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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II IN RE DETENTION OF MORGAN A. HEATH. No. 44137 - 3 -II UNPUBLISHED OPINION HUNT, J. — Morgan A. Heath appeals the trial court's order for civil commitment as a sexually violent predator ( SVP) under chapter 71. 09 RCW1. He argues that the trial court ( 1) 

### abused its discretion in denying his motion for mistrial based on juror misconduct; and ( 2) 

### violated his right to a unanimous jury verdict (a) in failing to instruct thejury that it must be unanimous aboutthe underlying reason for its finding him likelyto reoffend and (b) becausethe State failed to offer sufficient evidence to prove that Heath suffered from a mental abnormality 

### orspecific personalitydisorderthatwould make him likelyto reoffend. We affirm. FACTS I. BACKGROUND In 2003, Morgan A. Heath molested a two - year - old girl, the daughter of his father's girlfriend, four or five times over a few months; Heath was 14 years old at the time. Based on 

### these acts, Heath pled guilty to first degree rape of a child and was sentenced to Juvenile 1 " 

### Sexuallyviolent predatormeans any personwho has been convicted oforcharged with acrime of sexual violence and who suffers from a mental abnormality or personality disorder which 

### makes the person likelyto engage in predatory acts ofsexual violence ifnotconfined in asecure facility." RCW 71. 09.020( 18).No. 44137 - 3 -II Rehabilitation Administration (JRA) for a period of 15 to 36 weeks. 

### After completing his JRA sentence, Heath was released on community supervision. 

### Heath violated the terms of his community supervision by committing theft and false reporting in 2004. Between December" 2004 and August 2006, Heath was convicted for assaulting his girlfriends; thereafter, Heath violated no-contact orders for these girlfriends. In 

### January 2007, Heathwas chargedwith failureto registeras asex offender between November26 and December 14, 2006; he pled guilty,was sentenced tojail for 45 days, and was put underthe supervision of a community corrections officer (CCO), 

### NancyJo Nelson, for 12 months. In July 2007, Heath was again arrested for failure to register as a sex offender and forvarious violations
of his community supervision conditions, 

### including contact with a minor child. In April 2008, 

### Heath was arrested, and released, forthird degree malicious mischieffor beating in the windows of his girlfriend' s car.

In 

### July, while " released to the community," 

### Heath took ajob working at a carnival,which
violated his release condition not to be in the presence of minors; he was again arrested. 3 Verbatim Report of Proceedings (VRP) at 249. 

### When he was released from custody on August 

### 9, Heath walked to a festival where he interacted with an eight - year - old boy, put the boy on a horse, and started 

### leading the horse out of the park. Heath was again arrested. Shortly after Heath' s release fromjail, Nelson put him on GPS2 monitoring. 

### In June 2009, Heath wasjailed for 61 days for living in an unauthorized location and for going to a mall, where he could pick up young teenage girls, in violation of his community

2 " Global Positioning System" ( GPS). 2 VRP at 133. 2No. 44137 - 3 -II supervision conditions. In November, Heath was again charged with failure to register andjailed 

### forabout 90 days. He was released in February 2010 and again put on GPS monitoring. 

### Shortly after his release, Heath began violating his community supervision conditions again. 

### Nelson had told Heath he could not stay with his friend, Tammy Brown and her two children, one 13 years old and the other 12 years old. But Heath stayed at Brown' s house 

### without informing Nelson; instead, when Nelson called Brown, she lied to Nelson about where he was 

### living. There, he had multiple contacts with multiple children, including a 17-year - old girl, eight to ten other children at Brown' s apartment complex playground, a 10-year - old 

### developmentally disabled girl,andthree otherminor children. While playing with children atthe playground, Heath gave them " piggyback rides "; made sexual innuendos to them; and, when a 

### dog started " humping" Heath's leg, told the children to get down on their hands and knees to
mimic the 

### dog' s behavior. 3 VRP at 253. When Nelson learned that Heath was staying with 

### Brown and her children, she arrested him for several community supervision violations. 

### Nelson then learned that also in February 2010, Heath had sexually assaulted two 13- year -

old girls, JR and AC,3 one of whom had been staying at Brown' s house. Based on these 

### acts, Heath pled guilty to attempted communication with a minor for immoral purposes and fourth degree assault with a special allegation of sexual motivation. He was sentenced to 214 

### days in JRA, to run concurrently with his previous sentence, followed by atwo - year probation; the court also issued a no contact order with JR orAC.

