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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
In the Matter ofthe Detention of

DARIN DILLINGHAM, Appellant. No. 68147-8-1

UNPUBLISHED OPINION FILED: August 5, 2013 Verellen, J. — Darin Dillingham appeals from the order committing him to the 

### custody of the Department of Social and Health Services (DSHS) pursuantto a jury verdict determining that he was a sexually violent predator (SVP) as defined by RCW 71.09.060. He first contends the State failed to present sufficient evidence to establish that he had both a mental abnormality and a personality disorder, and that the 

### trial court therefore erred byfailing to give thejury a unanimity instruction or special verdict form to establish that they unanimously agreed as to which ofthese alternative


### means had been proved. He next argues that his diagnosed antisocial personality disorder does not meet the definition of a "personality disorder." Finally, he argues 

### there was insufficientevidence that he presently metthe definition of an SVP. Because 

### the State presented sufficient evidence that Dillingham presently had both a mental abnormality and a personality disorder, there was sufficient evidence to support theNo. 68147-8-1/2 

### jury's verdict onboth alternative means, and thetrial courtdid not errby notgiving a unanimity instruction or a special verdictform. Accordingly, we affirm.
FACTS 

### Dillingham was previously committed as an SVPin 2003 in SnohomishCounty Superior Court. His commitmentwas based in part on his 1985 conviction for indecent liberties against a child under 14, his 1989 convictions for three counts of indecent liberties and child molestation against two children, and his 1993 convictions for 

### attempted indecent liberties by forcible compulsion and attempted firstdegree child 

### molestation, both against a six-year-old girl.1 His commitmentwas also based onhis diagnoses ofparaphilia-pedophilia and antisocial personality disorder. Dillingham's SVP status was reviewed annually by the Department of Social and 

### Health Services (DSHS), as required by RCW 71.09.070. Dillingham was annually informed of his right to petition the superior courtfor release. The annual evaluation reports were submitted to the court. Each year, the court conducted a show cause hearing, in which Dillingham and the State appeared through counsel, to determine whether Dillingham was entitled to a trial on whether he should be unconditionally released to a less-restrictive alternative. 

### 1Between 1985 and 1993, Dillinghamwasconvicted for (1) indecentliberties against a 22-year-old woman; (2) indecent liberties against a nine-year-old girl; (3) second degree rape against an adult woman incapable of consent; (4) communication with a minorfor immoral purposes against a four-year-old girl; (5) indecent liberties against a four-year-old girl; (6) three counts of indecent liberties against a child and child molestation against an approximately four to six-year-old girl and an approximately six to eight-year-old boy; (7) communication with a minor for immoral purposes against a 14-year-old girl; and (8) attempted indecent liberties by forcible compulsion and attempted first degree child molestation against a six-year-old girl.No. 68147-8-1/3
In2010, Dillingham petitioned the superior courtfor release. Based on the 

### expert opinion ofDr. Louis Rosell, the court concluded that Dillingham met his burden of 

### producing prima facie evidence that his condition had changed to the extent that he no 

### longer met the definition of a sexuallyviolent predator. Dillingham was granted a new trial pursuant to RCW 71.09.090 to determine whether he continued to meet the statutory definition of an SVP. 

### Attrial, psychologistJohn Hupka, Ph.D.,2 testified about hisinterview of 

### Dillingham, his review ofDillingham's records,3 and tests headministered toDillingham. He diagnosed Dillingham using the Diagnostic and StatisticalManual (DSM-IV-TR) definitions of mental disorders, the reference generally accepted in the discipline of psychology. First, Dr. Hupka diagnosed Dillingham with pedophilia, which he defined as 

### "sexual attraction tochildren."4 He explained thatDillingham metall ofthe DSM-IV-TR criteria for pedophilia, including the facts that his sexual attraction to children has continued into his young adulthood. It's notjust a passing fantasy with him. It's notjust something that he engaged in once when he was drunk and never did itagain. This is an ongoing pattern.


