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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION ONE

In the Matter of the 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UNPUBLISHED OPINION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) pursuant to 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 by failing to give the jury a unanimity instruction or special

verdict form to establish that they unanimously agreed as to which of these 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 insufficient evidence that he presently met the 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 the
No. 68147-8-1/2

jury's verdict on both alternative means, and the trial courtdid not err by not giving a

unanimity instruction or a special verdict form. Accordingly, we affirm.

FACTS

Dillingham was previously committed as an SVP in 2003 in Snohomish County

Superior Court. His commitment was 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 first degree child

molestation, both against a six-year-old girl.1 His commitment was also based on his

diagnoses of paraphilia-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 court for 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, Dillingham was convicted for (1) indecent liberties

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 minor for 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

In 2010, Dillingham petitioned the superior court for release. Based on the

expert opinion of Dr. 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 sexually violent 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.

At trial, psychologist John Hupka, Ph.D.,2 testified about hisinterview of

Dillingham, his review of Dillingham's records,3 and tests he administered to Dillingham.

He diagnosed Dillingham using the Diagnostic and Statistical Manual (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 to children."4 He explained that Dillingham met all ofthe DSM-IV-TR

criteria for pedophilia, including the facts that

his sexual attraction to children has continued into his young adulthood.

It's not just a passing fantasy with him. It's not just something that he

engaged in once when he was drunk and never did it again. This is an

ongoing pattern.

2After earning his Ph.D. in 1990, Dr. Hupka worked for the California Department

of Corrections conducting psychological evaluations and assessments of potential

parolees. Dr. Hupka estimated he had conducted approximately 800 evaluations or

assessments of sex offenders since 1996, 700 or more of which 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 of documents" 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 of arrests and parole violations; (2) Dillingham had "an element

of deceitfulness about him," as evidenced by his refusal to acknowledge or discuss 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 two year 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 ... has disregard for the safety 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 it comes to his offenses," has "no

conception of how his offense behaviors have affected his victims," and is "not

particularly motivated or inclined to be interested in that"8; and (6) Dillingham failed to

maintain consistent behavior or honor financial obligations, noting that he had little

history of work and that his mother typically supported him when in the community.

Dr. Hupka concluded Dillingham met the DSM-IV-TR definition because he "certainly

has more than three" ofthe criteria, and is over 18 years old.9 Dr. Hupka clarified that,

5 Id 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 in the offenses underlying his 1989 indecent liberties

and child molestation convictions:

He said that he knew that it wasn't okay to molest the children, but

he said that it was a way of getting his sexual needs met and he was

pretty much just thinking about himself. Wasn't thinking that it was 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 thiswas typical ofsomeone who

"lacks responsibility for their behavior."13 Moreover, Dr. Hupka testified that Dillingham'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 for treatment because—and since they live by their

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

10 jd, at 276.

11 Id, at 251.

12 IdL at 257.

13 Id.
No. 68147-8-1/6

released in the community from prison, they typically abscond [from

parole] or reoffend sooner or later and get back in custody.f14]

Third, Dr. Hupka diagnosed Dilligham with substance abuse. He testified that

Dillingham's use of drugs and/or alcohol was closely linked to his offenses. Dillingham

denied having had any contact with most of the victims, but admitted to Dr. Hupka that

he "was always drunk or high on every one of my 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 in the therapeutic

process and increased Dillingham's risk of reoffending:

[Dillingham] continued to . .. manifest some very antisocial

thinking, [including] referring to the residential staff as police, [displaying]

victim stance type mentality, which is one of those thinking barriers . . .

indicative of criminal type thinking, you know, I wasn't wrong in the

situation, it was the other person type thinking.[16]

He testified that Dillingham showed a "general lack of transparency" about his

relationship with a woman while in DSHS custody, especially since the woman had

children.17 This was concerning, because it showed a "lack ofinsight into ... a pretty

significant risk factor" for reoffending if he 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 of the treatment concept such as risk factors,

and in particular what'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 of those and being able to recognize how they

have manifested in your life, how they contributed to you engaging in the

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 it could be a risk factor

for him, isn't doing those things, itseems like, like Isaid, there is a lack of

insight or just ignoring ofwhat could be a risk factor.'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 what Dillingham would need to work on in 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 of transparency 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 that you suffer from antisocial personality disorder?"22 Dillingham

answered, "I can't say that I do or I don't. I do have I guess you can say some traits of

antisocial personality disorder."23 The prosecutor then asked, "But you agree you've

19 id at 174-75.

20 \± at 176.

21 id at 177.

22 id at 104.

