoffend at a rate of about 10 percent."). 42 RP (July 13, 2017) at 439, 442. 43 RP (July 25, 2017) at 1348-50. 44 RP (July 5,2017) at 116.
11 No. 77287-2-1/12
Because the court properly instructed the jury on the law and rejected Hammond's
proposed instruction based on reasonable concerns, the court did not abuse its
discretion.
III. Sufficient Evidence Supported the Jury's Verdict
Sufficient evidence supports a jury finding that a person is an SVP where a
rational trier of fact could, when viewing the evidence in a light most favorable to
the State, find the essential elements were met beyond a reasonable doubt.45
The core of Hammond's sufficiency argument is that "[j]uries are not
permitted to fashion their own diagnosis in SVP cases—expert testimony is
required."46 Hammond contends the jury took an unpermitted step because
neither expert specifically testified he had a qualifying "personality disorder," only
Dr. Goldberg testified Hammond had a qualifying mental abnormality, and the jury
found Hammond had a qualifying personality disorder but not a mental
abnormality.47 But Hammond's argument misconstrues the roles of the jury and
the experts.
Experts testify to "assist the trier of fact to understand the evidence or to
48' Although an expert may opine on the ultimate legal determine a fact in issue.",
issues in the case, those issues must "be decided by the trier of fact."49 In an SVP
45 In re Det. of Thorell, 149 Wn.2d 724, 744, 72 P.3d 708 (2003). 46 Appellant's Br. at 20. 47 Id. at 19-20. 48 ER 702. 49 ER 704.
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trial, the jury must determine whether a person has a qualifying, statutory "mental
abnormality" or a qualifying, statutory "personality disorder."5° This legal 1 determination is distinct from the expert's clinical diagnosis, and the latter does not
mandate the former.51 Unlike this court, the jury is free to evaluate the credibility
of the experts and determine which portions of their testimony are most reliable.52
Here, the jury did not find Hammond has a "mental abnormality," so the
question is whether sufficient evidence supported its finding that he has a
"personality disorder."
A statutory "personality disorder" is "an enduring pattern of inner experience
and behavior that deviates markedly from the expectations of the individual's
culture, is pervasive and inflexible, has onset in adolescence or early adulthood, is
stable over time and leads to distress or impairment."53 Unlike "mental 1 abnormality," this statutory definition happens to be the same as the clinical
definition in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition 1
50 RCW 71.09.020(18). 51 See ER 704; see, e.g., RP (July 17, 2017) at 495-96 (Dr. Phenix testifying "mental abnormality" "doesn't really come from psychological or psychiatric writings or definitions"). 52 See State v. Cardenas-Flores, 189 Wn.2d 243, 266, 401 P.3d 19(2017) ("Credibility determinations are for the trier of fact' and are not subject to review.") (quoting State v. Camarillo,1115 Wn.2d 60, 71, 794 P.2d 850(1990)). RCW 71.09.020(9).
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(DSM-V).54 The DSM-V outlines a number of different personality disorders,
including ASPD.55
Both experts diagnosed Hammond with ASPD.56 Dr. Phenix described
ASPD as "generally always associated with some type of criminality, violating the
rights of others, being incarcerated, . . . a person who kind of ignores the rights of
others and kind of takes and does what they want to do."57 An ASPD diagnosis
alone is "[a]bsolutely not" an indicator that a person would qualify as an SVP.55
Dr. Goldberg opined that Hammond satisfied the legal criteria for a mental
abnormality or personality disorder because he experiences "a combination of
[ASPD]and hypersexuality:"59 Hypersexuality presents as "a high degree of
sexual drive which causes distress and dysfunction."6° Dr. Goldberg explained
that Hammond is "not concerned about violating others if he needs to be sexually
gratified.. . .[H]is[ASPD] predisposes him to commit criminal sexual acts."61
Hammond's own testimony aligns with Dr. Goldberg's, and both are
sufficient to support a legal finding that Hammond has a statutory "personality
disorder." For Hammond,feelings of boredom, loneliness, or anger can trigger
54 RP (July 17, 2017) at 509 (testimony of Dr. Phenix). 55 Id. 56 RP (July 17, 2017) at 500-01; RP (July 24, 2017) at 1274-75. 57 RP (July 17, 2017) at 509. 56 RP (July 24, 2017) at 1276 (testimony of Dr. Goldberg). 59 Id. at 1233. 60 Id. at 1287. 61 Id. at 1277.
14 No. 77287-2-1/15
sexual behavior. Hammond said he felt "frustration" due to loneliness before
"decid[ing] on the spot" to rape a stranger.62 Until he saw his victim, Hammond
"wasn't thinking about actually having sex with anybody or raping anybody."63
Hammond thinks "something is wrong with me" because he "tend[s] to want to use
sex as a coping skill," reacts impulsively to situations, struggles to control his
anger, and has an overall lack of emotional control that "played a factor" in
committing rape and indecent liberties.64 Dr. Phenix also testified that Hammond
"still [has] issues with anger management"66 and dysfunctional coping skills that
impair his ability to identify and solve problems.66 Overall, the testimony from
Hammond, Dr. Phenix, and Dr. Goldberg established that Hammond's ASPD
diagnosis and strong sex drive resulted in his ongoing struggle to cope with
ordinary feelings like boredom, anger, and loneliness, which could result in future
acts of sexual violence.
Additionally, both experts testified about scientifically valid actuarial data
from the Static-99R67 showing with "moderate predictive accuracy" that Hammond
has an absolute chance of 42.2 percent of reoffending within five years if
62 RP (July 26, 2017) at 1617. 63
64 Id. at 1658-59. 65 RP (July 17, 2017) at 597. 66 Id. at 563. 67 The Static-99R is a scientifically valid tool used to measure the statistical likelihood of future sex offenses, both violent and nonviolent, by convicted sex offenders. Id. at 543, 548-49 (testimony of Dr. Phenix).
15 No. 77287-2-1/16
released.68 But Hammond has a 99 percent chance of reoffense following release
when compared to other sex offenders.68
Given Dr. Goldberg's clinical diagnosis, Hammond's testimony, and the
uncontested actuarial data, a rational fact-finder could conclude beyond a
reasonable doubt that Hammond has a statutory "personality disorder" that makes
him more likely to engage in predatory acts of sexual violence. The State
demonstrated he had a pervasive and "enduring pattern of inner experience and
behavior that deviates markedly from the expectations of [his] culture," which
initially manifested when Hammond molested his siblings at 13, continued for
years thereafter as evinced by him committing rape around age 18 and voyeurism
at 21, and continues to impair Hammond's ability to function typically.
Consequently, substantial evidence supports the jury's finding that Hammond has
a statutory personality disorder that makes it likely he will engage in predatory acts
of sexual violence if not confined.
WE CONCUR:
,
68 Id. at 550 (testimony of Dr. Phenix); RP (July 25, 2017) at 1348 (testimony of Dr. Goldberg)i 89 RP (July 25, 2017) at 1350 (testimony of Dr. Goldberg).