In Re The Detention Of: Jonathan Parsons ( 2015 )

ED
FILED
COURT OF APPEALS
DIVISION I1
2015 AUG I I AM 9: 12
STATE OF WASHINGTON
IN THE COURT OF APPEALS OF THE STATS N
DIVISION II
IN RE THE DETENTION OF: No. 46889 -1 - II
JONATHAN PARSONS,
Petitioner.
UNPUBLISHED OPINION
SUTTON, J. — Jonathan Parsons appeals the trial court' s order committing him as a sexually.
violent predator ( SVP) to the Special Commitment Center ( SCC). He argues that the trial court
1) erred in admitting evidence of his personality disorder in order for the jury to determine whether
Parsons suffers from a mental abnormality for civil commitment under chapter 71. 09 RCW,
2) erred in admitting testimony under ER 702 by the State' s expert on Static -99R and Static -
2002R actuarial instruments used to assess sexual recidivism, without first conducting a Frye1
hearing when the expert' s methods had not been scientifically validated nor were generally
accepted in the relevant scientific community, and ( 3) abused its discretion and prejudiced him
when it precluded the parties from referring to the SCC commitment as " incarceration." Because
1) Parsons failed to object to or strike the personality disorder evidence at trial, ( 2) the expert' s
actuarial instruments were not a " novel" scientific method requiring a Frye hearing and the
expert' s testimony was admissible under ER 702, and ( 3) Parsons fails to show prejudice resulting
1 Frye v. United States, 293 F. 1013 ( D. C. Cir. 1923).
1
from the trial court' s exclusion of the term " incarcerated," we affirm the trial court' s order
committing him as an SVP to the SCC.
FACTS
I. PARSONS' S SEXUALLY VIOLENT OFFENSE HISTORY
On February 27, 2012, the State petitioned to commit Parsons as an SVP under chapter
71. 09 RCW based on Parsons' s sexually violent offense history. At the age of 14, Parsons
committed his first sexually violent offense when he handcuffed and sexually abused an 11 - year-
old neighbor. Parsons was charged with and pled guilty to first degree child molestation and
received 30 days in juvenile detention and 12 months of community supervision. At age 18, he
raped a 14 -year- old. He was charged with and pled guilty to third degree rape and was sentenced
to 18 months in prison and 24 months of community custody. At age 22, while still on community
supervision, Parsons sexually assaulted and then, a few days later, raped a 13 - year- old boy. He
was charged with and pled guilty to second degree child rape and second degree child molestation
and was sentenced to 175 months in prison and 36 months of community custody.
II. PRE- TRIAL RULINGS
The trial court heard testimony by Dr. Putnam, the State' s expert, regarding his initial
evaluation to determine whether the State had established probable cause that Parsons would
engage in predatory sexually violent acts if not confined in a secure facility. The trial court
determined that the State met its burden and the case was set for a jury trial.
Parsons filed a Frye and ER 702 motion to exclude the opinions of Dr. Putnam. First,
Parsons contended that Dr. Putnam' s use and reliance on the Structured Risk Assessment -Forensic
Version ( SRA -FV) was not a scientifically validated actuarial instrument to determine the
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likelihood of sexual re -offense, and was therefore unreliable and failed to satisfy
ER 702. Parsons also argued that the SRA -FV failed to satisfy Frye because it was not generally
accepted in the scientific community. Parsons also offered the declaration of Brian Abbott, Ph.D.,
who concluded that the SRA -FV had not attained general acceptance in the scientific community.
Joseph Plaud, Ph.D., who would also testify for Parsons at trial, concluded that peer reviewed
studies demonstrated that the SRA -FV was not reliable nor generally accepted in the scientific
community.
The trial court, relying on In re Det. ofRitter,2 determined that any testimony regarding the
SRA -FV required a Frye hearing. Based on the trial court' s ruling, the State agreed not to present
evidence regarding the SRA -FV.
