## 20IUUL28 /.h'9M6

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
In the Matter ofthe 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UNPUBLISHED OPINION FILED: July 28, 2014 Verellen, A.C.J. — Kevin Magera appeals from the trial court's order authorizing his commitment as a sexually violent predator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) pursuantto 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 unanimousjury verdict was violated. This argument is meritless because thejury was not required to unanimously agree as to the specific diagnoses that satisfied the statutory elements. Accordingly, we affirm.
FACTS In2000, Magera was convicted ofone count ofrape of a child inthe first degree and two counts of child molestation inthe 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 ofsexual violence;No. 70129-1-1/2 

### (2) Magera sufferedfrom a mental abnormality or personality disorder; and (3) the mental abnormalityor personality disorder made Magera likely to engage in predatory acts of sexual violence ifnot confined in a secure facility.1 At the commitmenttrial, 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, individuallyand together with his personality disorder, undermined his ability to control his behavior. Based on actuarial risk assessment
measures and static and dynamic riskfactors, Hupka concluded that Magera was likely to commit new predatory sexual offenses.

1 RCW 71.09.020(18); In re Pet, ofAudett. 158 Wn.2d 712, 727, 147 P.3d 982 (2006) (quoting In re Det. ofThorell. 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).No. 70129-1-1/3 A jury found that Magera was an SVP. As a result, the trial court committed Magera to a secure facility untilsuch 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 considerthe prosecutor's alleged improper conduct inthe context ofthe total argument, the issues in the case, the evidence 

### addressed inthe argument, and thejury instructions.3 To establish prejudice, Magera must show a substantial likelihood that the misconduct affected thejury 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 thejury to civillycommit him in orderto 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
2In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 717, 286 P.3d 673 (2012). 3State v. Anderson, 153 Wn. App. 417, 430, 220 P.3d 1273 (2009). 4 Glassman, 175 Wn.2d at 717. 5Id, 6Report ofProceedings (RP) (March 6 & 7, 2013) at 17.No. 70129-1-1/4
misconduct by arguing that civilcommitment "should be invoked to impose further 

### punishment."7 But here, the prosecutordid not make such an argument. Instead, the prosecutor made this statement inthe context of arguing that Magera failed to accept responsibility for his offenses, acknowledge his riskfactors, 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 willreoffend 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 thejury to improperly base its decision on passion and prejudice. In an effort to explain Magera's mental abnormality, the prosecutorjuxtaposed a normal reaction to a young child—caring and kindness—with Magera's reaction to a young child— 

### arousal.9 The comments bythe prosecutorwere either based on evidence in the

7In re Pet, of Gaff. 90 Wn. App. 834, 842, 954 P.2d 943 (1998). 8id, 

### 9The prosecutor argued, "Youimagine 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 protectthis little child, to nurture them, to shield them from bad things. You talk to a [kjindergartner about theirfavorite 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 aboutfun-fun and it being our little secret, because ifother people found out, theyNo. 70129-1-1/5 

### record and before thejury or they werefair inferencesfrom thatevidence.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 notapproach the egregious conduct of the prosecution in the
cases relied upon byMagera.12 Any arguably impropercomments were not so 

### egregious as to engender incurable prejudice. Magera'sclaims ofprosecutorial
misconduct fail. 

### Magera next contends he was denied the rightto a unanimousjuryverdict. Specifically, Magera argues that where the State presents evidence ofmultiple 

### diagnoses tosupport its claim thattherespondentsuffers from amental abnormality, 

### thejury is required tounanimously agree asto 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, thatis nota normal response." RP (Mar. 6 &7, 2013) at55-56. 10 Forexample, Dr. Hupka testified thatMagera's pedophilia "impairs his emotional capacity. . . . Thenormal response tochildren is one of 

### caretaking Sexual arousal and sexual desire and wanting torape children is not a normal partofemotional 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 theprosecutorargued extensivelythat thedefendantwasaffiliated 

### with aterroristorganization whose members were militant "butchers, thatkilled 

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

### (reversing convictions wherethe prosecutor "argued outsidethe evidence aboutwhat [the defendant's] thoughts were beforethecrime, invited thejurytorelivethehorror ofthemurders byfabricating a heart-wrenching story abouthowthemurders occurred, andinvited thejurytoimagine thecrimes happening tothemselves").No. 70129-1-1/6
The right to a unanimousjury verdict applies in SVP civil commitment 

### hearings.13 Moreover, the principles regarding the right to unanimousjury verdicts in 

### criminalproceedings 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 thejury 

### unanimously agree on one of the alternative means.15 Proof that a respondent suffers from a "mental abnormality" or proofthat a respondent suffers from a "personality disorder" constitute the two distinct means ofestablishing the mental illness element ofthe 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 whetherthe 

### 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 RCW71.09.060(1); Inre 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)). 16jd at 811; see RCW 71.09.020(16). 17 Inre Pet, ofPouncv. 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. 110Wn.2d 326, 752 P.2d 1338 (1988).18 InrePet.ofSease. 149 Wn. App. 66, 76-77, 201 P.3d 1078 (2009).No. 70129-1-1/7 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 onlythatthe State must prove 

### that Magera "suffers from a mental abnormality which causes serious difficulty in controlling his sexually violentbehavior."19 The jurywas not required to unanimously decide whether Magera had a mental abnormality as a result of his pedophilia alone or incombination 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 likelythat 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 ofthe same argument, Magera contends that the trial court erroneously rejected his proposedjury instructions. We review the adequacy ofthe 

### jury instructions de novo "in the context of the instructions as a whole."21 Magera's proposed instructions would have required thejury 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 ofestablishing that a person is an SVP [—mental abnormality or personality disorder—] may operate independently or may work in conjunction. Thus, because an SVP may sufferfrom both defects simultaneously, the mental illnesses are not repugnant to each other and may inhere inthe 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.

7No. 70129-1-1/8 declining to give the proposed instructions, the trial court concluded that it would 

### likely be a comment on the evidence to limitthe alleged mental abnormality to pedophilia alone and that such instructions were unnecessary because there were not multiplediagnoses that would make the patternjuryinstructions confusing. For these and the reasons discussed above, Magera's proposedjury instructions were properly refused. We affirmthe trial court's order authorizing Magera's commitment as an SVP.

WE CONCUR:

8