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### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Detention of

MICHAEL BARGAS NO. 69844-3-1 DIVISION ONE UNPUBLISHED OPINION FILED: June 2, 2014 

## LAU]j

_ Following abenchtrial, the superiorcourtfound thatMichael Bargas 

## has apersonalitydisorderandmental abnormalitiesthatmakehimlikelytoengagein sexual violence and thatrequire his commitmentas asexuallyviolentpredator. 

## Becausethe court'sfindings are supported by substantial evidence, thefindings support thecourt's conclusions oflaw, and Bargas's claim regarding theconditions ofhis confinement is not properly before us, we affirm. FACTS 

## In 1987, ajuryconvicted Bargas offorcibly raping a38-year-oldfemale 

## acquaintanceduring aburglary. In 1990,fourmonths afterhis releaseontheprior offense, the Statecharged Bargaswith second degree rape. He pleadedguiltyto an 

## amended chargeofthird degree assaultwith sexual motivation. In 1997, Bargas69844-3-1/2 

### pleaded guiltytofirst degree child molestation involving a nine-year oldgirl. In 2011, the State of Washingtonfiled a petition alleging that Bargas is a sexuallyviolent predator (SVP). 

### Attrial, the State's principal witness was Dr. Henry Richards, a psychologistwith extensive experience inthe evaluation, diagnosis, and treatment ofsex offenders. He 

### reviewed several thousand pages of records, including police reports, legaldocuments, health information, previous psychological evaluations, and records from the Department ofCorrections. He also interviewed Bargas. Dr. Richards concluded that Bargas suffers from antisocial personality disorder 

### (ASPD), alcohol abuse, polysubstance dependence, severe psychopathy, and deviant sexual arousal. In his opinion, Bargas's personality disorder constitutes both a mental 

### abnormality and a personality disorder under RCW 71.09.020(18).1 His alcohol abuse and polysubstance dependence also constitute a mental abnormality. Dr. Richards testified that these disorders cause Bargas serious difficulty in controlling his sexually
violent behavior. To evaluate the relationship between Bargas's disorders and his lack ofcontrol, Dr. Richards looked at the disorders in the context of Bargas's life and offending behaviors. He testified that "the most basic contextual problem is [Bargas's] personality disorder, Antisocial Personality Disorderwith severe psychopathy" and that these

1RCW 71.09.020(18) provides: "Sexually violent predator" means any person 

### who has been convicted of or charged with a crime ofsexual violence and who suffers from a mental abnormality or personality disorder which makes the person likely to 

### engage inpredatory acts ofsexual violence if not confined in a secure facility.69844-3-1/3
conditions drive his sexual opportunism. 3 Verbatim Report of Proceedings (Dec. 11, 2012) (3 VRP) at 142-43. Dr. Richards testified that Bargas is a type ofrapist who is 

### motivated by antisociality. "[A]nti-sociality is enough, just enough without substance abuse, to motivate [his] rapist type." 3 VRP at 151. 

### The psychopathy component ofBargas's antisocial personality disorder also 

### plays a significant role in his lack of control. Dr. Richards testified that psychopathy indicates biological and neurological differences that have "a social psychological 

### expression." 3 VRP at 96. Psychopathy is a significant predictor of reoffense when, as in Bargas's case, it is found in combinationwith deviant sexual arousal. According to Dr. Richards, some studies show a six-fold increase for reoffense when a person has both deviant sexual arousal and high psychopathy. 

### Dr. Richards concluded that Bargas's disorders and/or abnormalities cause him 

### serious difficulty controlling his behavior and that, morelikelythan not, hewill reoffend 

### in a sexually violentwayifnotconfined. He based thatconclusion in part onactuarial tools, clinical factors, dynamic risk factors and lifestyle and personality patterns. Dr. Chris Fisher, an expert retained by Bargas, reviewed the discovery, 

### depositions, and otherrecords andinterviewed Bargas. He agreed thatBargas suffers from antisocial personality disorder and polysubstance abuse. He disagreed, however, 

### that Bargas's mental abnormalities renderhim unable tocontrol his sexualimpulses. He testified that antisocial personality disorder does not, byitself, cause sexual 

### offending. Noting thatall ofBargas's offenses involved theheavy use ofalcohol and otherdrugs, hetestified thatBargas's risk ofreoffense would be"infinitesimal ifhe maintained a sober and healthylifestyle going forward." 5Verbatim Report of
-3-69844-3-1/4 Proceedings (Dec. 13, 2012) (5 VRP) at 10. But even ifBargas did not remain sober, Dr. Fisher believed his risk of reoffense would be less than fifty percent. Several additional defense witnesses testified to Bargas's religious convictions, 

