In Re The Detention Of: Richard Scott, App. v. State Of Washington, Res.

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON „
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In the Matter of the Detention of No. 70692-6-1
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RICHARD ROY SCOTT. DIVISION ONE i
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UNPUBLISHED OPINION
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FILED: June 9, 2014
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Leach, J. — Richard Scott appeals the trial court's denial of his CR 60(b)
motion. He claims that the rejection of the hebephilia diagnosis in the 2013
version of the Diagnostic and Statistical Manual of Mental Disorders1 (DSM-V)
constitutes newly discovered evidence and a change in the law and science.
Scott argues that the court should vacate his stipulation to the criteria for
commitment as a sexually violent predator because the parties based their
stipulation upon a now invalid diagnosis of hebephilia that the psychiatric
profession no longer accepts. Because Scott fails to show extraordinary
circumstances entitling him to relief, we affirm.
1 Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental
Disorders (5th ed. 2013).
No. 70692-6-1 / 2
Background
In 1984, Scott was convicted of five counts of indecent liberties, a sexually
violent offense, against victims 7, 8, 10, 12, and 13 years old. In 2001, he was
convicted of third degree rape of a child.
On May 19, 2003, the day of Scott's scheduled release from prison, the
State petitioned to commit Scott as a sexually violent predator. The court found
probable cause to support this petition and detained Scott at the Special
Commitment Center pending trial.
Dr. Richard Packard, a clinical and forensic psychologist, evaluated Scott
to determine if he met the criteria for commitment as a sexually violent predator.
Packard reviewed approximately 21,000 pages of records, including discovery
materials from Scott and from the State, records from the Special Commitment
Center, criminal records, prison records, medical and treatment records, previous
psychological evaluations, and legal documents. Packard concluded that Scott
met the diagnostic criteria "for two paraphilias": paraphilia, pedophilia—sexual
attraction to prepubescent children—and paraphilia not otherwise specified
(NOS) (hebephilia)—sexual attraction to pubescent children. Packard also
determined that Scott met the diagnostic criteria for personality disorder NOS
with antisocial, narcissistic, and histrionic features; bipolar I disorder most recent
episode unspecified, without interepisode recovery; somatization disorder;
alcohol abuse, by history in full remission; and malingering. Finally, Packard
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No. 70692-6-1 / 3
concluded "that Mr. Scott is more likely than not to continue to engage in
predatory acts of sexual violence if not confined to a secure facility."
Dr. Brian Judd also evaluated Scott. He reviewed over 17,997 pages of
discovery from the joint forensic unit, the Special Commitment Center, Scott, and
the State. He also reviewed criminal records, prison records, medical and
treatment records, previous psychological evaluations, and legal documents.
Judd opined that Scott met the diagnostic criteria for pedophilia, sexually
attracted to males, nonexclusive type; alcohol abuse (by history); and personality
disorder NOS with antisocial and narcissistic traits. He concluded that Scott
"constitutes a high risk for sexually violent and violent recidivism." In their
reports, both experts cited the definition of "paraphilia" stated in the fourth edition
oftheDSM(DSM-IV).2
On November 6, 2007, the first day of Scott's scheduled trial, he stipulated
to meeting the criteria for commitment as a sexually violent predator and that he
had a prior conviction for a sexually violent offense. He also stipulated,
9. Respondent suffers from the following mental
abnormality and/or personality disorders: Paraphilia Pedophilia,
Paraphilia Not Otherwise Specified (Hebephilia), Personality
Disorder, Not Otherwise Specified, with Antisocial, Narcissistic, and
Histrionic Features.
10. These mental abnormalities and personality
disorders, together or separately, make it seriously difficult for him
to control his behavior such that it makes him more likely than not
to commit further acts of predatory sexual violence if he is not
confined in a secure facility.
2 Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental
Disorders: DSM-IV-TR (4th rev. ed. 2000).
No. 70692-6-1/4
The court ordered Scott committed as a sexually violent predator.
