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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Detention of No. 77812-9-1
DIVISION ONE FRANKLIN DAVID ABELLERA UNPUBLISHED OPINION
FILED: August 12, 2019
CHUN, J. — In 1980 and 1981, Franklin Abellera committed numerous sex
offenses against multiple women. In 1981, he pleaded guilty to rape in the
second degree, indecent liberties with forcible compulsion, assault in the second
degree, and burglary in the first degree. He then spent seven years at an
inpatient sex offender treatment program. After his release, in 2009, he
committed another sex offense, resulting in a 2010 guilty plea to rape in the third
degree and assault in the second degree.
Given Abellera's history, the State sought to have him committed as a
sexually violent predator (SVP). The matter proceeded to trial, where the State's
expert witness estimated that Abellera had committed 31 to 35 rapes and
attempted rapes. The expert opined that Abellera would not be able to control
his urge to force a woman into nonconsensual sex if presented with the
opportunity. The defense's expert testified that Abellera did not have a mental No. 77812-9-1/2
abnormality and that the facts of the 2009 offense suggested an "opportunistic
crime" as opposed to Abellera lacking control.
A jury found Abellera to be an SVP, and the trial court ordered him civilly
committed. On appeal, Abellera raises a number of evidentiary issues and
challenges the sufficiency of the State's evidence to prove that he is an SVP.
For the reasons discussed herein, we affirm. I. BACKGROUND
In 1981, the State charged Abellera with 10 sex offenses committed
against six different women. Abellera pleaded guilty to burglary in the first
degree, indecent liberties with forcible compulsion, assault in the second degree,
and rape in the second degree. The trial court suspended Abellera's sentence
on the condition that he complete an inpatient sex offender treatment program at
Western State Hospital. In 1989, program staff recommended that the court
determine Abellera successfully completed the program and release him.
In April 1990, after his discharge from the program, Abellera began a job
at a bakery. During this time, Abellera engaged in behavior that increased the
risk of reoffending—such as consuming pornography, drinking alcohol, and hiring
prostitutes.
In 2009, Abellera drove to a high prostitution area to hire a prostitute.
A woman, K.W., approached Abellera and asked him for a ride. Once K.W. was
in the car, Abellera drove to a dead-end street and raped her.
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On May 27, 2010, Abellera pleaded guilty to rape in the third degree and
assault in the second degree. The court sentenced Abellera to five years'
imprisonment.
On September 11, 2014, while Abellera was serving his sentence, the
State filed a Petition for Commitment as a Sexually Violent Predator.
Abellera's SPV trial began in 2017. The State presented an expert,
Dr. Dale Ray Arnold, who diagnosed Abellera with "other specified paraphilic
disorder" and antisocial and avoidant personality traits that exacerbated his
disorder. Dr. Arnold summarized the details of six sexual assaults Abellera
committed in the 1980s and estimated that, in total, Abellera had committed 31 to
35 rapes and attempted rapes. In Dr. Arnold's opinion, Abellera had a mental
abnormality such that he would not be able to control his urge to force a woman
into nonconsensual sex if presented with the opportunity in the future.
Abellera presented an expert, Dr. Joseph Plaud, who testified that
Dr. Arnold's diagnosis was "made up." Dr. Plaud additionally stated that Abellera
believed K.W. was a prostitute at the time of the assault. Dr. Plaud opined that
the 2009 offense differed so significantly from the 1980s offenses that it did not
demonstrate a mental abnormality or lack of volitional control.
The jury reached a verdict finding Abellera to be an SVP. The trial court
issued an Order of Commitment.
Abellera appeals.
3 No. 77812-9-1/4
II. ANALYSIS A. Due Process
Abellera argues the trial court violated his due process right to present
evidence in his defense by prohibiting certain testimony by Dr. Plaud and by
preventing a Community Corrections Officer(CCO)from testifying. The State
contends the trial court exercised sound discretion in excluding the evidence
under ER 401, ER 402, and ER 403. We agree with the State as to the
testimony of both Dr. Plaud and the CCO.
1. Dr. Plaud's Testimony
Abellera claims the trial court violated his right to due process by
preventing Dr. Plaud from stating facts that supported his opinion that Abellera
believed K.W. was a prostitute.1 The State asserts that Abellera waived the
issue and that his claim fails on the merits. We agree with the State.
At trial, the State moved to prevent Abellera from trying to impeach K.W.'s
account of the rape through expert testimony. In response, defense counsel
stated, "I don't know that that's anyone's intent to impeach this woman or attack
her credibility, but there are certainly some facts in the case that I think probably
everybody agrees are the facts that are relevant and do need to come out." The
court ruled that Abellera could not argue that he did not rape and assault K.W.,
1 In his Opening Brief, Abellera stated that he wanted the trial court to admit the following facts: He believed that he had picked up a prostitute (K.W.) and was engaging in sex acts. Abellera then forced her out of the car because he thought her pimp had followed them. Abellera also "believed there was a video that showed [K.W.] removing her underwear before getting into his car."