In Parsons' s second Frye and ER 702 motion related to Dr. Putnam' s placement of Parsons
in the " High Risk Need" reference group' to measure his likelihood of recidivism, Parsons argued
that Dr. Putnam' s reliance on logical inference to select Parsons' s appropriate reference group
using actuarial instruments, the Static -99R and Static 2002R, was not reliable and was not
generally accepted in the scientific community. Clerk' s Papers ( CP) at 148. To support these
claims, Parsons included Dr. Abbott' s declaration and several scholarly articles criticizing Dr.
2
I reDet. of Ritter, 177 Wn. App. 519, 213 P.3d 723 ( 2013), review denied, 180 Wn.2d. 1028
2014).
Here, a " reference group" is a group of offenders matched based on similar characteristics to
provide a representative sample within which the actuarial instrument places the evaluated
offender.
No. 46889 -1 - II
Putnam' s methodology. The trial court ruled that Dr. Putnam' s testimony was admissible under
ER 702 and declined to conduct a Frye hearing.
The State moved in limine to prohibit the use of the term " incarceration" as not relevant
under ER 402 and more prejudicial than probative under ER 403. CP at 947. The trial court
precluded the parties from using the term " incarcerated," but allowed the terms " confined" or
detained." CP at 903.
III. DR. PUTNAM' S TRIAL TESTIMONY
To commit a person as an SVP, the State must prove beyond a reasonable doubt that the
person ( 1) " 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." RCW 71. 09. 020( 18).
Mental abnormality" is defined as " a congenital or acquired condition affecting the
emotional or volitional capacity which predisposes the person to the commission of criminal sexual
acts in a degree constituting such person a menace to the health and safety of others."
RCW 71. 09. 020( 8). In contrast, a "`` [ p] ersonality disorder' means 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." RCW 71. 09. 020( 9). And evidence of a personality disorder
must be supported by testimony of a licensed forensic psychologist or psychiatrist."
RCW 71. 09. 020( 9).
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No. 46889 -1 - II
At trial, the State presented the expert testimony of Dr. Putnam, a licensed psychologist
with 15 years of experience evaluating sex offenders. Dr. Putnam reviewed a number of
documents, including police reports, psychological evaluations, and Parsons' s confinement
records; evaluated Parsons in 2010; and updated his evaluation in 2013. Dr. Putnam found that
Parsons had a pattern of sexual arousal to the physical or psychological suffering of pubescent
boys and a pattern of serious difficulty controlling his sexually violent behavior. He diagnosed
Parsons with sexual sadism and personality disorder that includes antisocial, borderline and
dependent features. He opined that Parsons' s personality disorder interacts with his sexual sadism,
causing him serious difficulty controlling his sexual violent behavior, and predisposes him to the
commission of criminal sexual acts. Dr. Putnam opined, based on a reasonable degree of
psychological certainty, that Parsons' s condition was a " mental abnormality." 3 Verbatim Report
of Proceedings ( VRP) at 340- 41.
Dr. Putnam used a Static -99R actuarial risk assessment instrument to score Parsons and
scored him as a " high risk category" offender. 3 VRP at 329- 30. Dr. Putnam acknowledged that
no scientific instrument was available to select Parsons' s reference group and that the selection of
Parsons' s reference group was based on Dr. Putnam' s logical inference, but that this was
characteristic to the Static -99R actuarial risk assessment instrument.. He conceded that no study
had ever been conducted that demonstrated this methodology for selecting the reference group was
valid or reliable.
Dr. Putnam also incorporated dynamic risk factors into his analysis, which are factors that
have been found to relate to sexual recidivism, not included in the static actuarial instruments, but
are used as treatment targets in sex offender treatment. His assessment of Parsons' s dynamic risk
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No. 46889 -1 - II
factors indicated that Parsons had issues with intimacy deficits, poor cooperation with supervision
both in the community and in custody, and a high degree of hostility and difficulty managing anger.
Dr. Putnam opined that Parsons did not demonstrate much insight into his offender behavior even
after participating in sex offender treatment and that his proposed release environment was
inadequate. Based on his evaluation, Dr. Putnam opined " that Mr. Parsons, by reason of his mental
abnormality, is more likely than not to engage in predatory acts of sexual violence if not confined
to a secure facility." CP at 53.
