20IUUL28 /.h'9M6

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION ONE

In the Matter of the Detention of

KEVIN MAGERA

No. 70129-1-1

UNPUBLISHED OPINION

FILED: July 28, 2014

Verellen, A.C.J. — Kevin Magera appeals from the trial court's order

authorizing his commitment as a sexually violent predator (SVP) pursuant to

chapter 71.09 RCW. He first contends that the State committed misconduct in its

closing argument. His arguments are unavailing because the State's closing

arguments were not improper and were supported by the record. Magera next

contends that his right to a unanimous jury verdict was violated. This argument is

meritless because the jury was not required to unanimously agree as to the specific

diagnoses that satisfied the statutory elements. Accordingly, we affirm.

FACTS

In 2000, Magera was convicted of one count of rape of a child in the first

degree and two counts of child molestation in the first degree. The State filed an

SVP petition shortly before Magera's scheduled release. To establish that Magera

was an SVP, the State had to prove the following elements beyond a reasonable

doubt: (1) Magera had been convicted of or charged with a crime of sexual violence;
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(2) Magera suffered from a mental abnormality or personality disorder; and (3) the

mental abnormalityor personality disorder made Magera likely to engage in

predatory acts of sexual violence if not confined in a secure facility.1

At the commitment trial, Dr. John Hupka, a licensed psychologist, testified on

behalf of the State. He had reviewed Magera's treatment records, psychological and

psychiatric evaluations, police reports, victim statements, and numerous other

records. Hupka also interviewed Magera twice. Based on his evaluations, Dr. Hupka

diagnosed Magera with pedophilia, a mental abnormality characterized by intense

recurrent sexual fantasies and urges or sexual behaviors involving prepubescent

children. Hupka also diagnosed Magera with a personality disorder of a mixed type,

having both antisocial and narcissistic characteristics, that complicates his

pedophilia. But Hupka testified that Magera's personality disorder alone did not

predispose him to commit criminal sexual acts. Instead, Hupka concluded that

Magera's pedophilia, individually and together with his personality disorder,

undermined his ability to control his behavior. Based on actuarial risk assessment

measures and static and dynamic risk factors, Hupka concluded that Magera was

likely to commit new predatory sexual offenses.

1 RCW 71.09.020(18); In re Pet, of Audett. 158 Wn.2d 712, 727, 147 P.3d 982

(2006) (quoting In re Det. of Thorell. 149 Wn.2d 724, 758-59, 72 P.3d 708 (2003)). A

"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).
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A jury found that Magera was an SVP. As a result, the trial court committed

Magera to a secure facility until such time as his mental abnormality has been

modified to the point where he would be safe at large. Magera appeals.

DISCUSSION

Magera first argues that the prosecutor committed two instances of

misconduct during closing argument that require reversal of his commitment order.

We disagree.

To prevail on this claim, Magera must show that the prosecutor's conduct was

both improper and prejudicial.2 We consider the prosecutor's alleged improper

conduct in the context of the total argument, the issues in the case, the evidence

addressed in the argument, and the jury instructions.3 To establish prejudice,

Magera must show a substantial likelihood that the misconduct affected the jury

verdict.4 Because Magera failed to object, we will not review the alleged error unless

the misconduct was so flagrant and ill intentioned that an instruction would not have

cured the prejudice.5

Magera argues that the prosecutor improperly urged the jury to civilly commit

him in order to hold him accountable for his earlier crimes by stating, "We need to

see Mr. Magera taking accountability for his actions. Pleading guilty and avoiding

trial is not taking accountability."6 Magera is correct that a prosecutor commits