3 It is appropriate to provide some confidentiality in this case. 

### Accordingly, we use initials to identifythejuveniles involved. 3No. 44137 - 3 -II II. PROCEDURE On August 30, 2010, while Heath was still incarcerated, the State filed a petition to commit Heath as a sexually violent predator ( SVP) under RCW 71. 09 et seq. The case 

### proceededto ajurytrial. A. Trial 1. 

### CCO NancyJo Nelson's testimony 

### Heath's CCO, Nancy Jo Nelson, testified that she had supervised Heath from February 2007 until he went to the Special Commitment Center (SCC) in 2010. Nelson described Heath's 

### multiple violations ofhis conditions ofrelease as previously set forth. Because Heath was again incarcerated, she would continue supervising him on community custody after " 

### he's finally
released again." 2 VRP at 155. 

### 2. Psychologist Dr.Amy Phenix's testimony Clinical psychologist Dr. 

### Amy Phenix testified that on August 10, 2010, she had conducted an initial evaluation of Heath to determine whether he had a mental abnormality that predisposed him to committing future criminal sexual acts. Dr. Phenix relied on Heath' s 

### criminal legal records, parole violation reports, police reports, charging documents, conviction documents; juvenile custody documents, and Heath' s treatment documents. She explained Heath' s criminal behavior as previously described. 

### Pertinent facts leading to Dr. Phenix' s 

### diagnoses were Heath's pattern and duration ofbehavior toward prepubescent children, including 

### his reported sexual fondling ofafourto five - year - old child when hewas 14; sexual molestation, 

### including penetration,ofatwo - year - old girl withwhom he admittedto being sexually interested; 

### and his masturbating to ongoing sexual fantasies about the two - year — old girl even during his
4No. 44137 - 3 -II period oftreatment. Dr. Phenix diagnosed Heath with pedophilia, a mental abnormality, and two personality disorders—

### antisocial personality disorderand borderline personality disorder. a. Pedophilia Dr. Phenix explained that in 

### diagnosing a person with pedophilia4, she looked for 

### individuals reporting abnormal sexual fantasies about children, generally age 13 years and younger. She had studied Heath' s behavioral pattern since he raped the two-year - old when he

was 14-years - old. She also considered Heath' s subsequent violations of community release conditions that had involved seeking out and 

### being in the presence of children: ( 1) After Heath' s 

### July 2008 release from custody back into the community, he had violated his release condition
not to be in the presence of children, when he worked at a carnival; (2) Heath had put an eightyear -

old 

### boy on a horse and started 

### leading the horse out of the park festival a month later; ( 3) Heath had spent the night with a friend who had a two - year - old child, deliberately putting himself in a high - risk situation; ( 4) Heath viewed pornography; ( 5) Heath had moved in with Brown, who had minor children; (6) Heath had given piggyback rides to children and induced 

## them to mimic adog's " humping behavior "5 while playing withthe children at aplayground in 2010; and (7) Heath had forced sexual acts with two 13- year - old females in 2010. Based on her

4 

### The State offered forthejury's consideration the Diagnostic and Statistical Manual ofMental Disorders ( 4th rev. ed. 2000) ( DSM or DSM-IV - TR) definition of " pedophilia," exhibit 21. 3 VRP at 239. The DSM is an American Psychiatric Association publication that provides criteria 

### for the classification of mental disorders. commonly used by mental health professionals to determine a patient' s diagnosis. 