IV. PARSONS' S TRIAL MOTIONS
After the State rested its case, Parsons moved to exclude Dr. Putnam' s opinions regarding
the Static -99R and Static 2002R reference groups under ER 702 and Frye. The trial court denied
the motion.
Parsons also requested that the jury not be instructed on personality disorder as a basis for
civil commitment. Parsons relied on Dr. Putnam' s testimony that " the personality disorder alone
would not have been sufficient" to civilly commit Parsons as an SVP under the criteria of chapter
71. 09 RCW. 4 VRP at 417- 18. Parsons stated, " That doesn' t mean I' m moving to strike any of
the testimony about the personality disorder prong. Dr. Putnam talked about it playing into the
mental abnormality, but by itself would not be sufficient." 4 VRP at 418.
The State agreed that the jury should not be instructed that personality disorder was a basis
to civilly commit Parsons. The trial court excluded references to " personality disorder" in its oral
instruction to the jury,setting forth the elements that the jury must find to convict Parsons of being
an SVP, and instructed the jury to consider whether Parsons had a " mental abnormality" that met
the statutory requirements of an SVP. 5 VRP at 645. The jury found, by unanimous verdict, that
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No. 46889 -1 - II
Parsons was an SVP under chapter 71. 09 RCW, and the court entered an order committing Parsons
as an SVP to the SCC. Parsons appealed.
ANALYSIS.
Parsons argues that ( 1) the trial court erred in admitting any evidence of his personality
disorder because that evidence was not relevant under ER 401 and did not demonstrate whether he
suffered from a " mental abnormality" in order to commit him as an SVP, ( 2) the trial court erred
in permitting the State' s expert, Dr. Putnam, to rely on Static -99R and Static -2002R actuarial
instruments, used in assessing the likelihood of sexual re -offense, without first conducting a Frye
hearing and erred in admitting the testimony under ER 702 when the expert' s methods had not
been scientifically validated nor were generally accepted in the relevant scientific community, and
3) the trial court abused its discretion by precluding the parties from referring to Parsons' s SCC
commitment as " incarceration." CP at 903. We disagree and affirm the trial court' s order
committing Parsons as an SVP to the SCC.
I. PERSONALITY DISORDER EVIDENCE
A. ADMISSION OF EVIDENCE
Appellate courts will generally not entertain issues that were not raised at the trial court.
State v. Robinson, 171 Wash. 2d 292, 304, 253 P.3d 84 ( 2011). RAP 2. 5( a) provides in part:
The appellate court may refuse to review any claim of error which was not raised
in the trial court. However, a party may raise the following claimed errors for the
first time in the appellate court: ( 1) lack of trial court jurisdiction, ( 2) failure to
establish facts upon which relief can be granted, and ( 3) manifest error affecting a
constitutional right.
Although at trial Parsons argued that the State cannot commit him as an SVP based on a personality
disorder finding alone, Parsons did not object to, and expressly declined to move to strike Dr.
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No. 46889 -1 - II
Putnam' s testimony about his diagnosis of Parsons' s personality disorder. Thus, Parsons failed to
preserve this issue for appeal, and we decline to review this issue further.
B. UNANIMITY OF JURY VERDICT
Parsons also argues that, because the trial court admitted personality disorder evidence, it
is unclear whether the jury relied impermissibly on the evidence in convicting Parsons, and thus,
the State cannot show that the jury unanimously found that Parsons suffered from a mental
abnormality. The State responds that Parsons' s argument is unsupported because the jury
instructions did not provide an option of committing Parsons based on a personality disorder, and
only provided an option of committing Parsons based on a finding of mental abnormality.