4 No. 77812-9-1/5
but reserved ruling on whether he could raise other inconsistencies and impeach
through expert testimony.
The State then argued that, because Dr. Plaud had accepted the "official
version"2 of the facts, the court should not allow him to testify that the rape did
not occur. Abellera said that while Dr. Plaud would testify that the factual
circumstances of the 2009 offense do not suggest Abellera had a mental
abnormality, "he's not going to speculate and offer any extra version because he
wasn't there." The court ruled that Dr. Plaud could not challenge K.W.'s report of
the assault because it constituted speculation: As it relates to the defense expert, I am going to grant the State's motion. I am not going to let the defense expert essentially impugn the credibility of K.W. because I think that's pure speculation on his part. I don't think it's relevant under 401 and 402. And under 403, I think there's little to no probative value that would be outweighed by prejudice to the State. With that said, if there are parts of this -- that incident, the 2009 incident, that the expert felt was important because it was different than the prior incidents, and that factored into his opinions, I think he should be allowed to do that. But I'm not going to -- for example, he is not going to be allowed to say, you know, K.W. reported this, but that just doesn't make sense. I don't think that's appropriate. That's speculation. It is not relevant.
2 The official version of the facts refers to those facts that Abellera admitted to in the Statement of Defendant on Plea of Guilty to Felony Sex Offense: On 09/13/2009 in King County, WA I engaged in sexual intercourse w/ K.W. who I was not married to and she did not consent to sexual intercourse with me and her lack of consent was clearly expressed by her (K.W.'s) words and conduct. I did this by digitally penetrating her vagina despite her telling me to "stop."
5 No. 77812-9-1/6
a. Waiver
The State argues that Abellera waived any challenge to the court limiting
Dr. Plaud's testimony because he stated at trial that no evidence supported K.W.
being a prostitute and that whether she was a prostitute was irrelevant. Abellera
claims that when he made those statements, he was merely trying to clarify that
he would not attempt to impeach K.W. through Dr. Plaud. We determine
Abellera waived the issue.
Abellera stated multiple times at trial that he would not elicit facts as to
whether K.W. was a prostitute. Specifically, counsel told the court that the
defense lacked evidence that K.W. was a prostitute and the issue was irrelevant: We have no intent of eliciting testimony that this woman was a prostitute. There's no -- we have no evidence that she was a prostitute. It's not really relevant to the issue of whether or not our client committed offense against her and whether or not being a prostitute makes our client more or less likely to be a sexually violent predator, because, really, that's the only issue here. And so we're not intending to infer one way or another that that is actually true with respect to this woman. But I do think that . . . number one is the case can't be sanitized. It is what it is. The facts, to a large extent, are what they are, even based on K.W.'s account.
Additionally, when discussing whether Dr. Plaud based his opinion on the
"official version" of the assault or Abellera's account, defense counsel again said
that the issue of whether K.W. was a prostitute was irrelevant: We anticipate based on our expert's deposition that he is going to come in and, at the end of the day, admit that, yeah, I mean, we have to go by, to a large extent, the official facts. And no matter what, it wouldn't have changed his opinion. So we're not trying to get in information of whether she was a prostitute or not.
6 No. 77812-9-1/7
But that's really all I had to say about the prostitution issue. We don't intend to infer anything about this woman because it's not relevant to whether or not Mr. Abellera has a mental abnormality, and it's really not relevant to his risk or things that this jury really has to consider. So I think, to a large extent, we're all in agreement on that issue.
The defense's briefing was also consistent with its position that it did not intend to
elicit facts that K.W. was a prostitute.
"A party may not remain silent as to a claimed error during trial and raise
its objection for the first time on appeal." State v. Teuber, 109 Wn. App. 640,
644, 36 P.3d 1089 (2001)(citing State v. Guloy, 104 Wn.2d 412, 421, 705 P.2d
1182 (1985)).
Based on the record, Abellera never raised the issue, on due process
grounds or otherwise, that the trial court should allow Dr. Plaud to testify to the
facts that supported Abellera's belief that K.W. was a prostitute. Indeed, he
expressly stated that he had no evidence that K.W. was a prostitute and that the
issue was irrelevant. Abellera does not argue in his briefing that the alleged error
in limiting the testimony constitutes a manifest injustice or satisfies any of the
other criteria under RAP 2.5, such that we should allow him to raise the error for
the first time on appeal. Accordingly, we conclude Abellera waived any objection
to the trial court's ruling limiting Dr. Plaud's testimony.
b. Relevance
Assuming no waiver, Abellera's argument still fails on the merits. He
contends that the trial court violated his right to due process when it limited
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Dr. Plaud's testimony. The State argues the court properly limited Dr. Plaud's
testimony based on lack of relevance. Because the trial court did not manifestly
abuse its discretion in limiting Dr. Plaud's testimony on relevance grounds, we
determine the trial court properly excluded it.