### 5 3 VRP at253.
5No. 44137 - 3 -II 

### evaluation, Dr. Phenix concluded "to a reasonable degree ofpsychological certainty" that Heath had pedophilia. 3 VRP at 256. 

### b. Antisocial personality disorder

Dr. Phenix explained that an individual has antisocial personality disorder6 when he or she violates the rights of others, engages in criminal behaviors, and is generally associated with jail terms, going to prison, and incarceration for criminal behavior. Dr. Phenix also explained 

### that personality disorders can "further sex offending" because such individuals tend to disregard the law. 3 VRP at 258. 

### Dr. Phenix diagnosed Heath with antisocial personality disorder because ofhis repeated failures to conform to social norms with lawful behaviors: ( 1) Heath was engaged in a number
of domestic violence incidents with various girlfriends; (2) Heath had been in and out ofcustody
since the age of 14; ( 

### 3) Heath had a striking lack ofcompliance with community supervision or parole; ( 4) Heath exhibited deceitfulness 

### by denying his criminal sexual behavior; ( 5) Heath 

### demonstrated significant impulsivity and an inability to consider the consequences of his behaviors, such as molesting his father's girlfriend's two-year - old daughter; and ( 6) Heath's uncontrolled violent tendencies resulted in his engaging in fights with teachers and peers in school and being aggressiveto his peers injuvenile custody.

Dr. Phenix also assessed Heath on a Hare Psychopathy Checklist-Revised ( PCL - R)7, through a series of interviews and review of past records. Heath scored a 33 out of 40 on the 

### 6 The State also offered the DSM definition of "antisocial personality disorder" as an illustrative exhibit forthejury. 3 VRP at257. 7 The State introduced the PCL - R as an illustrative exhibit.No. 44137 - 3 -II PCL - R, in the high range; this high score signaled to Dr. Phenix that Heath ( 1) had a high psychopathy, ( 2) had a stronger than average propensity for violent behavior in the future, (3) 

### would likely engage in future violations of community supervision and a greater than average amount of future sexual criminal behavior, and (4) suffered from a pervasive and " particularly 

### severe" form ofantisocial personality disorder. 3 VRP at 271. c. Borderline personality disorder Dr. Phenix also diagnosed Heath with borderline personality disorder. 8 She explained 

### that, unlike antisocial personality disorder, borderline personality disorder focuses more on maladaptive relationships with others and involves an impaired ability to develop and to
maintain close friendships and intimate relationships. 3 VRP at 272. Dr. Phenix found that 

### Heath had traits of borderline personality disorder, including lengthy histories of troubled relationships, such as ( 1) abandonment 

### by his mother; (2) " clingy " 

### 9 behaviorwith his girlfriends,
which led to arrests for stalking; (3) physically assaulting his girlfriends; (4) impulsive behavior
and alcohol abuse; (

### 5) suicidal behaviors, a common symptom ofborderline personality disorder; 

### and (6) mood instability. Dr.Phenix opinedthat althoughborderline personality disorderdid not have "the strongest relationship" in this case, itwas likelyto leadto inappropriate sexual activity 

### because it affects.Heath's choice - making andthe persons withwhom he interacts. 3 VRP at276. Dr. Phenix reiterated that she had diagnosed Heath with both antisocial personality disorder and borderline personality disorder. 

### 8 The State introduced the definition of "borderline personality disorder" from the DSM - IV - TR as an illustrative exhibitforthejury. 3 VRP at 271. 

### 9 3 VRP at273.
7No. 44137 - 3 -II d. " Mental abnormality" Dr. Phenix then opined about Heath' s " mental abnormality. "10 3 VRP at 277. She 

### explained that "mental abnormality" is a condition that affects either the volitional or emotional capacity of a person, for example, predisposing a person to act out in criminal sexual ways. 3 VRP at 279. Dr. Phenix opined that Heath's pedophilia constituted a mental abnormality that
affected his emotional capacity: For example, when Heath tried to engage in sexual intercourse
with the two - year -

old, he penetrated her; and when she screamed, he said, " 

### If you don't stop screaming, I will push it in farther," 

### demonstrating that Heath could not appreciate the pain he caused to others. 3 VRP at 279. Dr. Phenix also opined that (1) Heath' s pedophilia predisposed him to commit criminal sexual acts that menaced the health and safety of others; (2) Heath had a 

### mental abnormality to a reasonable degree ofpsychological certainty; and (3) Heath had serious difficulty controlling his sexually violent behavior, to which his personality disorders also
contributed.