### his good character, and the supportthey could provide him inthe community. The trial court found Dr. Richards more qualified and credible than Dr. Fisher and concluded that the State had carried its burden. The courtfound that Bargas "suffers 

### from alcohol abuse . . . , poly-substance dependence, and anti-social personality 

### disorderwith an extreme level ofpsychopathy. [He also] has deviant sexual arousal." 

### Finding of Fact (FF) 13. The combination ofthese conditions cause Bargas "serious 

### difficulty controlling his sexually violentbehavior." FF 15. Based on Dr. Richards' testimony, the court found that Bargas's "mental abnormality and/or personality disorder make him likely to engage in predatory acts of sexual violence if not confined in a 

### secure facility." FF 20. The court concluded that the State provedthese elements 

### beyond a reasonable doubt and that Bargas is a sexually violent predator as defined in RCW 71.09.020(18). Bargas appeals. STANDARD OF REVIEW 

### We applycriminal standards ofreview to appeals from sexuallyviolentpredator 

### proceedings. In rePet, ofThorell, 149Wn.2d 724, 744, 72P.3d 708(2003). In an appealfollowing a benchtrial, wereview challenged findings offact to ensure that they 

### aresupported by substantial evidence. Statev. Madarash, 116Wn. App. 500, 509, 66 P.3d682 (2003). "Substantial evidence is evidence sufficientto persuade afair

### minded, rational person ofthetruth ofthefinding." Madarash, 116Wn. App. at509. We considerthe evidence in the light most favorable to the State and treat
-4-69844-3-1/5 

### unchallenged findings of fact as verities. Madarash, 116Wn.App. at 509. The weight, credibility, and persuasiveness ofthe evidence are matters for the trier offact and will 

### not be reviewed. State v. Walton. 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992). We reviewchallenged conclusions of law de novo, determining whetherthey are supported bythe findings of fact. Madarash, 116 Wn. App. at 509.
DECISION 

### To commit a person as a sexually violentpredator, the State must prove beyond
a reasonable doubt that the person "has been convicted of or charged with a crime of sexual violence and
. . . suffers from a mental abnormality or personality disorderwhich makes the person likely to engage in predatory acts of sexual violence if not confined in
a secure facility." RCW 71.09.020(18). Bargas contends "the State failed to present substantial evidence that [his] ASPD, substance abuse, and psychopathy renders him so unable to control his sexual 

### impulses that he must be confined to a secure facility." Br. ofAppellant at 7. According to Bargas, "it is clearfrom Dr. Richards' testimony that Mr. Bargas' history of sexual offending is the result ofsubstance abuse and a criminal lifestyle, and not the result of a mental condition that causes an ongoing and serious inability to control his sexual behaviors." Br. ofAppellant at 10. He notes that Dr. Richards testified during his deposition "that all of [Bargas's] sex offenses were related to his substance abuse and that ifhe remained sober he would not be likely to reoffend." Br. ofAppellant at 14. He claims this testimony shows that his "sexual offending is actually the result of substance abuse and a criminal lifestyle, not a mental condition" and that he does not lack69844-3-1/6 

### volitional control; rather, he isjust "more likely to choose to commit sexual offenses 

### while intoxicated "2 Br. ofAppellant at 10, 13. We disagree for several reasons.


### 2The Statecorrectlypoints out that Bargas'sopening briefviolates RAP 10.3(g) because itdoes not assign error to specific findings and conclusions. However, 

### because it is notdifficultto deduce which findings are challenged in the opening brief, we exercise our discretion to considerthe merits ofBargas's arguments despite his noncompliance with the RAP. State v. Olson, 126 Wn.2d 315, 323, 893 P.2d 629 

### (1995) (appellate court has discretion to lookpasttechnical violations of RAPs). The 

### following findings are expressly challenged by Bargas in his replybrief: "13. Respondent suffers from alcohol abuse (possibly dependence), poly substance dependence, and anti-social personality disorderwith an extreme level of psychopathy. Respondent has deviant sexual arousal. 

### "14. Respondent's mental disorders are acquired or congenital conditions that affect Respondent's emotional and volitional capacity and predispose him to commit 

### sexual acts to a degree constituting him a menace to the public health and safety. "15. The combination ofRespondent's alcohol abuse, poly-substance 

### dependence, anti-social personality, severe psychopathy and deviant sexual arousal cause Respondent serious difficulty controlling his sexually violent behavior. "16. The parties presented conflicting evidence about Respondent's risk of 

