note at the beginning but this is an unusual section of amplitudes case first of all there are four experts that testified i three were on behalf of mr sneddon three experts were hired by the state only one of those experts actually testified on behalf of the state it's also important to note and this is goes into the details i think to the testimony that mr smith was an adolescent at the time of the offense and that's important to go to the factor that the state must prove that the mental disorder that mr smith may or may not have creates a substantial probability that he is likely to re offend with a sexual you buy us this appeal is not asking you to read way of evidence that was presented with the trial court rather its review of that evidence through the lens of the abuse of discretion standard the one expert that testified on behalf of the state dr bellew smith found that mr smith did today presented at trial did not take into account the fact that that offenses committed when mr smith was an adolescent at the age of fifteen she used three actuarial tools the static ninety nine are s that their use of discretion is viewing all the light most favorable to date any rational trier of fact so perhaps there are two different differen static ninety nine was a close call it is indeed a close call i believe that was dr smith back and say that it's a close call because of the age mr smith was fifteen years old at the time of the index offense the important thing to note is that and this was noted by each of the three experts for mr smith the adolescent brain is not similar to the adult brain and the reason for the offense is different in an adult offender then an matter there are other offenses with where there was no charges brought for those offenses in order to diagnose the mental disorder which is one of the components that must be proven beyond a reasonable doubt under the act in order to diagnose that it's important to take into account past conduct and background information including criminal history substance abuse history there's many factors that will go towards mental that analysis but it's important distinction to make in this case that the mental diagnosis has to create dispose the offender with a substantial color lucky to re offend and that's where the state's evidence failed even with their one expert even if she had found and she did find she there was a qualifying diagnosis to the experts t find however that qualifying mental that disorder has to create that probability of re offense and that's why those actuarial instruments utilized only by the state's expert fail they cannot be used or they must be used with great caution on an offender that committed the offense in adolescence and that's where the issue comes in and that's where her evaluation did not take into account any of those factors any of that adolescents factor it i not have been used to prove that third element the element that the mental disorder predisposes him to re offend with a substantial probability beyond a reasonable doubt and not being that's one of the primary issues here the state had to prove all the allegations and  in order to do so and this order issued by the trial court did not that the state did not prove beyond reasonable doubt and they have the burden of proof in this instance and that informed note that the purpose of the statute is it's not a criminal the civil commitment statute the purpose is to protect not only the community from every offense but also to get proper treatment for the offender we have for the person potentially to be committed and this is a man's liberty at and it's important that all three elements all three allegations in imitation be proven beyond a reasonable doubt all the experts found that the first element that if committed an index sexually violent offense there is no doubt about that to experts found  qualified mental disorder so there is some dispute maybe that was proven beyond a reasonable doubt what was not proven beyond a reasonable doubt however was whether that if he did have a qualifying mental disorder while that substantially c act there's no dispute about the first element which was that respondent was convicted of sexually violent offense in two thousand and three was convicted of criminal activity assault have a four year old the second  element and that is that the the mental disorder created a substantial probability that respondent would be a friend here and you know that even though respondent would like to characterize evidence at trial as one lonely state's expert out on a limb against three experts for the respondent there is actually quite a bit of agreement amongst the three experts in discussing the issue of risk here  so of course dr bell isn't the state's expert opined that she it was her opinion to a reasonable degree of psychological certainty based on looking at a number of different methods for assessing risk that  there was there was a substantial probability the other three experts were more cautious they all noted that there was some risk here but they couldn't reach what they considered to be too high a threshold actual probability standard but judge cavanagh reasonably reasonably concluded that they were being overly cautious because there was you know personal almost universal agreement about what the risk factors were with respect to respond so if he say that did he say that the response experts were being overly cautious there was no there was no i don't respect and and also the the testimony of the other three experts that there were these this this long list of risk factors here supporting the idea that respondent is likely to reoffend so  for example all four experts testified that respondent had deviant sexual interest in children this is it's interesting that dr kane who testified earlier  that she attributed respondents previous offenses to anti social orientation also said when it came to discussing risk that he had if you get sexual interest in children and in particular she noted studies of adolescent offenders that showed a higher risk for offenders who had offended more than once and here there is no dispute that respondent assaulted four children all all of the experts agreed that there was an early onset of sexual offending in this case respondent began with when he was twelve years old with two very serious assaults against boys who were five five and eight involving penetration and you saw threats all the experts agreed that this respondent had exhibited a general disposition towards criminality and had a number of prior offenses that were non sexual in nature responded movement it's the darker blue smith in appropriately relied on respondents past confusion here about what exactly past conduct meant there are cases that respondent cites in the brief gavin and samuelson and his belt are all dealing with the idea that in a jury trial  when the state introduces evidence of about the details of past offenses that the jury might prejudice and decide the case based on and based on that past con rather than an assessment of the elements in this case whether there's a mental disorder and whether that disorder predisposes the response to future acts of violence there is there is nothing improper about what dr believe smith did in this  diagnosis of paraphilia based on what the respondent has done in the past that happens in every s p p case where an expert gets up and testifies that they are looking at this past year to determine  determine that a respondent has this disorder as dr believe smith noted you can't expect the respondent to admit in the interview that he continues to have an interest in children it's just  the time no wait because she relied on actuarial instruments as i believe just as harris noted dr levitt in particular said it was a very close call whether or not the static ninety nine was appropriate to use in this case and the other experts agreed that it that it can be used with adults who have committed crimes that juveniles but it had to used with caution and here are three of the experts did conclude that that they say they felt it shouldn't be used but given all of the testimony and the fact that dr bellew smith said  that that she thought it was appropriate because the rules for applying the test say that if you've got a sixteen year old or a seventeen year old who who has committed an adult crime that meant exploration sexual exploration amongst peers well isn't it that application of the static ninety nine are i don't want to get to immerse them had taken her turn but that in terms of the evidence was there any evidence that it could be applied to an individual under age sixty i mean as i understand it the test can only be applied in individuals of a certain age and dependent on their conduct so i mean  couldn't have a twelve year old assess even if the conduct was adult in nature that's correct you're right so what was the evidence in terms of the age cutoff the age the evidence was that in order to apply the test at all that  time that the test is applied the offender has to be over the age of eighteen but looking back at past conduct in applying the coding rules if the sorry it should be used with caution and if that if the offender is sixteen or seventeen at the time that they commit the crime then you can be very confident that the static ninety nine well by if they were younger and the crime is juvenile in nature then it examination for argument at trial but the only question here is whether judge cavanagh made a rational decision to credit dr believe smith's testimony over the othe experts and here based on on testimony from all of the experts i think we can be confident that it was at least a rational decision that respondent posed a risk i'm happy to answer any other questions otherwise i would just ask that you affirm the judgment thank you thank you statute that mental disorder if the state is required to prove beyond a reasonable doubt that the mental disorder creates a substantial probability that he will negate an acts of sexual violence so the past conduct will inform the mental disorder mental disorder will one form a person's predisposition for future acts of sexual violence some likelihood some some chance is not enough under the statute to commit someone indefinitely in the st all those all that experts looked at different perspectives they did acknowledge that there was some risk a real facts however and knots were a rational trier of fact standard comes in the trial court was irrational and