Dr. Phenix further testified that Heath had reoffended in 2010, " has not been out in the community since that time," and had not completed treatment. 3 VRP at 310. Dr. Phenix also 

### considered how safe Heath would be in the community " should he be released" and that Heath had about a year and a half left of parole or community supervision " once he' s released." 3 VRP
at 311. 

### Dr. Phenix opined that Heath was not "safe to be released to the community until he has
sufficient treatment and demonstrated that he can comply with conditions." 3 VRP at 312. Dr.

1° 

### The State offered the definition of "mental abnormality" as an illustrative exhibitforthejury. 3 VRP at 277. 8No. 44137 - 3 -II Phenix concluded that Heath is a high risk sex offender and that he should remain confined for treatment. 3 VRP at 313. B. Motion for Mistrial 

### Juror9 wrotethefollowing noteto thetrial courtone day aftertrial proceedings: A]t 4:20 pm we asjurors were wanting to leave in

### jury room. [ A]jur[or] said " Is he incarcerated now ?" a couple jur[ ors] said yes. One jur[or] was talking to a friend jur[ or]. 

### She stated something like this may notbe exactwords "yes he is." I ... looked to see where he was on the internet and the otherjur[or] said "where is he." . She shook her head but I did not hear what she said. Clerk' s Papers ( CP) at 863. 

### The nextday,the trial court held ahearingto address Juror9' s note. Heath moved for mistrial based on possible juror misconduct. The trial court opined that the 

### prejudice was not great enough to declare a mistrial and suggested bringing the jury in to question them 

### individually. The trial court then spoke with Juror 9, who said she had not told
anyone she had sent the note to the court. The trial court said it was " 

### going to keep this
anonymous from the otherjurors." 4 VRP at 325. Next, the trial court called the otherjurors 

### individually to askwhetherthere had been any discussion about ajuror's looking up Heath on the internet. All the jurors responded in the negative. 

### Juror 11, who had allegedly done an internetsearch for Heath,told the courtthat (1) she had usedthe Kitsap County website forwork but had not looked up anything about Heath; (

### 2) she had told Juror 8 about having been on the 

### Kitsap County website, which she used forworkon a daily basis, hence chancing upon Heath's 

### name; and (3) knowing Heath's name showed up on the Kitsap Countywebsite would not have impaired her ability to hear the case 

### fairly. Juror 8 reported that (1) he did not hear anyjurors talk about looking up Heath on the internet; ( 2) " somebody said something about they were wondering ... whether. or not he was incarcerated," 4 VRP at 348; and ( 3) such information
9No. 44137 - 3 -II

would not impact his ability to serve as a juror because he " would assume most people are incarcerated ifthey are in this situation." 4 VRP at 348. 

### Juror 13 did not hear anything about 

### Heath or anyone talk about searching the internet, but someone had commented about Dr. Phenix's " articulating" speech. 4 VRP at 332.

The trial court decided not to declare a mistrial because ( 1) the fact of Heath' s 

### incarceration was well knownto thejury panel; and (2) reinstruction ofthejurywas sufficientto take care of the issue. 

### Heath's incarceration since February 2010 had come to the jury's 

### attention in many different ways, and there had been no motions in limine to keep such information from the

### jury. 

### The trial court also noted that Juror 11 was very clear that she had 

## merely made a remark or mention about Heath's possible incarceration and thatthere had been

no discussion beyond that remark. 

### Juror 8 similarly reported that there had been no discussion about Heath's incarceration and that it had been apassing remark. 