### 2Afterearning his Ph.D. in 1990, Dr. Hupka worked forthe California Department ofCorrections conducting psychological evaluations and assessments ofpotential parolees. Dr. Hupka estimated he had conducted approximately 800 evaluations or assessments of sex offenders since 1996, 700 or more ofwhich were to determine whether they met statutory criteria for commitment as an SVP. 

### 3Dr. Hupka described Dillingham's record as "voluminous," consisting of "thousands of pages ofdocuments" including police reports of his prior offenses, probation officers' reports, prior mental health records and sex offender treatment records. Report of Proceedings (RP) (Dec. 1, 2011) at 236. 4 Id. at 265.No. 68147-8-1/4
Mr. Dillingham does fantasize about children, he does masturbate to those fantasies. More importantly in his case, he acts out repeatedly with sexual molestation of children, despite arrest and conviction and 

### incarceration again and again.[5] Second, Dr. Hupka diagnosed Dillingham with antisocial personality disorder. He 

### testified that (1) Dillingham failed to conform to societal norms, as evidenced by his behavior and his history ofarrests and parole violations; (2) Dillingham had "an element 

### ofdeceitfulness about him," as evidenced by his refusal to acknowledge ordiscuss the details of his offenses, and claiming not to remember; (3) Dillingham was impulsive, "particularly in the realm of his sexual behavior. He has sex with twoyear olds, four year olds, seven year olds, 60 year olds. He's pretty indiscriminate about if he has an 

### impulse, he'll gofor it"6; (4) Dillingham "[cjlearly
... hasdisregard forthesafety and rights of his victims. He gives little thought to how the rape of children would affect 

### them"7; (5) Dillingham has "little remorse when itcomes tohis offenses," has "no conception of how his offense behaviors have affected his victims," and is "not 

### particularly motivated orinclined to beinterested in that"8; and(6) Dillinghamfailed to maintain consistent behavior or honorfinancial obligations, noting that he had little 

### history of work and that his mothertypically supported himwhen inthe community. Dr. Hupka concluded Dillinghammetthe DSM-IV-TR definition because he "certainly 

### has more thanthree" ofthecriteria, and is over 18 years old.9 Dr. Hupka clarified that,

5Id at 266, 268. 

### 6]d,at 280. 7JcL 8Id, at 281. 9 Id.No. 68147-8-1/5 for Dillingham, "both his pedophilia and his antisocial personality disorder [are] chronic, 

### lifelong conditions."10 Dr. Hupka testified that Dillingham's antisocial traits, such as selfishness and disregard of others, manifested inthe offenses underlying his 1989 indecent liberties and child molestation convictions: He said that he knew that itwasn't okay to molest the children, but he said that itwas a way ofgetting his sexual needs met and he was pretty muchjustthinking about himself. Wasn't thinking that itwas hurting them.1111 Dr. Hupka also testified that Dillingham did not cooperate with supervision, explaining that he "didn't register [as a sex offender] like he was supposed to" and 

### "absconded supervision."12 Dr. Hupka explained thiswastypical ofsomeonewho 

### "lacks responsibility fortheirbehavior."13 Moreover, Dr. Hupkatestified thatDillingham's test results were also consistent with his antisocial personality disorder diagnosis. 