We review a trial court's ruling on the admissibility of evidence for a
manifest abuse of discretion. State v. Johnson, 185 Wn. App. 655, 670, 342
P.3d 338 (2015). We will overturn the trial court's determination on relevance
only if no reasonable person would adopt the same view as the court. Johnson,
185 Wn. App. at 670-71.
A court may admit only relevant evidence. ER 402. Under ER 401,
evidence is relevant if it has "any tendency to make the existence of any fact that
is of consequence to the determination of the action more probable or less
probable than it would be without the evidence." A trial court's exclusion of
irrelevant evidence does not violate a defendant's right to due process. In re Det.
of Turav, 139 Wn.2d 379, 403-04, 986 P.2d 790 (1999).
Here, Dr. Plaud stated in his deposition that he was "assuming for the
purposes of risk evaluation that[AbeHera raped K.W.]" and that he did not base
his evaluation on Abellera's version of the events. Because Dr. Plaud based his
assessment on the "official version" of the facts, any facts to the contrary were
irrelevant. On appeal, Abellera argues the court prevented him from seeking to
admit facts to support his belief that K.W. was a prostitute, but the particular facts
suggested a rape did not occur and contradicted the "official version" of the facts.
8 No. 77812-9-1/9
These were therefore irrelevant. We conclude that the trial court did not err by
excluding the facts under ER 401 and ER 402.
2. CCO Testimony
Abellera next claims the trial court erred by preventing a CCO, who is an
employee of the Department of Corrections (DOC),from testifying that the area
where Abellera picked up K.W. was a high prostitution area. The State contends
the court correctly barred the testimony on relevance and hearsay grounds. We
determine the court did not abuse its discretion by excluding the testimony.
At trial, the State moved to preclude CCO Conaty, whom the DOC had
designated as a CR 30(b)(6) witness, from testifying as to the high rate of
prostitution in the area where Abellera picked up K.W. The State claimed that
ER 401, ER 402, and ER 403 barred the evidence. It additionally argued
testimony was hearsay, because the CCO obtained the information from the Des
Moines Police Department.
Abellera argued the evidence was relevant for two reasons. First, he
contended that it went to his state of mind because it made his belief that K.W.
was a prostitute more reasonable. Second, he said that, because the DOC
would not allow Abellera to go to high prostitution areas once released, it showed
a reduced future risk of committing the same crime. Additionally, Abellera
argued that CCO Conaty's testimony was not hearsay because it constituted an
admission of a party opponent under ER 801(d)(2).
9 No. 77812-9-1/10
The trial court ruled the testimony was not relevant to show Abellera's
state of mind because the defense did not show "some bridge between what
Mr. Abellera thought and then [sic] DOC's statement." For the purpose of
showing that the DOC's supervision would not let Abellera go to high prostitution
areas, the court decided that even if the testimony was relevant, ER 403
precluded it because unfair prejudice and confusion outweighed the minimal
probative value. The court further ruled that the statement was inadmissible
hearsay because the State of Washington, not the DOC, was the party opponent.
a. Relevance
In an SVP trial, "evidence is relevant only if it increases or decreases the
likelihood that a fact exists that is consequential to the jury's determination
whether the respondent is a sexually violent predator." In re Detention of West,
171 Wn.2d 383, 397, 256 P.3d 302(2011). Juries consider three elements when
determining whether a respondent constitutes an SVP: (1)that the respondent has been convicted of or charged with a crime of sexual violence, (2) that the respondent suffers from a mental abnormality or personality disorder, and (3) that such abnormality or disorder makes the person likely to engage in predatory acts of sexual violence if not confined in a secure facility.
West, 171 Wn.2d at 397 (internal quotations and citations omitted).
At trial, Abellera argued that his belief that K.W. was a prostitute showed
he sought consensual sex and therefore indicated he did not have a mental
abnormality of obtaining arousal through nonconsensual sex. But as the trial
court noted, while whether Abellera believed K.W. was a prostitute may be
10 No. 77812-9-1/11
relevant, the defense did not show a connection between the DOC considering
the location as being a high prostitution area and Abellera's state of mind.
Accordingly, the evidence was not relevant for this purpose. We conclude the
trial court did not abuse its discretion in determining that the CCO Conaty's
testimony was not relevant to show Abellera's state of mind.
b. ER 403
As to CCO Conaty's testimony that the DOC would prevent Abellera from
returning to where he picked up K.W., the trial court ruled that ER 403 barred it.
Under ER 403, relevant "evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay, waste of time,
or needless presentation of cumulative evidence." Again, we review a trial
court's ruling on the admissibility of evidence for a manifest abuse of discretion.