### The trial court again called Juror 13 to clarify the comment about Dr. Phenix; Juror 13 responded there had been a comment about Dr. Phenix' s speech 

### being " so articulated," but she Juror 13) had heard nothing about incarceration. 4 VRP at 355. Heath argued that the juror' s
comment about Dr. Phenix' s 

### being articulate was a comment on the evidence. Disagreeing, the trial court ruled that ( 1) the comment about Dr. Phenix' s speech was not a comment on the 

### evidence or her credibility, but rather about how Dr. Phenix had appeared to thejury; and (2)
such a comment did not rise to the level of unfair prejudice that would taint the

### jury panel. The

10No. 44137 - 3 -II
trial court then brought in the entire

### jury, read them the " fair trial" 11 instruction again, and reminded them not to talk or research outside the courtroom. 4 VRP at 365. C. Post mistrial motion trial testimony 

### Afterthetrial courtdenied Heath's motion foramistrial,the trial testimony resumed. 1. Heath Heath testified that his halfbrothers had molested him when he was six years old. Heath described his feelings toward his molestation of the two - year -

old girl as " nightmares" and not fantasies." 5 VRP at 467. 

### Concerning his sexual assaults ofthe two 13-year — old girls, Heath explained thathe hadtaken anAlfordplea12 because he did notthink ajurywould believe hewas innocent, even though the assaults were " something [he] didn' t do." 5 VRP at 472. As for the 

### 2004 assault ofhis ex-girlfriend, Heath stated that although he had pushed her into a car, he did
not mean to do so. With respect to his 2005 assault of another ex-girlfriend, Heath denied 

### having tackled her inthe school parking lot,eventhough hehad pled guilty. Heath also admitted he worked at the carnival in 

### July 2008. He also explained that he had been incarcerated at the SCC " for a while now." 5 VRP at 471. 

### 11 The instruction stated, in pertinent part: 

### It is essential for afairtrial that everything you learn aboutthis case comes to you in this courtroom, and only in this courtroom. 

### There should not be any discussions about anything about the case with any fellow jurors, 

### family members, or friends until you are released from that instruction. Until you are dismissed, again, at the end ofthe trial, you must avoid any outside sources such as newspapers, magazines, blogs, the Internet, or radio or television broadcasts. 4 VRP at 365 12 North Carolina v.Alford,400 U.S. 25, 37, 91 S. Ct..160, 27 L. Ed. 2d 162 ( 1970). 11No. 44137 - 3 -II 2. Dr. Luis Rosell Dr. Luis Rose11, a psychologist, testified on behalf of Heath, and stated that he did not 

### agree with Dr. Phenix' s diagnosis ofpedophilia and Dr. Phenix's opinion that Heath was likely to reoffend. Dr. Rosell opined that Heath's sexual assault of the 13 -year - olds should not have been considered in Heath' s pedophilia diagnosis because their statements were inconsistent. Dr. 

### Rose11 did, however, diagnose Heath with antisocial personality disorder. 3. AC 

### AC testified that around February 2010, when she had stayed at Brown's house, Heath had sat on a couch nextto her, pinned her down, kissed her, and raped her. 

### D. Jury Instructions 

### When the trial court discussed the parties' proposedjury instructions, Heath requested a Petrich13 instruction; the State objected that such instruction was neither appropriate nor required in SVP cases. Heath told the trial court to " take [ his Petrich instruction request] under
advisement." 6 VRP at 647. The State told the trial courtthat it had found a case, In re Det. of Halgren, 156 Wn.2d 795, 807, 132 P.3d 714 (2006), which stood for the proposition that it was inappropriate in SVP cases to give a Petrich instruction. Heath did not object. And the trial 

### courtproceeded, without giving aPetrich instruction. 

### Thejury found that the State had proved beyond a reasonable doubt that Heath was a SVP. Heath appeals.



### 13 State v. Petrich, 101 Wn.2d 566, 572, 683 P.2d 173 ( 1984). 12No. 44137 - 3 -II ANALYSIS I. JUROR MISCONDUCT Heath argues that repeated instances ofjuror misconduct violated his right to a fair trial. Heath specifically asserts that the jurors engaged in misconduct 

### by ( 1) gathering extrinsic evidence of Heath' s incarceration and presenting it to the other jurors; (

### 2) lying about having discussed Heath' s incarceration; (

### 3) ignoring the trial court's instruction not to discuss the case or evidence until deliberations; and (4) expressing praise for Dr. Phenix before Heath cross - examined her, and before deliberations, which conduct we should presume was prejudicial. 