Although chapter 71. 09 RCW allows a jury to make an SVP determination based on either
a finding of "mental abnormality" or a " personality disorder," In re Det. of Halgren, 156 Wash. 2d
795, 810, 132 P.3d 714 ( 2006), here the parties and the trial court agreed to exclude " personality
disorder" as a basis for commitment. 5 VRP at 628. The jury instructions provided " mental
abnormality" as the only basis for a commitment finding and did not instruct on a " personality
disorder." CP at 925 ( Jury Instruction 4). And because we presume the jury followed the court' s
instructions, we hold that Parsons' fails to show that the jury' s verdict was not a unanimous finding
of a mental abnormality. State v. Johnson, 124 Wash. 2d 57, 77, 873 P.2d 514 ( 1994).
II. ADMISSIBILITY OF EXPERT TESTIMONY
Parsons argues that the trial court should have excluded Dr. Putnam' s testimony under
ER 702, or should have conducted a Frye hearing to establish that Dr. Putnam' s reference group
methodology was generally accepted in the relevant scientific community. The State responds
that, in Washington, neither clinical judgment relating to risk assessment nor actuarial instruments
No. 46889 -1 - II
used in those risk assessments are subject to a Frye hearing; rather, they are analyzed under ER
702 and 703. In re Det. of Thorell, 149 Wash. 2d 724, 756, 72 P.3d 708 ( 2003). The State further
argues that Washington courts have already accepted the Static -99R actuarial instrument that Dr.
Putnam used, and that such clinical judgment and actuarial instruments relating to risk assessments
go to weight, rather than admissibility. Because Dr. Putnam' s 2010 opinion was based on the '
Static -99R and Static -2002R, actuarial instruments that were not novel, and because his opinion
was not dependent on SRA -FV, the trial court properly admitted the evidence.
Our review of the admissibility of evidence under Frye is de novo, involving a mixed
question of law and fact. In re Det. ofRitter, 177 Wn. App. 519, 522, 213 P.3d 723 ( 2013), review
denied, 180 Wn.2d. 1028 ( 2014); State v. Copeland, 130 Wash. 2d 244, 255, 922 P.2d 1304 ( 1996).
A Frye hearing is required when a party seeks to admit " evidence based on novel scientific
procedures." In re Pers. Restraint of Young, 122 Wash. 2d 1, 56, 857 P.2d 989 ( 1993). " The Frye
test is only implicated where the opinion offered is based upon novel science." Anderson v. Akzo
Nobel Coatings, Inc., 172 Wash. 2d 593, 611, 260 P.3d 857 ( 2011). If the evidence does not involve
new scientific principles or methods of proof, a Frye inquiry is unnecessary. Acord v. Pettit, 174
Wash. App. 95, 110, 302 P.3d 1265, review denied, 178 Wash. 2d 1005 ( 2013).
After determining that evidence satisfies the Frye test, we evaluate the trial. court' s
admission of that evidence under ER 702. State v. King County Dist. Court. W. Div., 175 Wn.
App. 630, 637, 307 P.3d 765, review denied, State v. Ballow, 179 Wash. 2d 1006, 315 P.3d 530
2013). We review the trial court' s decision whether to admit expert testimony under ER 702 for
an abuse of discretion. State v. Green, 182 Wash. App. 133, 146, 328 P.3d 988, review denied, 337
P.3d 325 ( 2014). Expert testimony is admissible under ER 702 "[ i] f scientific, technical, or other
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specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact
in issue." ER 702. Such testimony is generally helpful to the trier of fact when " it concerns matters
beyond the common knowledge of the average layperson and does not mislead the jury." State v.
Thomas, 123 Wn. App. 771, 778, 98 P.3d 1258 ( 2004). As long as helpfulness is fairly debatable,
a trial court does .not abuse its discretion by allowing an expert to testify. In re Det. of Coe,
160 Wn. App. 809, 818, 250 P.3d 1056 ( 2011). And even where the helpfulness of expert
testimony is doubtful, we favor admissibility. King County Dist. Court, 175 Wash. App. at 638.