Johnson, 185 Wn. App. at 670.
The court did not abuse its discretion by determining that the prejudicial
impact of the evidence and the risk of confusing the jury outweighed the
probative value of the evidence. Because the issue at trial was whether Abellera
had a mental abnormality that makes him likely to reoffend, whether he could
return to a single high prostitution area when released was only minimally
relevant. That the defense put on other testimony that the DOC would monitor
Abellera with an ankle bracelet and not permit him to go to areas of high
prostitution further decreased the probative value of the evidence. Moreover,
11 No. 77812-9-1/12
admitting the testimony risked confusing the jury by potentially suggesting that
issues for them to decide at the trial included the terms of Abellera's DOC
supervision, whether the area was known for high prostitution, and whether K.W.
was a prostitute. Accordingly, the trial court did not err by refusing to allow CCO
Conaty's testimony.3
B. Prejudicial Evidence
Abellera contends the trial court erred by admitting several pieces of
evidence that it should have excluded as unfairly prejudicial under ER 403. The
State argues the court properly admitted the evidence. We address each
argument in turn.
We review a trial court's ruling on the admissibility of evidence for a
manifest abuse of discretion. Johnson, 185 Wn. App. at 670. We will overturn
the trial court's determination on relevance or prejudice only if no reasonable
person would adopt the same view as the court. Johnson, 185 Wn. App. at 670-
71.
Again, under ER 403, relevant "evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury, or by considerations of undue delay, waste of
time, or needless presentation of cumulative evidence."
3 The trial court ruled alternatively that CCO Conaty's testimony constituted inadmissible hearsay. The parties' briefing focuses on this issue. But because this was an alternative ground for the court's decision to exclude the testimony, and we affirm the court's decisions under ER 401, ER 402, and ER 403, we do not address the hearsay issue. Notably, however, Abellera does not cite any legal authority to support his contention that because the State of Washington is a party, all its agencies qualify as party opponents for the purposes of ER 801(d)(2).
12 No. 77812-9-1/13
1. Victim Testimony
Abellera claims the trial court erred by admitting victim testimony
regarding his conviction for criminal trespass. The State contends that case law
clearly allows such evidence in SVP trials. We agree with the State.
Here, the victim in the criminal trespass matter, S.M., testified at his SVP
trial. She stated that she was asleep at her friend's apartment when Abellera
entered the place without permission. Abellera approached her, put his head
about four inches away from hers, and told her to be quiet. S.M. screamed and
Abellera ran off. The police apprehended Abellera approximately 15 to 30
minutes later. Dr. Arnold testified that the crime was sexually motivated.
Our Supreme Court has held that the testimony of a victim of a sexually
motivated offense is relevant in an SVP proceeding. Turav, 139 Wn.2d at 401.
Even though victim testimony often has a substantial impact on the jury, ER 403
does not necessarily exclude it because "[i]n assessing whether an individual is a
sexually violent predator, prior sexual history is highly probative of [their]
propensity for future violence." In re Pers. Restraint of Young, 122 Wn.2d 1, 53,
857 P.2d 989 (1993). Victim testimony is admissible "not solely to prove the
element of prior conviction, but rather to assess the mental state of the alleged
SVP, the nature of [their] sexual deviancy, and the likelihood that [they] will
commit a crime involving sexual violence in the future." Turav, 139 Wn.2d at
401.
13 No. 77812-9-1/14
Because the State presented testimony that the crime was sexually
motivated, the details of Abellera's criminal trespass were probative of whether
he would commit a future sexual offense. See Young, 122 Wn.2d at 53. We
determine the trial court did not manifestly abuse its discretion by admitting the
testimony.
2. Precursor Treatment
Abellera next argues that the trial court erred by admitting testimony
relating to his participation in precursor treatment,4 because it was irrelevant and
prejudicial. The State claims that the trial court properly admitted the evidence
because it was relevant to Abellera's risk of reoffending.5 We conclude the trial
court did not manifestly abuse its discretion by admitting the evidence.
At trial, the State sought to elicit testimony that Abellera had started
precursor treatment shortly before trial. Abellera argued the court should exclude
the evidence as irrelevant. The court ruled that the evidence was relevant and
admissible under ER 403. It determined that "[Abellera's] decision to only
engage in this precursor treatment and the timing of it. . . is relevant to the
issues of his status and being treated or not treated, and whether he's likely to
re-offend."
4 Precursor treatment refers to a course offered at the Special Commitment Center(SCC) as a prerequisite to sex offender treatment, which aims to prepare participants for such treatment. 5 The State also claims that Abellera waived this issue because below he only objected to the admission of evidence regarding "[his]'non-participation in sex offender treatment at the [Special Commitment Center].- However, the record shows Abellera argued that his "start[ing] down the road to treatment on the eve of trial" was not relevant. Accordingly, he did not waive this issue.