### Even assuming, without deciding, that the jury engaged in misconduct, the misconduct that Heath asserts does not warrant a new trial. 

### Atrial court's decision to deny or grant a motion for mistrial is a matter addressed to the sound discretion ofthe trial court, which we review for abuse ofdiscretion. State v. Tigano, 63 Wn.

### App. 336, 342, 818 P.2d 1369 ( 1991), review denied, 118 Wn.2d 1021 ( 1992). A trial court 

### abuses its discretion when it acts on untenable grounds or its ruling is manifestly unreasonable. State v. Barnes, 85 Wn. App. 638, 669, 932 P.2d 669, review denied, 133 Wn.2d 1021 ( 1997). Litigants are entitled to a fair trial, not a perfect one. McDonough Power 

### Equip., Inc. v. Greenwood, 464 U.S. 548, 553, 104 S. Ct. 845, 78 L. Ed. 2d 663 ( 1984). As a general rule, an appellate court is reluctant to inquire into how a

### jury arrived at its verdict. State v. Balisok, 123 Wn.2d 114, 117, 866 P.2d 631 ( 1994). 

### Courts grant a newtrial only wherejuror misconduct1141 14 The introduction ofextrinsic evidence by ajurorto fellowjurors isjurormisconduct and can be grounds for a newtrial. Balisok, 123 Wn.2d at 118. Extrinsic evidence is information, oral or 

### documented, that is outside all the evidence admitted attrial. Balisok, 123 Wn.2d at 118.
13No. 44137 - 3 -II 

### has prejudicedthe defendant. State v Earl, 142 Wn.App. 768, 774, 177 P.3d 132, review denied, 164 Wn.2d 1027 (2008); see also CrR 7.5( a) ( new trial warranted only where a " substantial right ofthe defendantwas materially affected[.] "). 

### Heath argues that jury misconduct is presumed prejudicial and that the State failed to prove, beyond a reasonable doubt, thatthe misconduct could not have affected thejury's verdict. 

### We may presume prejudice on a showing of misconduct; but such a presumption can be overcome by "an adequate showing thatthe misconduct did notaffectthe [jury's] deliberations." State v. Depaz, 165 Wn.2d 842, 856, 204 P.3d 217 (2009). Here, regardless ofwhether prejudice 

### is presumed intheory,the alleged misconduct could nothave affectedthejury'sverdict.

First, contrary to Heath' s assertion, Juror 11' s internet information about Heath' s 

### incarceration was not " extrinsic evidence" because thejury had already heard other evidence of Heath' s incarceration 

### during tria1. 15 Balisok, 123 Wn.2d at 118 ( extrinsic evidence is information outside all the evidence admitted at trial); 

### Meerdink v. Krieger, 15 Wn. App. 540, 546, 550 P.2d 42, review denied, 87 Wn.2d 1011 ( 1976) ( 

### deliberating juror's factual assertions about amount of damages did not warrant new trial when amount of damages was within the testimony presented attrial). 