### Dr. Hupka described Dillingham's test result as a "spike 4," which indicated specific

concerns: 

### This is . . . typical with people who are selfish, don't have regard for other people's feelings. They tend to live by their own rules. They don't learn from their mistakes.
. ..
Individuals who are antisocial and have a spike 4 profile tend to not 

### be good candidates fortreatment because—and since they live by their 

### own rules they tend not to cooperate with supervision. The general rule, if


### 10jd, at 276. 11 Id, at 251. 12 IdL at 257. 13 Id.No. 68147-8-1/6
released inthe community from prison, they typically abscond [from 

### parole] orreoffend sooner orlaterand getback in custody.f14] Third, Dr. Hupka diagnosed Dilligham with substance abuse. He testified that Dillingham's use ofdrugs and/or alcohol was closely linked to his offenses. Dillingham denied having had any contact with most ofthe victims, but admitted to Dr. Hupka that 

### he "was always drunk orhigh on every one ofmy offenses."15 Special Commitment Center (SCC) psychologist Joe Mitrovich, Ph.D., testified about his work with Dillingham. Dr. Mitrovich testified that he was concerned that Dillingham's antisocial traits interfered with his ability to engage inthe therapeutic process and increased Dillingham's risk ofreoffending: [Dillingham] continued to . .. manifest some very antisocial thinking, [including] referring to the residential staffas police, [displaying] victim stance type mentality, which is one ofthose thinking barriers
. . . indicative of criminal type thinking, you know, Iwasn't wrong in the 

### situation, itwas the otherperson typethinking.[16] He testified that Dillingham showed a "general lack oftransparency" about his relationship with a woman while in DSHS custody, especially since the woman had 

### children.17 This wasconcerning, becauseit showed a "lackofinsightinto
... apretty significantriskfactor" for reoffending ifhe was released.18 Dr. Mitrovich explained that Dillingham's unwillingness to participate fully in counseling increased the likelihood he would reoffend:

14 Id at 240. 15 Id at 244. 

### 16RP(Nov. 30, 2011) at 165. 17 id at 173. 18 Id. at 174.No. 68147-8-1/7 [H]aving an understanding ofthe treatment concept such as risk factors, and in particularwhat's referred to as dynamic risk factors, which are a set of things that have been identified in the research in this area, like
.. . sexual preoccupation, sexual coping, deviant sexual interest, sexual entitlement, child molester attitudes
.... [T]he essence of treatment is having an understanding ofthose and being able to recognize how they have manifested in your life, how they contributed to you engaging inthe act of offending, to understand the distortions that are related to those risk factors, and then
. . .just having the ability to have insight into those, recognize them when they start coming up, and having the ability to effectively intervene once they're recognized. And so ifsomeone is developing a relationship like itseemed he was and isn't talking about it, isn't recognizing how itcould be a riskfactor for him, isn't doing those things, itseems like, like Isaid, there is a lack of 

### insight or justignoring ofwhatcould be a riskfactor.'191 Dr. Mitrovich explained that Dillingham's refusal to cooperate with supervision "is a risk factor that's been identified in the literature as having a strong correlation with 

### recidivism."20 When asked whatDillingham would need towork onin treatment, Dr. Mitrovich identified the following: You know, there is a set of risk factors for him, namely being negative emotionality, hostility, the lack of cooperation with supervision, the lack of concern for others.
... the lack oftransparency we've talked 

### about, those are all areas that need to be improved for Mr. Dillingham.1211 Dillingham testified about antisocial personality disorder. The prosecutor asked, 

### "Do you believe thatyou sufferfrom antisocial personality disorder?"22 Dillingham answered, "I can't say that Ido or Idon't. Ido have Iguess you can say some traits of 

### antisocial personality disorder."23 Theprosecutorthen asked, "Butyou agreeyou've 19 id at 174-75. 20 \± at 176. 

### 21 id at 177. 22 id at 104. 23 Id.No. 68147-8-1/8 

### beendiagnosed with antisocial personality disorderthroughoutyour life?"24 Dillingham answered, "I agree thatIhave been, yes, bypsychologists."25 Dillingham also testified that he had substance abuse issues, and described the relationship between his substance abuse and his acts of sexual violence. He testified 

### that his substance abuse has "gradually gotten worse and worsethroughout my life."26 Dillingham revealed that drinking and using drugs was part of a pattern when he 

### repeatedly committed indecent liberties and child molestation againsttwo young children left in his care many times over an extended period. In fact, he testified that he 