2 In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 717, 286 P.3d 673 (2012).

3 State v. Anderson, 153 Wn. App. 417, 430, 220 P.3d 1273 (2009).

4 Glassman, 175 Wn.2d at 717.

5Id,

6 Report of Proceedings (RP) (March 6 & 7, 2013) at 17.
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misconduct by arguing that civil commitment "should be invoked to impose further

punishment."7 But here, the prosecutor did not make such an argument. Instead, the

prosecutor made this statement in the context of arguing that Magera failed to accept

responsibility for his offenses, acknowledge his risk factors, and truly incorporate the

information learned in treatment to reduce his risk of recidivism. Taken in context,

the prosecutor's argument suggests that Magera lacks insight into his offending

behavior and that, as a result, there is a strong likelihood that he will reoffend if

released. Such an argument is supported by the evidence presented at trial. "[I]n a

sexual predator commitment proceeding, the prosecutor is entitled to argue that a

respondent's future dangerousness prevents placement in a less restrictive setting

than secure confinement."8 The prosecutor's argument was not improper.

Magera also argues that the prosecutor's rebuttal argument caused the jury to

improperly base its decision on passion and prejudice. In an effort to explain

Magera's mental abnormality, the prosecutor juxtaposed a normal reaction to a

young child—caring and kindness—with Magera's reaction to a young child—

arousal.9 The comments by the prosecutor were either based on evidence in the

7 In re Pet, of Gaff. 90 Wn. App. 834, 842, 954 P.2d 943 (1998).

8id,

9The prosecutor argued, "You imagine a [kjindergartner, a five or six-year-old.

You see a little person who's innocent, bushy tailed, wide eyed, dwarfed by the fifth

and sixth graders that go to the same elementary school. You feel the need, the

desire, to protect this little child, to nurture them, to shield them from bad things. You

talk to a [kjindergartner about their favorite Disney princess or their latest Lego

creation. That's what you do. Mr. Magera sees a [kjindergartner and sees a potential

sexual partner. Mr. Magera sees a [kjindergartner and feels sexual urges. He gets

aroused. He gets and maintains an erection. Mr. Magera talks to a [kjindergartner

about fun-fun and it being our little secret, because ifother people found out, they
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record and before the jury or they were fair inferences from that evidence.10 In

closing argument, the prosecutor has wide latitude in making arguments and drawing

reasonable inferences from the evidence.11 The prosecutor's argument was not

improper. Furthermore, the type of rhetoric used in the prosecutor's closing

argument here did not approach the egregious conduct of the prosecution in the

cases relied upon by Magera.12 Any arguably improper comments were not so

egregious as to engender incurable prejudice. Magera's claims of prosecutorial

misconduct fail.

Magera next contends he was denied the right to a unanimous jury verdict.

Specifically, Magera argues that where the State presents evidence of multiple

diagnoses to support its claim thatthe respondent suffers from a mental abnormality,

the jury is required to unanimously agree as to which specific mental abnormality

makes the respondent an SVP. We disagree.

wouldn't understand. Five and six-year-olds gave him an erection. Ladies and

gentlemen, that is not a normal response." RP (Mar. 6 &7, 2013) at 55-56.

10 For example, Dr. Hupka testified that Magera's pedophilia "impairs his

emotional capacity. . . . The normal response to children is one of

caretaking Sexual arousal and sexual desire and wanting to rape children is not a

normal part ofemotional experience." RP (Mar. 1 &4, 2013) at 137-38.

11 State v. Fisher. 165 Wn.2d 727, 747, 202 P.3d 937 (2009).

12 See State v. Belqarde. 110 Wn.2d 504, 507, 755 P.2d 174 (1988) (reversing

convictions where the prosecutor argued extensively that the defendant was affiliated

with a terrorist organization whose members were militant "butchers, that killed

indiscriminately"); State v. Pierce, 169 Wn. App. 533, 556, 280 P.3d 1158 (2012)

(reversing convictions where the prosecutor "argued outside the evidence about what