### 15 For example, on October 9, the jury heard Heath's deposition clip in which he repeatedly referred to 

### being at the SCC, that he was " locked up," 

### that had no contact with his family since he had been at the SCC, and that he had been incarcerated since about 

### February 2010. CP at 540. Dr. Phenix also testified that ( 1) Heath " has not been out in the community since" he reoffended in 2010, 3 VRP at 310; ( 2) Heath would 

### likely reoffend " should he be released," 3 VRP at 311; ( 3) Heath had about a year and a halfleft ofparole or community supervision " once he' s released," 3 VRP at 311; and (4) Dr. Phenix she did not think "that he is safe to be released 

### to the community until he has sufficient treatment and demonstrated that he can comply with conditions." 3 VRP at 312. 14No. 44137 - 3 -II 

### Second, the instructions stated that for the jury to find Heath a SVP, the State had to prove that (1) he had been convicted of a crime ofsexual violence, here, first degree child rape; 

### 2) he sufferedfrom amental abnormality orpersonality disorderthatcaused serious difficulty in 

### controlling his sexuallyviolent behavior; and (3) his mental abnormality or personality disorder
made him 

### likely to engage in predatory acts of sexual violence. All three factors were clearly 

### established independent ofany information about Heath's incarceration.

Heath conceded his first degree child rape conviction. Dr. Phenix testified
with fact -

based support, that to a reasonable degree of psychological certainty, ( 1) Heath
suffered from pedophilia and two personality disorders —

### antisocial personality disorder and 

### borderline personality disorder; and (2) Heath had a stronger propensitythan the average person to engage in violent behavior, violations of community supervision, and a greater amount of 

### future sexual criminal behavior; and (3) Heath's borderline personality disorder would likely to 

### lead to inappropriate sexual activity because it affected his choice - making and with whom he interacted.

We hold that, based on the substantial evidence already before the 

### jury, no juror 

### misconduct prejudiced the outcome of the trial, the jury would have found Heath was a SVP regardless ofthe allegedjuror misconduct, and Heath is not entitled to a new trial on this ground. Therefore, we affirm the trial court's denial ofHeath's motion for a mistrial. 

### 16 Heath also asserts thatjuror misconduct occurred whenjurors commented about Dr. Phenix' s articulateness 

### during her testimony. 

### Heath provides no authority or further supporting argument 

### forthe proposition that expressing praise for an expertwitness's articulateness constitutesjuror misconduct. Becausethis asserted error lacks developed supporting argumentas RAP 10.3(a)(6) requires, we need not further consider it. Nevertheless, even had Heath developed this argument, he fails to show resulting prejudice.
15No. 44137 - 3 -II II. UNANIMITY INSTRUCTION 

### Heath next contends that he was denied his right to a unanimous jury because the trial 

### court (1) failed to instruct thejury on the need for unanimity about which ofhis multiple mental disorders underlay its SVP determination, and (2) the State did not offer sufficient evidence to support each alternative means. This argument fails. 

### RCW 71.09.060 provides thatwhen ajury determines aperson is a SVP, the verdict must be unanimous. Under RCW 71. 09.020( 18), 

### a SVP is any person who has been convicted ofor charged with a crime of sexual violence and who suffers from a mental abnormality or a 

## personalitydisorderthatmakestheperson likelyto engage inpredatoryacts ofsexualviolence if not confined in asecure facility.

Our Supreme Court has held that ( 1) the alternative means test applies to SVP proceedings, and ( 2) the SVP statute allows two alternative means — "mental abnormality" and personality disorder " — to support a SVP determination. Halgren, 156 Wn.2d at 810, 811. 

### Althoughthe State need prove only one alternative meansto support aSVP determination,where the evidence is sufficient to prove both alternative means ( mental abnormality and personality disorder) beyond a reasonable doubt, a trial court does not violate the SVP' s constitutional right 

## to unanimity byfailing to instructthejurythat it mustbe unanimous aboutwhich means itused to support its SVP determination. Halgren, 156 Wn.2d at 811, 812. Ifin addition to or in lieu of 

### the mental abnormality means,the SVP suffers from two personalitydisorders,thejury need not

16No. 44137-3- 11

be unanimous about which personality disorder contributed to its SVP determination. See In re 

## Det.ofSease, 149Wn.App.66,78 -79,201 P.3d 1078,reviewdenied,166Wn.2d 1029 (2009).17

Halgren suffered from " at least" 