### was under the influence ofdrugs oralcohol "[e]verytime Ioffended."27 Hetestified that in 1985, he committed a sexual assault against his brother's wife after "drinking and 

### doing drugs with myfriends."28 He also acknowledged that afterdrinking with friends, he committed acts against a 16-year-old girl that led to him being charged withrape. Before closing arguments, defense counsel proposed a special verdict form requiring thejury to answer whether they specifically found that the State proved a mental abnormality and whether they specifically found the State proved a personality disorder. The State opposed the court providing a special verdict form. Following trial, thejury determined that Dillingham is a sexually violent predator, pursuant to RCW 71.09.060. The trial court ordered him committed to the custody of DSHS.

24 Id, 25 Id, 26 id at 110. 27 i4 at 148. 28 Id. at 114.

8No. 68147-8-1/9 Dillingham appeals. ANALYSIS Dillingham raises three related arguments in this appeal. First, he contends there was insufficient evidence that he had both a mental abnormality and a personality disorder and no special verdict was given requiringjuror unanimity as to which ofthese alternative means thejury found established. Second, he argues there was evidence of multiple distinguishable conditions that could establish a mental abnormality and he was entitled to a jury instruction requiring unanimity as to which thejury found proved. Third, he asserts there was insufficient evidence that he continued to have a mental illness. None of his arguments establish that he is entitled to appellate relief. Alternative Means While SVP involuntary commitment proceedings are civil in nature, a defendant in such proceedings is entitled to due process protections that include a unanimousjury 

### verdict.29 Chapter71.09RCW allows indefinite commitment as an SVP where thejury finds beyond a reasonable doubt that the person has been convicted of a crime of sexual violence and "suffers from a mental abnormality or personality disorder which makes the person likely to engage in predatory acts of sexual violence ifnot confined in 

### a securefacility."30 "Mental abnormality" isdefined as: [A] congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to the commission of criminal



### 29 RCW 71.09.060(1); see also In re Detention ofHalqren. 156Wn.2d 795, 807- 08, 132 P.3d 714 (2006); In re Pers. Restraint ofYoung, 122 Wn.2d 1, 48, 857 P.2d 989 (1993).

### 30 RCW 71.09.020(18).No. 68147-8-1/10
sexual acts in a degree constituting such person a menace to the health 

### andsafety ofothers.'311 "Personality disorder" is defined as: [A]nenduring pattern of inner experience and behavior that deviates markedly from the expectations ofthe individual's culture, is pervasive and inflexible, has onset in adolescence or early adulthood, is stable overtime 

### and leads to distress orimpairment.'321 These definitions were provided inthe court'sjury instructions. Dillingham is correct that a personality disorder and a mental abnormality are two alternative means of establishing the mental illness element of an SVP commitment 

### determination.33 However, thesealternative means "may operate independently ormay work in conjunction."34 And "because anSVP may sufferfrom both defects simultaneously, the mental illnesses are not repugnant to each other and may inhere in 

### the sametransaction."35 Accordingly, where there issubstantial evidence that a defendant has both a mental abnormality and a personality disorder, the trial court does not violate the constitutional right to unanimity by failing to instruct thejury that itmust 

### reach unanimous agreement as towhich condition itfound satisfied thatelement.36 Put differently: Where an element may be established by alternative means, a particularized expression of unanimity as to the means relied upon to


### 31 RCW 71.09.020(8). 32 RCW 71.09.020(9). 33 See In re Detention ofHalqren, 156Wn.2d 795, 811, 132 P.3d 714 (2006); In re Detention of Pouncv, 144 Wn. App. 609, 618, 184 P.3d 651 (2008). 34 Halqren, 156 Wn.2d at 810. 