### reoffending ifreleased to the community. While Dr. Fisher attempted to reduce the concept of likelihood ofreoffending to a purely mathematical formula, Dr. Richards recognized the need to consider many factors in assessing Respondent's risk of reoffending, including dynamic risk factors, clinical risk factors, actuarial risk and lifestyle factors, in reaching his opinion. "17. Both Dr. Richards and Dr. Fisher scored Respondent on the Static 99R actuarial instrument. Dr. Richards' use and application ofthe Static 99R supports his opinion and this court's finding that Respondent is likely to re-offend if not confined to a secure facility. "18. Both psychologists also scored Respondent on the Hare Psychopathy Checklist- Revised (PCL-R), but Dr. Richards' experience, training, and scoring of Respondent on this instrument is more reliable than Dr. Fisher's. Respondent's psychopathy, as shown by his high score on the PCL-R, and his history as a mixed rapist-child molester, supports Dr. Richards' opinion, and this court finding, that Respondent is likely to reoffend ifnot confined in a secure facility. "19. Dr. Richards' risk assessment is more credible and it is based on dynamic risk factors, clinical risk factors, actuarial risk and lifestyle. Respondent is likely to commitfuture acts of sexual violence ifnot confined in a secure facility. "20. Based on all the evidence presented, the Respondent's mental abnormality and/or personality disorder make him likely to engage in predatory acts of sexual violence if not confined in a secure facility." Bargas also challenges conclusions of law 4, 5, 6, 7, and 8 in his reply brief. Those conclusions state in pertinent part that Bargas has a mental abnormality and69844-3-1/7 First, it is not necessary to prove that Bargas lacks all control over his actions in 

### orderto commit himas an SVP. It is sufficient to show that he has "serious difficulty" controlling his behavior. Thorell. 149 Wn.2d at 742; Kansas v. Crane. 534 U.S. 407, 413, 122 S. Ct. 867, 151 L. Ed. 2d 856 (2002). Second, Dr. Richards did not testify that Bargas's acts are volitional or that he simply chooses when to offend. Rather, he testified that he diagnosed Bargas with a "mental abnormality," which by definition "impairs the person's ability to make a free choice
.. . ." 3 VRP at 79-80. One of Bargas's mental abnormalities—antisocial personality disorder—manifests itselfthrough impulsivity and reckless disregard for others. Although Dr. Richards believed that Bargas "doesn't want to hurt anybody," his "Antisocial Personality Disorder drives him toward certain opportunistic exploitative situations, environments." 3 VRP at 143 (emphasis added). A significantfeature of Bargas's personality disorder—psychopathy—is characterized by "significant brain differences, psychophysiological reaction differences" that are "more defined as a 

### biological neurological entity that has a social psychological expression." 3 VRP at 96. When asked ifBargas's personality disorder or mental abnormality cause him serious difficultycontrolling his behavior, Dr. Richards said, "Yes." 3 VRP at 142. Third, Bargas misrepresents the record. Dr. Richards did state in his deposition 

### that ifBargas "were successfully to remain soberthe rest of his life, perhaps there



### personality disorderthat cause himserious difficulty controlling his sexually violent behavior, that he is likely to engage inpredatory acts ofsexual violence ifnot confined, and that he is a sexually violent predator.

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would be no new sexual offenses. I'd say more likelythan not there would not be." But at trial, he explained that without the drug and alcohol problems, Bargas would be a different person. Ifhe had a different history he would be a different person. Iwould have a different opinion. Ifhe were different itwould be different. Ifyou remove the drug and alcohol history and keep the offenses it might not change my opinion. Inother words, the offenses are still there. And ifI still see the antisocial personality disorder and other deficits Iwould still be more likely than not. But I'm assuming, you know, ifeverything was different, everything would be different. He wouldn't have these offenses and we wouldn't be sitting here. 

### 4 RP (Dec. 12, 2014) at 116-17 (emphasis added). This testimony clarified 

### Dr. Richards' earlier statements and, togetherwith his other testimony,3supports the court's findingthat Bargas's mental disorders make himlikely to engage inpredatory acts ofsexual violence if not confined. Any conflict between Dr. Richards' deposition 

### and trialtestimony was a matterfor the trier of fact. Walton, 64 Wn.App. at 415-16. Fourth, even if Dr. Richards had testified that Bargas commits crimes primarily because of his substance abuse and dependence, he testified that Bargas's substance 

### abuse and dependence are a mental abnormality warranting commitment under chapter 71.09 RCW. When coupled with an individual's history ofsexually predatory acts, a 

### mental abnormality supports a conclusion that the person has serious difficulty controlling his or her behavior. Thorell. 149 Wn.2d at 742.