14 No. 77812-9-1/15
Dr. Arnold then testified that though Abellera could have immediately
enrolled in precursor treatment when he first entered the Special Commitment
Center(SCC) in 2014, he instead waited to do so until shortly before trial. He
said Abellera being at the SCC for over three years before attempting to start
treatment was "a big red flag because he's really wasted a lot of time that he
could have been spending making sure that he's safer when he's released to the
community or reduces his risk to re-offend." The State also admitted a progress
note from his precursor treatment that said he displayed treatment-inhibiting
behavior..
"[W]hen offered for the purpose of showing the respondent has a mental
abnormality or a personality disorder, evidence of the SCC's treatment programs,
confinement conditions, and transitional facilities is irrelevant and inadmissible,
unless the testimony relates the respondent's treatment history." West, 171
Wn.2d at 398. Evidence regarding a respondent's past treatment is relevant to
show that the respondent may be less likely or less willing to control their mental
abnormality if living freely in the community—which relates to the likelihood of
reoffending. West, 171 Wn.2d at 397. "[T]he State is free to offer evidence of
the treatment a sexual offender should get and to compare that with the
treatment the respondent has actually received." West, 171 Wn.2d at 398.
In this case, the State used the precursor treatment evidence for two
purposes. First, it argued that Abel!era's risk of reoffending was higher because
he had gone three years without receiving any treatment. Second, the State
15 No. 77812-9-1/16
contended the timing of Abellera starting treatment, namely shortly before trial,
suggested that he may be disingenuously pursuing the treatment. Accordingly,
the evidence was admitted for the proper purpose of addressing whether
Abellera would reoffend.6 Given the probative value of the evidence, the trial
court did not manifestly abuse its discretion by admitting it.
3. Static-99R
Abellera next contends that the court admitted impermissible profile
testimony by Dr. Arnold when he stated that the Static-99R underestimates
recidivism. He asserts that while such actuarial assessments are admissible,
Dr. Arnold's testimony constituted unduly prejudicial testimony because he "drew
a direct line between the Static-99's underestimation of risk due to undetected
offending, and the fact that Mr. Abellera committed undetected offenses." The
State claims the trial court properly admitted the testimony under ER 403. We
determine the trial court did not manifestly abuse its discretion by admitting the
evidence.
A Static-99R constitutes "a collection of ten variables that have been
shown through research to be related to sexual offense recidivism." It operates
6 Abellera also relies on In re Det. of Post, 170 Wn.2d 302, 241 P.3d 1234 (2010), to argue that the trial court should not have admitted evidence that he had begun precursor treatment. But in that case, the Court limited its review to "the admissibility of evidence about the content of SCC programs in which Post had not yet participated and the admissibility of evidence that Post could later be released to a less restrictive alternative if he were committed." 170 Wn.2d at 310. The Supreme Court noted that "[i]nsofar as the State's argument pertains to SCC treatment already undergone by Post, that question is not before us and we assume, as the Court of Appeals held, that such evidence is relevant and otherwise admissible." Post, 170 Wn.2d at 313. Thus, because Post did not address the admissibility of evidence regarding a respondent's past treatment, the case is inapposite.
16 No. 77812-9-1/17
as an "actuarial risk assessment tool for assessing risk in sex offenders." Both
experts used the Static-99R to predict Abellera's risk of reoffending if not
confined at the SCC.
At trial, Dr. Arnold explained that because the Static-99R measures group
rates of re-offense, it was not necessarily predictive of Abellera's risk of re-
offending. He stated that the Static-99R might underestimate Abellera's risk of
re-offending because it does not take undetected sexual offenses into account.
Dr. Arnold explained that about two thirds of Abellera's crimes were undetected.
Generally, "profile testimony that does nothing more than identify a person
as a member of a group more likely to commit the charged crime is inadmissible
owing to its relative lack of probative value compared to the danger of its unfair
prejudice." State v. Braham, 67 Wn. App. 930, 936, 841 P.2d 785 (1992). Our
Supreme Court, however, has held that "actuarial assessments, which satisfy the
requirements of ER 403, ER 702, and ER 703 are admissible and not profile
evidence." In re Det. of Thorell, 149 Wn.2d 724, 758, 72 P.3d 708 (2003).
Unlike Abellera claims, Dr. Arnold 's testimony that the Static-99R
underestimates the rate of recidivism due to undetected crimes did not profile
him as an SVP because of his undetected crimes, but rather went to the issue of
whether Abellera would reoffend in the future. Though testimony regarding the
future dangerousness of SVPs is prejudicial, "[t]he probative value of this
testimony is high and directly relevant to whether an individual should be
committed as a sexually violent predator." Thorell, 149 Wn.2d at 758. Based on
17 No. 77812-9-1/18
the high probative value of such evidence, the Supreme Court has "already
rejected challenges to predictions of dangerousness under ER 403." Thorell, 149
Wn.2d at 758. Thus, under the case law, the testimony regarding how accurately
the Static 99-R predicted Abellera's risk of reoffending had probative value that
outweighed any prejudicial impact. We conclude that the trial court did not
manifestly abuse its discretion by admitting the testimony.