On June 5, 2013, Scott filed a "CR 60(b) Motion for Release Order."3 He
claimed that his stipulation was void because of a "Change in Science." Scott
alleged that his stipulation relied upon the then-current version of the DSM, DSM-
IV, but that the DSM-V, published in May 2013, "[i]n very strong words they
clearly reject ted [sic] the use of 'NOS.' 'And Hebaphilia' [sic]. And [s]o narrowly
defined pedophilia, so that it could not possibly be applied to Scott." Scott
contended that he "never me[t] the statutory criteria from day one. Even the
petition itself has now been proven to have relied on the bogus diagnoses of
pedophilia and hebaphilia [sic]." The only evidence that Scott provided to
support his motion was an article from the magazine Psychology Today.
The trial court denied this motion "[i]n accordance with the holdings of ]n
re [Personal Restraint! of Young, 122 Wn.2d 1, 857 P.2d 989 (1993), and In re
the Detention of Berry, 160 [Wn.] App. 374, 248 P.3d 592 (2011)." On its order,
the court wrote, "The Respondent has not demonstrated that legally or
psychologically ... his case should be dismissed. Even were this Court to take
judicial notice of the DSM V, it is not clear how it affects his commitment, his
stipulation or his underlying conviction."
Scott appeals.
3 Scott's original motion cited no specific subsection of CR 60(b). In his
reply, he cites CR 60(b)(11) as the basis for his motion.
No. 70692-6-1 / 5
Analysis
Scott claims that "a change in the law and science" entitles him to
withdraw his stipulation.4 We review a trial court's denial of a CR 60(b) motion
for manifest abuse of discretion.5 A trial court abuses its discretion when its
decision is manifestly unreasonable or made on untenable grounds or for
untenable reasons.6 A court also abuses its discretion if it bases its decision on
an erroneous view of the law.7
Unlike an appeal, a CR 60(b) motion does not provide a means for
correcting errors of law in an underlying order.8 Accordingly, when a party
appeals the trial court's denial of a CR 60(b) motion, we review only the trial
4 For the first time on appeal, Scott argues that the "change in science"
constitutes newly discovered evidence for the purposes of CR 60(b)(3). Because
he did not raise this particular provision below, he cannot raise it now. In re
Marriage of Wherlev, 34 Wn. App. 344, 348, 661 P.2d 155 (1983) (citing
Cameron v. Downs. 32 Wn. App. 875, 882, 650 P.2d 260 (1982)). Even if we
considered this argument, a party must bring a CR 60(b)(3) motion within a
reasonable time and within one year of entry of the judgment. CR 60(b); see
Luckett v. Boeing Co., 98 Wn. App. 307, 310, 989 P.2d 1144 (1999). Because
Scott failed to file his motion within one year of the entry of the judgment, he
cannot seek relief under CR 60(b)(3).
5 Halev v. Highland, 142 Wn.2d 135, 156, 12 P.3d 119 (2000) (citing ]n_re
Guardianship of Adamec. 100 Wn.2d 166, 173, 667 P.2d 1085 (1983)); In re Pet.
of Mitchell. 160 Wn. App. 669, 675, 249 P.3d 662 (2011) (citing Highland, 142
Wn.2dat156).
6 Maver v. Sto Indus., Inc., 156 Wn.2d 677, 684, 132 P.3d 115 (2006)
(citing Associated Mortg. Investors v. G.P. Kent Constr. Co., 15 Wn. App. 223,
229, 548 P.2d 558 (1976)).
7 Maver, 156 Wn.2d at 684 (citing State v. Rohrich, 149 Wn.2d 647, 654,
71 P.3d 638 (2003)).
s Burlinoame v. Consol. Mines & Smelting Co., 106 Wn.2d 328, 336, 722
P.2d 67 (1986) (citing State v. Keller, 32 Wn. App. 135, 140, 647 P.2d 35(1982)).