23 Id.
No. 68147-8-1/8

been diagnosed with antisocial personality disorder throughout your life?"24 Dillingham

answered, "I agree that I have been, yes, by psychologists."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 worse throughout my life."26

Dillingham revealed that drinking and using drugs was part of a pattern when he

repeatedly committed indecent liberties and child molestation against two young

children left in his care many times over an extended period. In fact, he testified that he

was under the influence ofdrugs or alcohol "[e]very time Ioffended."27 He testified that

in 1985, he committed a sexual assault against his brother's wife after "drinking and

doing drugs with my friends."28 He also acknowledged that after drinking with friends,

he committed acts against a 16-year-old girl that led to him being charged with rape.

Before closing arguments, defense counsel proposed a special verdict form

requiring the jury 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, the jury 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.

8
No. 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 requiring juror unanimity as to which of these

alternative means the jury 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 the jury 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 unanimous jury

verdict.29 Chapter71.09 RCW allows indefinite commitment as an SVP where the jury

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 if not confined in

a secure facility."30 "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

29 RCW 71.09.060(1); see also In re Detention of Halqren. 156Wn.2d 795, 807-

08, 132 P.3d 714 (2006); In re Pers. Restraint of Young, 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

and safety ofothers.'311

"Personality disorder" is defined as:

[A]n enduring pattern of inner experience and behavior that deviates

markedly from the expectations of the individual's culture, is pervasive and

inflexible, has onset in adolescence or early adulthood, is stable over time

and leads to distress or impairment.'321

These definitions were provided in the court's jury 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, these alternative means "may operate independently ormay

work in conjunction."34 And "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."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 the jury that it must

reach unanimous agreement as to which condition it found satisfied that element.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 of Halqren, 156 Wn.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.

10
No. 68147-8-1/11

reach the verdict is not required so long as there is substantial evidence to

support a verdict on 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 court will not second guess

the credibility determinations ofthe jury.39

This court's opinion in In re Detention ofTiceson is pertinent to our review.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 sufficient to 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 "sufficient to allow a rational juror to find Ticeson's personality

disorder makes him likely to reoffend," and thus adequately supported the verdict.42

Like Ticeson, Dillingham does not contend there was insufficient evidence that

he has a mental abnormality that predisposes him to acts of sexual 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)).

40 159 Wn. App. 374, 246 P.3d 550 (2011).

41 id at 388.

42 Id. at 388-89.

11
No. 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 in Ticeson. Dillingham's argument that there was insufficient

evidence that his personality disorder made him more likely to commit acts of sexual

violence fails. Like the State's expert witness in Ticeson. Dr. Hupka testified that

Dillingham's antisocial personality disorder increased the risk that he would commit

more acts of sexual violence. He testified that the combination of these conditions

presented a high risk:

I do believe he's an antisocial personality disordered man, but that's not

the whole story. He's also a sexually deviant man .... I think 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 bit motivated 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 likelihood that 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 the jury could have

found that Dillingham's antisocial personality disorder or substance abuse made him

more likely to engage in predatory acts of sexual violence if not confined. There is no

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

12
No. 68147-8-1/13

requirement that the State prove that the antisocial personality disorder or substance

abuse, standing alone, makes Dillingham likely to reoffend.44 Dillingham provides no

authority to support his argument that all of his diagnoses must be considered without

regard to one another, as if in a vacuum. Such a conclusion would be contrary to our

Supreme Court's recognition that the various mental abnormalities and personality

disorders in a given case "may work in conjunction" 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 of the 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 argument that is not supported by the evidence or the law as I

have explained it to you.46 Juries are presumed to follow the court's instructions.47

Dillingham's argument that the antisocial personality disorder diagnosis did not

meet the definition of "personality disorder" because it was not "enduring, pervasive,

inflexible and stable over time" is not persuasive.48 Dr. Hupka testified that Dillingham's

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

45 Id at 810.

46 Clerk's Papers at 7.

47 State v. Foster, 135Wn.2d 441, 472, 957 P.2d 712 (1998).

48 Appellant's Br. at 19.

13
No. 68147-8-1/14

antisocial personality disorder was a "chronic orlifelong condition! ]."49 This evidence

directly supports a reasonable conclusion that Dillingham's antisocial personality

disorder was stable and enduring.

There was sufficient evidence presented at trial to support the jury'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 re Detention ofSease.50 In that case, the State

presented evidence that Sease had both borderline personality disorder and antisocial

personality disorder.51 Sease argued it was errorto not provide 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 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 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.

50 149 Wn. 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 unanimous jury

verdict is not implicated and the alternative means doctrine does not apply." id, at 77

(alteration in original) (internal quotation marks omitted) (quoting State v. Smith, 159

Wn.2d 778, 783, 154 P.3d 873 (2007)).

14
No. 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, it determined 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 sufficient to

support the jury'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 over time. Dr. Hupka also explained that any remission

in Dillingham's overt symptoms were in large part attributable to 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 more typical[ ] that individuals do not reoffend 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. That kind of containment, it's an external containment that

supplies a structure that he lacks within." ]d at 292.

15