### one mental abnormality and one personality disorder. Halgren, 156 Wn.2d at 800. 

### Halgren argued that the trial court should have instructed the jury 

### that it had to agree unanimously about whether it was his mental abnormality or personality disorder that caused him to be a SVP. Halgren, 156 Wn.2d at 807. The Supreme Court rejected 

### this argument because there was sufficient evidence of both the mental abnormality and the 

### personality disorder, noting that "because an SVP may suffer from both defects simultaneously, the mental illnesses are not repugnant to each other and may inhere in the same transaction." Halgren, 156 Wn.2d at 810. 

### To determine whetherthejury's SVP verdict was based on substantial evidence ofboth
alternative means here, we must determine whether the evidence, " viewed in a light most 

### favorable to the State, is sufficient to persuade a fair - minded, rational person that the State has 

### 17 More specifically,aswe held inSease:

The SVP statute delineates two alternatives for satisfying the State's burden of establishing a mental condition " 

### which makes the person likely to 

### engage in predatory acts ofsexual violence ifnot confined in a secure facility" — mental abnormality or personality disorder. RCW 71. 09. 020( 16). There is no 

### dispute thatSease sufferedfrom one or,possibly,twopersonality disorders. 

### As in [In re Pers. Restraint Petition ofPatrickJames Jeffries, 110 Wn.2d 326, 752 P.2d 1338, cert. denied, 488 U.S. 948 ( 1988)], 

### the jury here need only 

### have unanimously found that the State proved that Sease suffered from a 

### personality disorder that made it more likely that he would engage in acts of sexual violence if not confined to a secure 

### facility. 

### The jury need not have 

### unanimously decidedwhetherSease sufferedfrom borderlinepersonality disorder or antisocial personality disorder. 

### Therefore, the trial court did not err in failing 

### to give a unanimity instruction and it is not an error that Sease can raise for the first time on appeal. 

### Sease, 149 Wn.App. at 78 -79 (emphasis added).
17No. 44137 - 3 -II
proved beyond a reasonable doubt that [ the defendant] is a sexually violent predator." State v. Hoisington, 123 Wn. 

### App. 138, 147, 94 P. 3d 318 ( 2004), review denied, 153 Wn.2d 1031 2005). " The substantial evidence test is satisfied ifthis court is convinced that `a rational trier 

### of fact could have found each means of [fulfilling the SVP requirements] proved beyond a reasonable doubt. "' 

### Halgren, 156 Wn.2d at 811 ( quoting State v. Kitchen, 110 Wn.2d 403, 410- 11, 756 P.2d 105 ( 1988)). 

### Here, there was substantial evidence ofboth Heath's personality disorders andhis mental 

### abnormality, either ofwhich alternate means would supportthejury's determination that Heath is a SVP. Dr. Phenix testified at length about Heath's pedophilia,antisocial personality disorder, and borderline personality disorder. Dr. Phenix also opined, to a reasonable degree of psychological certainty, that ( 1) Heath's pedophilia constituted a mental abnormality that 

### affected his emotional capacity and predisposed him to commit criminal sexual acts that
menaced the health and safety of others; and ( 2) Heath' s personality disorders — antisocial personality disorder ( predominantly) and borderline personality disorder — contributed to his sexually violent behavior, which he had serious 

### difficulty controlling. Here, a rational trier of 

### fact could have found each means ofbeing a SVP beyond areasonable doubt. Viewing the evidence in the light most favorable to the State, we hold there was sufficient evidence to persuade a fair - minded rational person beyond a reasonable doubt that 

### Heath suffered from both personality disorders and a mental abnormality, each and both of which made him more likelyto engage in predatory acts ofsexual violence ifnot confined to a

18No. 44137 - 3 -II

secure 

### facility. See Halgren, 156 Wn. 2d at 811; Sease, 149 Wn. App. at 80. Accordingly, we affirm.

### 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.

We concur: 

### F 3rgej', A.C..I.
Lee,

19