No. 70692-6-1 / 6
court's decision to deny the motion, not the underlying order that the party seeks
to vacate.9
CR 60(b) allows a trial court to vacate a final judgment or order for
specified reasons such as mistake, inadvertence, excusable neglect, newly
discovered evidence, and fraud. Scott based his motion on CR 60(b)(11), which
authorizes a trial court to vacate an order for "[a]ny other reason justifying relief
from the operation of the judgment." This court will vacate an order under CR
60(b)(11) only if the case involves extraordinary circumstances that "constitute
irregularities extraneous to the proceeding."10 A defendant can move to vacate
an order under CR 60(b)(11) only when his circumstances do not permit him to
move under another subsection of CR 60(b).11
Chapter 71.09 RCW authorizes the involuntarily commitment of a sexually
violent predator.12 A sexually violent predator is "any person who has been
convicted of or charged with a crime of sexual violence and who suffers from a
mental abnormality or personality disorder which makes the person likely to
engage in predatory acts of sexual violence if not confined in a secure facility."13
A "mental abnormality" is "a congenital or acquired condition affecting the
emotional or volitional capacity which predisposes the person to the commission
9 Biurstrom v. Campbell. 27 Wn. App. 449, 450-51, 618 P.2d 533 (1980).
10 In re Pet, of Ward, 125 Wn. App. 374, 379, 104 P.3d 751 (2005) (citing
In re Marriage of Knies, 96 Wn. App. 243, 248, 979 P.2d 482 (1999)).
11 Ward, 125 Wn. App. at 379 (citing In re Marriage of Thurston. 92 Wn.
App. 494, 499, 963 P.2d 947 (1998); Shum v. Dep't of Labor & Indus., 63 Wn.
App. 405, 408, 819 P.2d 399 (1991)).
12 Ward, 125 Wn. App. at 376 (citing RCW 71.09.010).
13 Former RCW 71.09.020(16) (2006).
No. 70692-6-1 / 7
of criminal sexual acts in a degree constituting such person a menace to the
health and safety of others."14
Scott alleges,
The hebephelia diagnosis was not explicitly included in the
fourth edition of the American Psychiatric Association's Diagnostic
and Statistical Manual of Mental Disorders (DSM). Since 2007, the
diagnostic validity of hebephilia (and, paraphilia NOS (hebephilia))
has been subject to significant debate. Hebephelia was considered
but rejected for inclusion in the 2013 DSM-V.
Within weeks of the DSM-V release, Mr. Scott moved pro se
under Civil Rule 60(b) for relief from the indefinite commitment
order. Mr. Scott argued that his stipulation and the State's petition
were based on the then-current version of the DSM, the DSM-IV,
but that the just-released DSM-V constitutes a significant change in
the law and demonstrates the invalidity of his initial commitment.
Scott contends, "At the time of the stipulation, the hebephelia diagnosis relied
upon unforeseen vagueness in the then-current DSM-IV that had not been
subject to debate or peer review because it was an unanticipated use ofthe DSM
diagnostic categories."
Scott relies upon In re Detention of Ward.15 in which the court stated, "In
rare circumstances, a change in the law may create extraordinary circumstances,
satisfying CR 60(b)(11)." But Scott fails to demonstrate a change in the law
since his stipulation that would affect his stipulation or his commitment.
14 RCW 71.09.020(8). The version of RCW 71.09.020 in effect at the time
of Scott's commitment did not define "personality disorder."
15 125 Wn. App. 374, 380, 104 P.3d 751 (2005).
No. 70692-6-1 / 8
In Kansas v. Crane.16 the United States Supreme Court explained that
states have considerable leeway in defining the personality disorders and mental
abnormalities that make an individual eligible for commitment. The Court stated,
"[T]he science of psychiatry, which informs but does not control ultimate legal
determinations, is an ever-advancing science, whose distinctions do not seek
precisely to mirror those of the law."17
In Young, our Supreme Court rejected the argument that a diagnosis of
paraphilia NOS (nonconsent) was invalid because it did not appear in the then-
current edition of the DSM:
"In using the concept of 'mental abnormality' the legislature
has invoked a more generalized terminology that can cover a much
larger variety of disorders. Some, such as the paraphilias, are
covered in the DSM-III-R; others are not. The fact that
pathologically driven rape, for example, is not yet listed in the
DSM-III-R does not invalidate such a diagnosis. The DSM is, after
all, an evolving and imperfect document. Nor is it sacrosanct.