4. Use of SVP Criteria for Selection of "High Risk" Norms
For purposes of the Static-99R, both experts agreed that Abellera scored
an 8. The next step for the experts was to compare how a score of 8 "rates in
comparison to other sex offenders in terms of percentile," and then link that score
to recidivism rates. To conduct this comparison, the experts placed Abellera into
one of two groups: the routine group or the high risk group. The experts
disagreed as to the group in which to place Abellera.
Over Abellera's objection, Dr. Arnold testified that he placed Abellera in
the high risk group, in part, because of "[t]he context of the referral." Dr. Arnold
stated that Abellera's referral for an SVP evaluation came from the End of
Sentence Review Committee, which only recommends a "very small subset of
individuals." Dr. Arnold later explained that the Committee recommends less
than five percent of sexual offenders for civil commitment.
Abellera argues that the court should have excluded this testimony as
unduly prejudicial because it conveyed to the jury that the State believed Abellera
"is one of the 5% of most dangerous sex offenders in the state." The State
18 No. 77812-9-1/19
claims the court properly allowed Dr. Arnold to testify as to why he placed
Abellera in the high risk group, especially given that the defense's expert had
placed him in the routine group. Though this issue presents a closer question,
we determine the court properly admitted the testimony.
Here, the testimony related to Dr. Arnold's assessment of Abellera's future
risk. Additionally, this testimony carried heightened probative value because
Dr. Plaud disagreed that Abellera was in the high risk group. Because experts
use the Static-99R to estimate future risk for all sexual offenders, the referral
showed that Abellera may fall into the high risk group. Though the testimony
prejudiced Abellera, it was not unduly so because the State did not use it to
argue that this conclusively meant that he was an SVP. Instead, it used the
evidence to explain Dr. Arnold's assessment. Dr. Arnold additionally testified that
he placed Abellera in the high risk group based on his score on the structured
risk assessment-forensic version (SRA-FV).7 The trial court did not manifestly
abuse its discretion by admitting the testimony.
The State additionally contends that, assuming the court erred by
admitting the testimony, the error was harmless because the testimony was brief,
limited in scope, and not unduly prejudicial when considering the entirety of the
record. Indeed, the jury heard testimony that Dr. Arnold believed Abellera was of
a small percentage of rapists who suffered from a paraphilic disorder, and that is
7 The SRA-FV is an "abstract framework for psychological factors liable to predispose offenders to repeated sexual offending." David Thornton & Raymond A. Knight, Construction and Validation of SRA-FV Need Assessment, 27 SEXUAL ABUSE 360, 361 (2015).
19 No. 77812-9-1/20
why he diagnosed Abellera as an SVP. Dr. Arnold additionally testified, without
objection, that Abellera had committed approximately 31 to 35 rapes and
attempted rapes. Abellera admitted to raping six women in the 1980s and K.W.
in 2009. Given this testimony, the jury could have already inferred that Abellera
belonged to a small subset of rapists that the State considered to be especially
dangerous. See West, 171 Wn.2d at 410-11 (evidentiary error prejudices
defendant if, within reasonable probabilities, it materially affects outcome of trial).
Furthermore, jury instruction number 4 provided: When Dr. Arnold and Dr. Plaud testified, 1 informed you that some information was admitted as part of the basis for [Dr. Arnold's and Dr. Plaud's] opinions, but may not be considered for other purposes. You must not consider this testimony as proof that the information relied upon by the witness is true. You may use this testimony only for the purpose of deciding what credibility or weight to give the witness's opinion.
(Emphasis added.) Jurors are presumed to follow the court's instructions. State
v. Kalebaugh, 183 Wn.2d 578, 586, 355 P.3d 253(2015). We thus presume that
the jury did not consider the testimony as proof that Abellera was an SVP, but
rather considered it as a basis for Dr. Arnold's assessment. Accordingly, any
error in admitting the testimony was harmless.
5. Conduct Other Than Sexual Offending
Abellera claims ER 403 prevented the court from admitting portions of his
deposition relating to his past misconduct as an employee. The State asserts
that the evidence was relevant because it went to Dr. Arnold's diagnosis of
20 No. 77812-9-1/21
Abellera having antisocial and avoidant personality traits. We determine the
court did not manifestly abuse its discretion by admitting the evidence.
In pretrial motions, Abellera moved to exclude portions of his deposition
where the State inquired into write-ups he received while working at the bakery.
He contended that whether he was a good employee was not relevant to the
issue of whether he constitutes an SVP. The court admitted the work history.