T] he core concern ... is only whether the evidence being offered is based on established
scientific methodology."' Thorell, 149 Wash. 2d at 754 ( quoting Young, 122 Wash. 2d at 56). " It
applies where either the theory and technique or the method of arriving at the data relied upon is
so novel that it is not generally accepted by the relevant scientific community." Anderson,
172 Wash. 2d at 611. " Once a methodology is accepted in the scientific community, then application
of the science to a particular case is a matter of weight and admissibility under ER 702, which
allows qualified expert witnesses to testify if scientific, technical, or other specialized knowledge
will assist the trier of fact." Anderson, 172 Wash. 2d at 603 ( quoting State v. Gregory, 158 Wash. 2d
759, 829- 30, 147 P.3d 1201 ( 2006)).
Washington courts have rejected arguments that non -novel comprehensive sex predator
risk assessments are subject to a Frye hearing. See Halgren, 156 Wash. 2d at 806; In re Det. of
McGary, 175 Wn. App. 328, 338, 306 P.3d 1005, review denied, 178 Wash. 2d 1020 ( 2013); In re
Det. Berry, 160 Wn. App. 374, 379, 248 P.3d 592 ( 2011); In re Det. of Robinson,
135 Wash. App. 772, 786, 146 P.3d 451( 2006). And our Supreme Court has upheld the admissibility
of expert opinions based purely on the expert' s experience, stating, "[ M] any expert medical
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No. 46889 -1 - II
opinions are pure opinions and are based on experience and training rather than scientific data.
We require only that `` medical expert testimony . be based upon a reasonable degree of medical
certainty' or probability." Anderson, 172 Wash. 2d at 610 (quoting McLaughlin v. Cooke, 112 Wash. 2d
829, 836, 774 P.2d 1171 ( 1989)). Thus, this court' s analysis is whether Dr. Putnam' s scientific
methodology was established, which would not require a separate Frye hearing, or whether it was
novel. Thorell, 149 Wash. 2d at 755.
Parsons moved to exclude Dr. Putnam' s testimony based on the SRA -FV, Static -99R, and
Static -2002R on the grounds that these actuarial instruments were novel techniques that required
a Frye hearing. We reject Parson' s arguments that a Frye hearing was required.
Our Supreme Court has embraced actuarial instruments as admissible evidence in
predicting future dangerousness or likelihood of re -offense. Thorell, 149 Wash. 2d at 753, 755. And
our courts have specifically admitted expert testimony of the likelihood that a respondent will
commit another sexual offense based on Static -99R and Static -2002R risk assessments. 4
To the extent that Parsons challenges the method by which Dr. Putnam applied those
actuarial instruments, such arguments go to weight, not admissibility. Thorell, 149 Wash. 2d at 753.
Parsons cross- examined Dr. Putnam' s methods and presented testimony from his own expert to
rebut Dr. Putnam' s conclusions. Such conflicting expert opinions go to the weight of the evidence
rather than its admissibility and are "`` within the province of the jury to resolve. In. re Det. of
Campbell, 139 Wash. 2d 341, 358, 986 P.2d 771 ( 1999) ( quoting Barefoot v. Estelle, 463 U.S. 880,
4
In Pers. Restraint of Meirhofer, 182 Wash. 2d 632, 640- 42, 343 P.3d 731 ( 2015) ( Static -99R);
re
Ritter, 177 Wash. App. at 521- 22 ( Static -99R and Static -2002R); McGary, 175 Wash. App. at 334
Static -99R and Static -2002R).
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No. 46889- 1- I1
902, 103 S. Ct. 3383 ( W.D. Tex. 1982)). Therefore, Parsons' s challenge to the trial court' s
admission of Dr. Putnam' s testimony based, in part, on actuarial instruments, fails.
Separate from a Frye challenge, Parsons argues that the trial court should have excluded
Dr. Putnam' s testimony under ER 702 because the expert' s methods were not scientifically
validated -or generally accepted in the relevant scientific community. Although he argues that Dr.
Putnam' s reliance on the SRA -FV and logical inferences to select Parsons for a " high risk, high
needs" reference group was not generally accepted in the scientific community, our courts have
already rejected both arguments. Br. of Appellant at 8. We recently held that " the scientific theory
or principle upon which the SRA -FV is based has gained general acceptance in the relevant
scientific community of which it is a part." In re Det. of Pettis, _ Wn. App. _, _ P. 3d
2015 WL 3533220, * 6 ( 2015) ( affirming the admission of expert testimony based on the SRA -FV
and other risk assessment instruments that placed an offender in a " high risk" category). But we
hold that Parsons' s challenge to the SRA -FV is moot because, at trial, the State agreed not to
present evidence regarding the SRA -FV.