Furthermore, it is in some areas a political document whose
diagnoses are based, in some cases, on what American Psychiatric
Association ('APA') leaders consider to be practical realities. What
is critical for our purposes is that psychiatric and psychological
clinicians who testify in good faith as to mental abnormality are able
to identify sexual pathologies that are as real and meaningful as
other pathologies already listed in the DSM."[18]
16 534 U.S. 407, 413, 122 S. Ct. 867, 151 L. Ed. 2d 856 (2002) (citing
Kansas v. Hendricks, 521 U.S. 346, 359, 117 S. Ct. 2072, 138 L. Ed. 2d 501(1997); Hendricks, 521 U.S. at 374-75 (Breyer, J., dissenting)).
17 Crane. 534 U.S. at 413 (citing Hendricks. 521 U.S. at 359).
18 Young. 122 Wn.2d at 28 (quoting Alexander D. Brooks, The
Constitutionality and Morality of Civilly Committing Violent Sexual Predators. 15
U. Puget Sound L. Rev. 709, 733 (1992)).
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No. 70692-6-1 / 9
We reiterated this holding in Berry.19 Thus, inclusion in the DSM is not definitive
for diagnosing a mental illness for the purposes of commitment, and the DSM is
not Washington law. Because Scott fails to show a change in Washington law
since he stipulated to the criteria for commitment as a sexually violent predator,
his argument fails.
Even if we accept Scott's assertion that the "diagnostic validity of
hebephilia" has changed since his stipulation, he cites no authority establishing
that this change in science creates "extraordinary circumstances" entitling him to
withdraw his stipulation. He presents no facts showing that he no longer poses a
risk to others if not confined in a secure facility or that his condition has changed
such that he no longer meets the criteria for confinement.
Scott stipulated that he suffered from paraphilia pedophilia, paraphilia
NOS (hebephilia), personality disorder NOS with antisocial, narcissistic, and
histrionic features. He stipulated that these diagnoses "together or separately"
were sufficient to meet the criteria for a sexually violent predator. Even if
hebephilia were an invalid diagnosis, Washington courts have recognized the
other diagnoses to which he stipulated as a sufficient basis for commitment as a
sexually violent predator.20
19 Berry. 160 Wn. App. at 380-81.
20 See In re Pet, of Morgan, No. 86234-6, 2014 WL 1847790 (Wash. May
8, 2014) (involuntary commitment where defendant met diagnostic criteria for
paraphilia, pedophilia, and antisocial personality disorder); State v. McCuistion,
174 Wn.2d 369, 275 P.3d 1092 (2012) (involuntary commitment where
defendant met diagnostic criteria for paraphilia NOS, pedophilia, and antisocial
personality disorder), cert, denied. 133 S. Ct. 1460 (2013).
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No. 70692-6-1/10
In Scott's reply to the State's opposition to his CR 60(b) motion, he also
asserted that he stipulated under "the mistaken belief that the diagnoses given to
Scott were valid and would meet the requirements of Frve v. United States. 293
F. 1013, 34 A.L.R. 145 (P.C. Cir. 1923)." Because he raised this argument for
the first time in his reply and he does not argue it in his brief, we do not review
it.21 Even if we were to consider this challenge, we held in Berry that testimony
from a psychologist or a psychiatrist about a sex offender's mental illness or
abnormality is not subject to Frve.22
Conclusion
Because Scott fails to demonstrate a change in Washington law or a
change in science creating extraordinary circumstances entitling him to withdraw
his stipulation to the criteria for commitment as a sexually violent predator, the
trial court did not abuse its discretion when it dismissed his CR 60(b) motion. We
affirm.
WE CONCUR:

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21 Cowiche Canyon Conservancy v. Boslev, 118 Wn.2d 801, 809, 828
P.2d 549 (1992); Jov v. Pep't of Labor & Indus.. 170 Wn. App. 614, 629, 285
P.3d 187 (2012) (quoting West v. Thurston County. 168 Wn. App. 162, 187, 275
P.3d 1200 (2012)), review denied. 176 Wn.2d 1021 (2013).
22 Berry. 160 Wn. App. at 379-80.
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