At trial, the State cross-examined Abellera on his work history.
Specifically, the State asked about write-ups he received from his employer for
threatening a coworker by saying he would "kick his ass," for shoving a coworker
and using a racial slur, for "slugg[ing]" a coworker in the shoulder, for shoving a
coworker, and for using abusive language towards a coworker. These incidents
occurred in 1995, 1996, 2000, 2002, and 2009. The court additionally admitted
the write-ups as exhibits.
The main issue at trial was whether Abellera was an SVP, i.e., whether he
had a mental abnormality that prevented him from controlling his actions.
Dr. Arnold testified that Abellera had an "other specified paraphilic disorder"
involving interest in nonconsensual sex and antisocial and avoidant personality
traits that exacerbated his paraphilic disorder. Dr. Arnold connected Abellera's
misconduct at work to his antisocial and avoidant personality traits by stating that
the traits are manifested by the "failure to conform to social norms with respect to
lawful behaviors." Dr. Arnold further explained that Abellera's attempt to
minimize his issues at work despite more than 20 instances of misconduct on his
21 No. 77812-9-1/22
records showed deceitfulness—an antisocial trait. Thus, Abellera's work history
was relevant as to whether he would reoffend, because it related to whether he
had personality traits that exacerbated his diagnosed paraphilic disorder. We
determine that the trial court did not abuse its discretion by admitting the
C. Rebuttal Testimony
Abellera claims the trial court improperly allowed the State to present
rebuttal testimony because he did not raise any new issues during the
presentation of his defense. The State contends the court's decision was within
its sound discretion. We agree with the State.
After Dr. Plaud testified, the State asked to call Dr. Arnold to give rebuttal
testimony. Abellera objected, asserting that because Dr. Plaud's testimony was
consistent with the opinions he gave in his deposition, his defense did not raise
new matters that would enable the State to present rebuttal testimony. The State
argued that the court should allow its expert to address the topics discussed by
Dr. Plaud. Although the State admitted that it approached some of these topics
with its expert during its case in chief, it stated it did not fully explore them
because it did not know precisely how Dr. Plaud would testify when giving his
opinions.
The court allowed the rebuttal testimony. It stated that to the extent the
State strategically chose to not introduce evidence that the respondent decided
to present, it was well within the State's rights to respond.
22 No. 77812-9-1/23
In his rebuttal testimony, Dr. Arnold responded to Dr. Plaud's claim that
his diagnosis was "made-up" by testifying to the psychological community's
consensus regarding the existence of his diagnosis. Dr. Arnold then explained
why he diagnosed Abellera with a paraphilic disorder despite such disorders
being difficult to diagnosis. He also testified about Dr. Plaud's critiques of the
SRA-FV. Dr. Arnold additionally addressed statements Abellera had made to
Dr. Plaud about his mother and Dr. Plaud's opinions that(1) anger motivated
Abellera's crimes,(2) Abellera's good behavior at the SCC suggested he would
not reoffend, and (3) a professional organization for experts on sex offenders did
things that Dr. Plaud did not approve of.
"[T]he question of admissibility of evidence on rebuttal rests largely on the
trial court's discretion, and error in denying or allowing it can be predicated only
upon a manifest abuse of that discretion." State v. White, 74 Wn.2d 386, 395,
444 P.2d 661 (1968).
Courts may admit rebuttal evidence to enable a plaintiff to respond to a
new matter raised by the defense. White, 74 Wn.2d at 394. Though rebuttal
evidence should not be simply a recitation of evidence in chief, "[f]requently true
rebuttal evidence will, in some degree, overlap or coalesce with the evidence in
chief." White, 74 Wn.2d at 395.
Here, the court acted within its discretion when ruling to allow the rebuttal
evidence. Though Dr. Arnold's rebuttal testimony did overlap somewhat with his
testimony during the State's case in chief, his testimony was largely in reply to
23 No. 77812-9-1/24
new matters raised during Dr. Plaud's testimony.8 Though the State had touched
on some of topics during Dr. Arnold's original testimony, on rebuttal it addressed
them in a manner that directly responded to Dr. Plaud's testimony. This was not ...
an instance where the rebuttal testimony was "simply a reiteration of evidence in
chief" or where the State intentionally withheld evidence merely to present the
evidence cumulatively at the end of the respondent's case. White, 74 Wn.2d at
394. We determine trial court did not manifestly abuse its discretion by
permitting the rebuttal testimony.
D. Argument Regarding Burden of Proof
Abellera argues that the court erred by not allowing him to argue a
presumption of non-commitment in his closing argument. He contends such a
presumption exists because the presumption of innocence is closely related to
the State's burden to prove a crime beyond a reasonable doubt, and the State
must similarly prove that a respondent is an SVP beyond a reasonable doubt.
