## FILED NOV. 05, 2013 In the Office ofthe ClerkofCourt W A StateCourtofAppeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE 

### ) No. 30845-6-111 In re the Detention of: 

### ) ) STEVEN G. RITTER, 

### ) ) Appellant, 

### ) 

## v. ) PUBLISHED OPINION 

### ) STATE OF WASHINGTON, 

### ) ) Respondent. 

### ) BROWN, 

### J.

- Steven G. Ritter appeals his involuntary commitment as a sexually violent predator (SVP). He contends, among otherthings, thatthe trial court should have held a 

### Frye1 hearing on a predictive tool, the forensicversion ofthe Structured Risk Assessment (SRA-FV). Becausewe agree with him, we exercise our discretion to ''take any otheraction asthe merits ofthe case and the interest ofjustice may require." RAP 12.2; 

### see RAP 12.3(b). We remand solely forthetrial court to hold a 

### Frye hearing

on the SRA-FVand to enterfactual findings and legal conclusionsfor our review. We retainjurisdiction overthe remaining issues and allow supplemental briefing concerning the outcome ofthe 

### Frye hearing.

1 

### Frye v. UnitedStates, 293 F. 1013 (D.C. Cir. 1923).No. 30845-6-111 In re Det. ofRitter FACTS After committing various sexual assaults between ages 14 and 19, Mr. Ritter eventually pleaded glJilty to first degree child molestation. He spent about seven years in prison, where he was diagnosed with pedophilia and antisocial personality disorder. Then, in February 2007, the State petitioned to involuntarily commit Mr. Ritter as an SVP. In July 2006 and November2009, Dale 

### R. Arnold, PhD, wrote reports concluding Mr. Ritter met all SVP criteria. Dr. Arnold applied actuarial instruments, including the revised Static-99 (Static-99R), the revised Static-2002 (Static-2002R), and the revised Minnesota Sex Offender Screening Tool (MnSOST-R), to Mr. Ritter's static risk factors; additionally, Dr. Arnold applied his clinical judgmentto Mr. Ritter's stable dynamic risk factors.2 In November2011, Dr. Arnold revised his prior reports to incorporate the SRAFV as a tool structuring his clinical judgment of Mr. Ritter's stable dynamic risk factors. Mr. Ritter unsuccessfully challenged the SRA-FV in a motion in limine citing Frye. Without holding a Frye 

### hearing, the court concluded upon the briefing and argument that the SRA-FV satisfied Frye as eitheran actuarial or clinical prediction offuture dangerousness. At ajurytrial in January 2012, the State relied upon evidence of Mr. Ritter'sjuvenile and adult conduct; his diagnosed pedophilia and antisocial personality disorder; and predictions of his future dangerousness derived from the Static-99R, 

### Static-2002R, and SRA-FV. The trial court ordered Mr. Ritter's commitment afterthe unanimousjuryfound he metall SVP criteria. He appealed.

2 See infra note 7 for the definitions ofstatic and stable dynamic risk factors. 2No. 30845-6-111 

### In re Del. ofRitter ANALYSIS The issue is whetherthe trial court should have held a 

### Frye hearing on the SRAFV before allowing Dr. Arnold to use it attria/. Mr. Ritter contends this predictive tool does notsatisfy 

### Frye.3 We review evidence admission under 

### Frye de novo. 

### State v. Baity, 140Wn.2d 1, 9-10, 991 P.2d 1151 (2000). In determining if novel scientific evidence satisfies 

### Frye, we perform "a searching review which may extend beyond the record and involve consideration ofscientific literature as well as secondary legal authority." 

### State v. Copeland, 130Wn.2d 244,255-56,922 P.2d 1304 (1996) (citing 

### State v. Cauthron, 120Wn.2d 879, 887-88, 846 P.2d 502 (1993)). Under 

### Frye, "evidence deriving from a scientifictheory or principle is admissible only ifthattheory or principle has achieved general acceptance in the relevant scientific community." 

### State v. Martin, 101 Wn.2d 713, 719, 684 P.2d 651 (1984). 'The core

concern of 

### Frye is only whetherthe evidence being offered is based on established scientific methodology." 

### Cauthron, 120Wn.2d at 889. Because both actuarial and clinical predictions offuture dangerousness satisfy 

### Frye, they are admissible without a 

### Frye hearing ifthey satisfy ER 401 through 403 and ER 702 through 703. 

### See Thorell, 149Wn.2d at 754-56,758. Mr. Ritter argues the SRA-FV does not satisfy 

### Frye because it is not based on

3 Our Supreme Court adopted the 

### Frye testfor determining admissibility of novel scientific evidence. 

### State v. Martin, 101 Wn.2d 713, 719, 684 P.2d 651 (1984); 

### see also State v. Riker, 123Wn.2d 351, 360 n.1, 869 P.2d 43 (1994) (reaffirming the 

### Frye test in a criminal case despite 

### Daubert v. MerrellDowPharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786,125 L. Ed. 2d 469 (1993)); 

### Young, 122Wn.2d at 56 (applying the 

### Frye test in an SVP commitment after 

### Daubert); Thorell, 149Wn.2d at 754 (same). 

### 3No. 30845-6-111 In re Det. ofRitter established scientific methodology and has not achieved general acceptance in the scientific community predicting future dangerousness. The SRA-FVis a structured clinicaljudgmenttool for evaluating "stable dynamic risk factors" and integrating them with "static risk factors" considered by actuarial instruments.4 Clerk's Papers (CP) at47, 785,968; Report of Proceedings (RP) at 592,782-83.5 See generallyRAYMONDA. KNIGHT & DAVIDTHORNTON, EVALUATING AND IMPROVING RISKASSESSMENT SCHEMES FOR SEXUAL RECIDIVISM 18-19 (Nat'llnst. ofJustice, U.S. Dep't ofJustice Document No. NCJ 217618, 2007) ("In general, [structured risk assessment] is better conceptualized as a heuristicframework that can be used to guidethe selection and organization of variables from any relevant data set."). Thus, a prediction offuture dangerousness based on the SRA-FV is neither purely actuarial nor purely clinical. By our research, structured risk assessment originated in April 2002. David Thornton, Constructing and Testing a FrameworkforDynamic RiskAssessment, 14 SEXUALABUSE: J. RES. &TREATMENT 139 (2002). A forensic version emerged asthe