### 35 id 36 Id. at 811-12.

10No. 68147-8-1/11
reach the verdict is not required so long as there is substantial evidence to 

## supportaverdicton each alternative.'3^
The substantial evidence test is satisfied if this court is convinced that "a rational trier of fact could have found each means of committing the crime proved beyond a reasonable 

### doubt."38 In reviewing a record for substantial evidence, this courtwill not second guess thecredibility determinations ofthejury.39 

### This court's opinion in In reDetention ofTiceson is pertinenttoourreview.40 Ticeson conceded the State presented sufficient evidence to prove that he suffered 

### from a mental abnormality and a personality disorder, but argued that the State failed to present evidence sufficientto prove this personality disorder made him likelyto 

### reoffend.41 This court concluded that the State's expert witness's testimony that "Ticeson's personality disorder causes him serious difficulty controlling his sexually violent behavior" was "sufficientto allow a rationaljurorto find Ticeson's personality 

## disordermakes him likelyto reoffend," and thus adequately supported the verdict.42 Like Ticeson, Dillingham does not contend there was insufficientevidence that he has a mental abnormality that predisposes him to acts ofsexual violence. Dr.



### 37 In re Detention of Ticeson, 159 Wn. App. 374, 388-89, 246 P.3d 550 (2011) (citing Halqren, 156 Wn.2d at 809). 

### 38 State v. Kitchen, 110 Wn.2d 403, 410-11, 756 P.2d 105 (1988) (emphasis omitted). 39 State v. Jeannotte, 133 Wn.2d 847, 853-54, 947 P.2d 1192 (1997) (quoting State v. Snider, 70 Wn.2d 326, 327, 422 P.2d 816 (1967)). 

### 40 159Wn. App. 374, 246 P.3d 550 (2011). 41 id at 388. 42 Id. at 388-89.

11No. 68147-8-1/12 

### Hupka's testimony amply supports the conclusion that Dillingham's pedophilia predisposed him to commit acts of sexual violence. As was true inTiceson. Dillingham's argument that there was insufficient 

### evidence that his personality disorder made him more likely to commit acts ofsexual violence fails. Likethe State's expert witness inTiceson. Dr. Hupka testified that Dillingham's antisocial personality disorder increased the riskthat he would commit

more acts of sexual violence. He testified that the combination ofthese conditions presented a high risk: Ido believe he's an antisocial personality disordered man, but that's not the whole story. He's also a sexually deviant man .... Ithink the particular problem with him is that you have the combination of sexual deviance, that is, the attraction to children and the desire for coercive sex that he's shown. So he has this sexual deviance, and because of the antisocial personality disorder, he's not the least bitmotivated to change that sexual deviance.
.. . That's a formidable combination.'431 Dr. Hupka also explained that Dillingham's substance abuse was another risk 

### factor that raised the likelihoodthat he would reoffend. The evidence at trial amply demonstrated that substance abuse was nearly always a feature in Dillingham's attacks, that his antisocial traits, such as selfishness, disregard for others, impulsiveness and lack of remorse were integral to his commission of sexually violent acts. The trial record contains substantial evidence from which thejury could have found that Dillingham's antisocial personality disorder or substance abuse made him
more likely to engage in predatory acts of sexual violence ifnot confined. There is no

43 RP(Dec. 1,2011) at 284-85.

12No. 68147-8-1/13 

### requirementthatthe State prove thatthe antisocial personality disorder or substance 

### abuse, standing alone, makes Dillingham likelytoreoffend.44 Dillingham provides no authority to support his argument that all of his diagnoses must be considered without 

### regard to one another, as ifin a vacuum. Such a conclusion would be contrary to our 

### Supreme Court's recognition that the various mental abnormalities and personality disorders in a givencase "may work inconjunction" to make one more likely to reoffend.45 

### To the extent Dillingham argues that the State's closing argument deprived him 

### of a unanimous verdict, his argument is not persuasive. The State did not expressly or impliedly argue that each ofthe two mental abnormalities (pedophilia and substance 