But we have already rejected this argument. In In re Det. of Twining, we rejected
a jury instruction on a presumption of non-committal because SVP trials are not
criminal cases. 77 Wn. App. 882, 895, 894 P.2d 1331 (1995) overruled on other
grounds, In re Det. of Pouncv, 168 Wn.2d 382, 229 P.3d 678 (2010). Because
SVP trials are not criminal in nature, "criminal constitutional protections are not
applicable beyond those supplied in the statute and those granted in Young."
8 Abellera argues that Dr. Plaud did not raise new matters because Dr. Plaud had previously discussed these issues during his deposition. But Abellera cites no legal authority to support this proposition. We reject this argument.
24 No. 77812-9-1/25
Twining, 77 Wn. App. at 895 (citing RCW 71.09.060; Young, 122 Wn.2d at 47-
51). Because no presumption of non-committal exists in SVP trials, it does not
matter, as Abellera contends, that Twining addressed jury instructions while
below he sought to discuss the presumption in closing argument. Accordingly,
Abellera was not entitled to argue a presumption of non-commitment in his
closing argument. We decide that the trial court did not err by refusing to allow
him to do 50.9
E. Sufficiency of the Evidence
Finally, Abellera asserts that the State did not present sufficient evidence
to prove that he had a mental abnormality that resulted in a lack of volitional
control. The State claims Dr. Arnold's testimony alone sufficiently established
this element. We agree with the State.
As discussed above, the State must prove three elements beyond a
reasonable doubt for a jury to find a respondent constitutes an SVP: (1)that the respondent has been convicted of or charged with a crime of sexual violence, (2) that the respondent suffers from a mental abnormality or personality disorder, and (3) that such abnormality or disorder 'makes the person likely to engage in predatory acts of sexual violence if not confined in a secure facility.
West, 171 Wn.2d at 397 (internal quotations and citations omitted).
"In a sufficiency challenge, the evidence is viewed in the light most
favorable to the State, and all reasonable inferences from the evidence must be
9 Abellera also argues that this court should reverse his conviction under a cumulative error analysis. However, because we determine that the trial court did not err, or that any error was harmless, we reject this argument. See State v. Emery, 174 Wn.2d 741, 766, 278 P.3d 653 (2012)(one error); State v. Stevens, 58 Wn. App. 478, 498, 794 P.2d 38(1990)(no prejudicial error).
25 No. 77812-9-1/26
drawn in favor of the State and interpreted most strongly against the respondent."
In re Det. of Audett, 158 Wn.2d 712, 727, 147 P.3d 982(2006)(internal citation
omitted). Courts will uphold a commitment "if any rational trier of fact could have
found the essential elements beyond a reasonable doubt." Audett, 158 Wn.2d at
727-28.
Abellera argues that the State lacked sufficient evidence to meet only the
third element—i.e., that he had a mental abnormality or personality disorder
making him likely to engage in predatory acts of sexual violence if not confined in
a secure facility. Though evidence that the respondent has a mental abnormality
is insufficient to prove a serious lack of control, "a diagnosis 'when coupled with
evidence of prior sexually violent behavior and testimony from mental health
experts, which links these to a serious lack of control, is sufficient for a jury to find
that the person presents a serious risk of future sexual violence and
therefore meets the requirements." Audett, 158 Wn.2d at 728 (quoting Thorell,
149 Wn.2d at 761-62).
Here, the State claims Dr. Arnold's testimony was sufficient to establish
the third element beyond a reasonable doubt. At trial, Dr. Arnold testified that he
had diagnosed Abellera with "other specified paraphilic disorder" involving
interest in nonconsensual sex and antisocial and avoidant personality traits that
exacerbated his paraphilic disorder. Additionally, when viewing the facts in the
light most favorable to the State, it presented extensive evidence demonstrating
that Abellera could not control his urge to force women into nonconsensual sex.
26 No. 77812-9-1/27
Dr. Arnold approximated that Abellera had committed between 31 and 35 rapes
and attempted rapes. Furthermore, Abellera committed rape in 2009 despite
seven years of sex offender treatment and 20 years in the community without a
convicted sex offense. Though Abellera argues these 20 years in the community
show his ability to control himself, the jury could also have viewed this as
evidence, as Dr. Arnold opined, of a "stark example of how chronic this kind of
deviant sexual interest can be."
To further demonstrate Abellera's inability to exhibit control, Dr. Arnold
pointed to Abellera being unable to stop sexually assaulting women even though
he felt remorseful for doing so. Additionally, he stated that based on statements
Abellera had made that "rape is the very worst thing" you can do in society,
Abellera continued to commit the assaults even though it violated his own moral
code. Dr. Arnold opined that Abellera could not control his urge to commit sexual
assault if presented with the opportunity. Given this record and viewing the
evidence in the light most favorable to the State, we conclude sufficient evidence
exists to establish the third element.
Affirmed.
WE CONCUR:
404-ivi 27