[the defendant's] thoughts were before the crime, invited the jury to relive the horror

ofthe murders by fabricating a heart-wrenching story about how the murders

occurred, and invited the jury to imagine the crimes happening to themselves").
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The right to a unanimous jury verdict applies in SVP civil commitment

hearings.13 Moreover, the principles regarding the right to unanimous jury verdicts in

criminal proceedings apply equally in SVP civil commitment hearings.14 One such

principle is the rule that where there is more than one statutory alternative means of

committing an offense, the alternative means test generally requires that the jury

unanimously agree on one of the alternative means.15 Proof that a respondent

suffers from a "mental abnormality" or proof that a respondent suffers from a

"personality disorder" constitute the two distinct means of establishing the mental

illness element of the SVP determination.16 But "the alternative means analysis does

not apply to circumstances involving 'means within a means.'"17 "[Tjhe actual

diagnosed mental abnormalities or personality disorders are not the alternative

means which the State must prove beyond a reasonable doubt; it is whether the

person suffersfrom a mental abnormality or a personality disorder."18

Here, the State presented evidence that Magera suffered from both pedophilia

and a personality disorder not otherwise specified, which complicated his pedophilia.

But the State clarified that Magera's personality disorder alone did not satisfy the

13 RCW 71.09.060(1); In re Pet, of Keenev, 141 Wn. App. 318, 327, 169 P.3d

852 (2007).

14lnreDet.ofHalqren, 156 Wn.2d 795, 809-11, 132 P.3d 714 (2006).

15 ]d, at 809 (citing State v. Arndt, 87 Wn.2d 374, 377, 553 P.2d 1328 (1976)).

16 jd at 811; see RCW 71.09.020(16).

17 In re Pet, of Pouncv. 144 Wn. App. 609, 618, 184 P.3d 651 (2008) (quoting

State v. Al-Hamdani. 109 Wn. App. 599, 604, 36 P.3d 1103 (2001)), afTd, 168 Wn.2d

382 (2010); see In re the Pers. Restraint of Jeffries. 110 Wn.2d 326, 752 P.2d 1338

(1988).

18 InrePet.ofSease. 149 Wn. App. 66, 76-77, 201 P.3d 1078 (2009).
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statutory requirements for finding that Magera was an SVP. Indeed, because

Magera was not alleged to have a qualifying personality disorder, the jury instructions

eliminated this option. Instead, the jury was instructed only that the State must prove

that Magera "suffers from a mental abnormality which causes serious difficulty in

controlling his sexually violent behavior."19 The jury was not required to unanimously

decide whether Magera had a mental abnormality as a result of his pedophilia alone

or in combination with his personality disorder not otherwise specified, which

complicated his pedophilia.20 Instead, the jury need only have unanimously found

that the State proved that Magera suffered from a mental abnormality that made it

more likely that he would engage in acts of sexual violence if not confined to a secure

facility. It did so. Accordingly, no unanimity instruction was required and Magera's

claim is unavailing.

As part of the same argument, Magera contends that the trial court

erroneously rejected his proposed jury instructions. We review the adequacy of the

jury instructions de novo "in the context of the instructions as a whole."21 Magera's

proposed instructions would have required the jury to reach unanimous agreement as

to whether Magera suffered from "a mental abnormality, to wit: pedophilia."22 In

19 Clerk's Papers at 14.

20 "[Tjhese two means of establishing that a person is an SVP [—mental

abnormality or personality disorder—] may operate independently or may work in

conjunction. Thus, 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." Halqren. 156 Wn.2d at 810.

21 State v. Pirtle. 127 Wn.2d 628, 656, 904 P.2d 425 (1995).

22 Clerk's Papers at 568.

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declining to give the proposed instructions, the trial court concluded that it would

likely be a comment on the evidence to limit the alleged mental abnormality to

pedophilia alone and that such instructions were unnecessary because there were

not multiple diagnoses that would make the pattern jury instructions confusing. For

these and the reasons discussed above, Magera's proposed jury instructions were

properly refused.

We affirm the trial court's order authorizing Magera's commitment as an SVP.

WE CONCUR:

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