### abuse) or the personality disorder (antisocial personality disorder), standing alone, established his status as an SVP. In addition, the jury was instructed that "the lawyers' remarks, statements, and arguments are not evidence. You should disregard any remark, statement, or argumentthat is not supported bythe evidence orthe law as I 

### haveexplained ittoyou.46 Juries are presumed tofollow the court's instructions.47 Dillingham's argumentthatthe antisocial personality disorder diagnosis did not meet the definition of "personality disorder" because itwas not "enduring, pervasive, 

### inflexible and stableovertime" isnotpersuasive.48 Dr. Hupka testified thatDillingham's

44 See Halqren, 156 Wn.2d at 807-11. 45 Id at 810. 

### 46 Clerk's Papers at 7. 

### 47 Statev. Foster, 135Wn.2d 441, 472, 957P.2d 712(1998). 48 Appellant's Br. at 19.

13No. 68147-8-1/14 

### antisocial personality disorderwas a "chronic orlifelong condition! ]."49 This evidence directlysupports a reasonable conclusion that Dillingham's antisocial personality disorder was stable and enduring. There was sufficient evidence presented at trial to supportthejury's verdict under both alternative means in the SVP statute. Means within a Means 

### Dillingham contends he was entitled to a jury instruction requiring juror unanimity
as to whether it found that the mental abnormality of substance abuse or pedophilia was 

### proved. This issue is controlled by In reDetention ofSease.50 In thatcase, theState presented evidence that Sease had both borderline personality disorder and antisocial 

### personality disorder.51 Sease argueditwas errorto notprovide a unanimity instruction since the State offered multiple diagnoses. Division Two of this court rejected the argument, concluding that 

### the jury here need only have unanimously found that the State proved that Sease suffered from a personality disorderthat made itmore likely that he 

### wouldengage inacts of sexual violence if not confined to a secure facility. The juryneed not have unanimously decided whether Sease suffered from borderline personality disorder or antisocial personality disorder. Therefore, the trial court did not err in failing to give a unanimity instruction.'521


### 49RP(Dec. 1,2011) at 276. 50 149Wn. App. 66, 201 P.3d 1078 (2009). 51 id at 71-72. 52 \± at 78-79. "[W]here a disputed instruction involves alternatives that may be characterized as a 'means within [a] means,' the constitutional right to a unanimousjury 

### verdict is notimplicated and the alternativemeans doctrine does notapply." id, at 77 

### (alteration in original) (internal quotation marks omitted) (quoting State v. Smith, 159 Wn.2d 778, 783, 154 P.3d 873 (2007)).

14No. 68147-8-1/15
We disagree with Dillingham's argument that Sease was wrongly decided. We agree with the analysis in Sease, and conclude that the State was not required to prove which mental abnormality, substance abuse or pedophilia, itdetermined satisfied this element. No unanimity instruction was required. Continuing Mental Illness Dillingham asserts there was insufficient evidence that he continued to have a mental illness. We conclude that, to the contrary, the evidence at trial was sufficientto 

### supportthejury's verdict. In particular, Dr. Hupka described the pedophilia and 

### antisocial personality disorders as chronic, and Dillingham himself testified that his substance abuse had worsened overtime. Dr. Hupka also explained that any remission 

## in Dillingham's overtsymptoms were in large partattributableto his confinement.53
There was no error. Affirmed.

WE CONCUR:



### 53 "Often antisocial fellows, when they're in prison, they do quite a bit better than 

### when they're in the community because they have an externalstructure." RP(Dec. 1, 2011)at 282. "I would say it's moretypical[ ] that individuals do notreoffend in custody. Two reasons: One, there is no children there. He doesn't have the opportunity. And 

### two, he has the structure of the institution Guards, staff members around, barbed 

### wire, can't go anywhere. Thatkind ofcontainment, it's an externalcontainmentthat supplies a structure that he lacks within." ]d at 292.

15