Under the deferential standard of ER 702, a trial court does not abuse its discretion by
allowing an expert to testify when the helpfulness of the expert' s testimony is fairly debatable."
Pettis, 2015 WL 3533220, at * 7 ( citing Green, 182 Wn. App. at 146). Dr. Putnam' s testimony
about the Static -99R and Static -2002R actuarial instruments provided scientific, specialized
knowledge about Parsons' s risk factors that would assist the jury in determining the likelihood that
he would reoffend if released. Pettis, 2015 WL 3533220, at * 7. We hold that the trial court did
not abuse its discretion by admitting Dr. Putnam' s testimony.
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No. 46889 -1 - II
III. PRECLUDING UsE OF THE TERM " INCARCERATION"
Parsons argues that the trial court prejudiced him and abused its discretion by precluding
the parties from referring to his commitment at the SCC as " incarceration." Br. of Appellant
at 27. He contends that the State " sought to keep the whole truth of Parsons' s detention from the
jurors ... [ to] ease[] its burden of proof," and that the jury would have reached a different
conclusion if he could characterize his detention at the SCC as " incarceration." Br. of Appellant
at 29.
We review a trial court' s rulings on motions in limine for abuse of discretion. In re Det.
ofPost, 145 Wn. App. 728, 741 n. 8, 187 P.3d 803 ( 2008). Judicial discretion is abused if exercised
on untenable grounds or for untenable reasons. State v. Ruiz, 176 Wash. App. 623, 634, 309 P.3d
700 ( 2013), review denied, 179 Wash. 2d 1015 ( 2014). Even if the trial court abuses its discretion,
the error is not reversible unless the appellant demonstrates prejudice. Portch v. Sommerville,
113 Wash. App. 807, 810, 55 P.3d 661 ( 2002).
Our Supreme Court has stated, "`` Commitment is a deprivation of liberty. It is incarceration
against one' s will, whether it is called `` criminal' or `` civil."' In re Det. ofD.F.F., 172 Wash. 2d 37,
40 n: 2, 256 P.3d 357 ( 2011) ( quoting Application of Gault, 387 U.S. 1, 50, 87 S. Ct. 1428, 18 L.
Ed. 2d 527 ( 1967)). Here, the trial court ruled that " confined" and " detained" would " strike[] the
right balance," implying that the term " incarceration" was potentially prejudicial. 1 VRP at 9. But
our Supreme Court has expressly referred to SVP commitment as " incarceration." D.F.F., 172
Wash. 2d at 40 n. 2.
Assuming, without deciding, that " incarceration" is a proper term for SVP commitment in
an SVP jury trial, Parsons fails to show that the trial court' s error was prejudicial. Portch,
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113 Wash. App. at 810. Parsons does not contest the underlying sex offenses, and the State presented
significant evidence demonstrating Parsons' s current likelihood of re -offense. Whether the parties
referred to commitment at the SCC as " incarceration," " commitment," or " detention," all terms
are correct; and Parsons does not show any prejudice from the terms " commitment" or " detention"
as opposed to the term " incarceration." Portch, 113 Wash. App. at 810.
CONCLUSION
Because ( 1) the trial court did not err in admitting the personality disorder evidence, ( 2)
the expert' s actuarial instruments were not a novel scientific method requiring a Frye hearing, ( 3)
the expert' s testimony was admissible under ER 702 as helpful testimony, and (4) Parsons fails to
show prejudice from the trial court' s exclusion of the term " incarcerated," we affirm the trial
court' s order committing Parsons as a sexually violent predator to the Special Commitment Center.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040,
it is so ordered.
SUTTON, J.
We concur:
F ORr r;N, A. U. J.
L - E, J.
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