3Dr. Richards also testified that "anti-sociality is enough, justenough without 

### substance abuse, to motivate [Bargas's] rapist type," that Bargas's "most basic 

### contextualproblem is his personalitydisorder,Antisocial PersonalityDisorderwith 

### severe psychopathy," that these conditions drive his sexual opportunism, and that without them Dr. Richards would notexpectto "be seeing multiple sexual offenses." 3 VRP at 151, 142-143. -8-69844-3-1/9 Bargas next contends the State failed to prove that he currently suffers from conditions that make him likely to commit crimes of sexual violence. He claims that his plethysmograph test results, actuarial risk scores, and good behavior and sobriety in prison indicate that he is currently a low risk for reoffense. He concludes that even when viewed inthe light most favorable to the State, the State's evidence was not sufficientto show that he currently suffers from conditions that render him likely to reoffend ifnot confined. Again, we disagree. Both experts testified that the plethysmograph results were inconclusive and provided no useful information. Bargas's own expert, Dr. Fisher, testified that he is "not 

### a bigbeliever inPPGs to begin with," that "[t]heydon't really tell us anything," and that Bargas's inconclusive test didn't provide "anything meaningful." 5 VRP at 79. Contrary to Bargas's assertions, the actuarial tests did not show that he is a low risk to reoffend. Bargas points out that "allthree experts who administered the Static 99-R [test] scored Mr. Bargas as a four, which correlates to a group in which 17 to 23 

### percent ofoffenders are expected to recidivate within fjyeyears." Br. of Appellant at 20 (emphasis added). ButDr. Richards testified that Bargas's score resulted in a ten year recidivism risk ofabout 33 percent and that 33 percent is an underestimate because the Static 99R measures recidivism by new convictions, not by offenses that go unreported
or undetected. Dr. Richards testified that his job is to assess the lifetime risk of an offense whether or not it is detected or charged. His testimony thus supported an 

### inference that Bargas's risk ofreoffense under the Static 99R test was notlow, but rather exceeded 33 percent.69844-3-1/10 Furthermore, while Dr. Richards testified that the Static 99R result anchored his 

### judgment, he considered other actuarial tools, clinical riskfactors, dynamic riskfactors, and lifestyle factors. At least one actuarial tool placed Bargas's risk ofreoffense at over 80 percent. The Sex Offender Risk Appraisal Guide, which measures the risk offuture 

### violent offenses, indicated that Bargas was almost certain to engage in violent recidivism. And on the PCL-R, which measures psychopathy, Bargas's score was near the maximum and indicated severe psychopathy. While Dr. Richards said the PCL-R is "not very predictive" of reoffense among sex offenders in general, it is more predictive for rapists. Dr. Richards added that Bargas's history as a mixed rapist and child molester, as well as his combination of psychopathy and deviant sexual arousal, put him at greater risk for reoffense. With respect to Bargas's prison behavior and sobriety, Dr. Richards pointed out that this was in a controlled environment, there had been no intervening treatment otherthan Alcoholics Anonymous (AA), and Bargas had refused substance abuse treatment in a clinician-guided program called ClinicallyAssisted SelfHelp (CASH). Last, Bargas contends his commitment violates due process because "the intensive substance abuse treatment he requires is unavailable in [his] facility." Br. of 

### Appellant at 23. This contention is not properly raised in an SVP commitment proceeding: The trier offact's role in an SVP commitment proceeding
... is to determine whether the defendant constitutes an SVP; it is not to evaluate the potential conditions ofconfinement..
. . The particular DSHS facility to which a defendant will be committed should have no bearing on whetherthat person falls within 

### RCW 71.090.020(1 )'s definition of an SVP. Furthermore, a person committed under RCW 71.09 may not challenge the actual conditions oftheir confinement, or the quality ofthe treatment at the DSHS facility until thev have been found to
-10-be an SVP and committed under the provisions of RCW 71.09. In re Detention of McClatchev. 133 Wn.2d 1, 5, 940 P.2d 646 (1997). In re Pet. ofTurav. 139 Wn.2d 379, 404, 986 P.2d 790 (1999) (second emphasis added); see also In re Pers. Restraint of Duncan, 167 Wn.2d 398, 409-410, 219 P.3d 666 (2009). Thus, this issue was outside the scope ofthe proceedings below and is not 

### properly before us on appeal.4
Affirmed.

WE CONCUR:

K^-^\y^



### 4We note that Bargas did not make a due process claim below and that he offers no basis for reviewing it for the first time on appeal. Inany case, the argument is not persuasive. While Dr. Richards believed AAwas not sufficienttreatment given the 

### severity ofBargas's substance abuse, he did not say that other available treatment, such as the CASH program that Bargas refused to participate in, was inadequate. Rather, he testified that substance abuse treatment is "a very large focus for offenders who have drug and alcohol problems" and that '[t]here are specified modules where 

### they address sobriety and addiction
.... and the basic principles of relapse prevention . . . ." 4 VRP at 48-49. Similarly, the trial court did not findthat available substance 

### abuse treatments were inadequate. The court simply found that the available treatment "does not focus on intensive substance abuse treatment, rather it is sex offender 

### treatment that will address deviancy, sexual offending and substance abuse." The court did not assess the adequacy ofthe treatment.

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