4 Risk factors are either static, which are unchangeable, ordynamic, which are changeable; dynamic risk factors are eitherstable, which can change slowly, or acute, which can change quickly. The SRA-FV considers three domains ofstable dynamic risk factors: "Sexual Interests," "Relational Style," and "Self-Management." CP at 670, 786; RP at 992. The sexual interests domain includes "Sexual preferences for children," "Sexualized violence," and "Sexual preoccupation." CP at 670. The relational style domain includes "Emotional congruence with children," "Lack ofemotionally intimate relationships [with adults]," "Callousness," and "Grievance thinking." CP at 670. The self-management domain includes "Lifestyle impulsivity," "Resistance to rules [and] supervision," and "Dysfunctional coping." CP at 670. 5 Unless otherwise noted, all citationsto the Report of Proceedings reference 

# I the transcript ofthejurytrial held between January 11 and 26, 2012. t

# I i 4No. 30845-6-111 In re Det. ofRitter "SRA Need Assessment" in March 2007 and became known as the "SRA-FV" in October 2009 and December2010. KNIGHT ÞTON, supra, passim; David Thornton & Raymond 

### A. Knight, Using SRA Need Domains Based on Structured Judgmentto Revise Relative Risk Assessments Based on Static-2002 and Risk Matrix 2000, Presentation atthe 28th Annual Research and Treatment Conference ofthe Ass'n forthe Treatment ofSexual Abusers (Oct. 1, 2009); David Thornton, Structured RiskAssessment: Using the ForensicVersion ofthe SRA in Sex Offender Risk Assessment, Presentation at a Workshop By Cent. Coast Clinical 

### &Forensic Psychology Servs. (Dec. 2, 2010). The SRA-FV has been presented at professional conferences and is expected to be published soon in a peer-reviewed journal titled SexualAbuse:A Journalof Research and Treatment. Meanwhile, Mr. Ritter's expertwitness, Richard Wollert, PhD, has criticized an assumption underlying structured risk assessment. Richard Wollert & Elliot Cramer, The Constant MultiplierAssumption Misestimates Long-T enn Sex OffenderRecidivism Rates, 36 LAw & HUM. BEHAV. 390 (2012). In February 2011, California adopted the SRA-FV as its official dynamic risk assessment instrumentfor evaluating sex offenders' future dangerousness. Letterfrom Janet Neely, DeputyAtt'y Gen. ofCal., on Behalfofthe Cal. State Authorized Risk AssessmentTool for Sex Offenders Comm., to Jerry Brown, Governor ofCal. (Feb. 25, 2011); see CAL. PENAL CODE 

### §§ 290.04, .09. But in September2013, California switched to the Stable-2007/Acute-2007 for unspecified reasons. RiskAssessment



### 5No. 30845-6-111 In re Oet. ofRitter Instruments, CAL. STATE AUTHORIZED RISKASSESSMENTTOOL FOR SEX OFFENDERS COMM., http://saratso.org/index.cfm?pid=467 (last visited Oct. 22, 2013). Nonetheless, the SRA-FV may be a viable tool structuring clinical judgment of stable dynamic risk factors in Washington. See Amy Phenix, Current Research on Assessing the Risk ofSexual Offenders, Presentation at the Annual Conference ofthe Wash. Ass'n for the Treatment ofSexual Abusers (Feb. 23, 2013) (presentation slides available atWASH. ASS'N FORTHE TREATMENTOF SEXUALABUSERS, http://www.watsa.org/ Resources/Documents/4.Phenix%20Handouts%202-23-13.pdf (lastvisited Oct. 22, 2013». We have found no published state orfederaljudicial opinion addressing the admissibility ofthe SRA-FV or any similar dynamic risk assessment instrument. Absent mandatory or persuasive authority, we conclude where an expertwitness derives a prediction offuture dangerousness in whole or partfrom a novel dynamic risk assessment instrument like the SRA-FV, the trial court must hold a Frye hearing on the instrument before the expert may use it attrial. Here, Dr. Arnold's report said "all ofthe instruments Mr. Ritterwas rated on are simply tools designed to guide a clinical opinion." CP at 788. Dr. Arnold's trial testimony confirmed this approach: Q. Doctor,

...would you believe you met commitment criteria to a reasonable degree ofpsychological certainty ifyou didn't havethe [instruments] to use? A. Yes. Q. You would have that confidence today withouttheir usage? 

### A. With Mr. Ritter in this case 

### Iwould. Q. So you basically would be relying on your clinical judgment?



### 6No. 30845-6-111 In re Det. ofRitter 

### A. Iwould be relying upon a guided empirical approach because I know what factors are related to sexual offender recidivism, and in this case they're quite clear. RP at 977-78; see RP at 764. Contrary to these statements, Dr. Arnold ultimately used the SRA-FV in a mechanical way, assigning Mr. Ritter recidivism probabilities partly based on his domain scores. The bottom line is Dr. Arnold partly derived his prediction ofMr. Ritter's future dangerousness from a novel dynamic risk assessment instrument, the SRA-FV. Therefore, we conclude the trial court should have held a Frye hearing on the SRA-FV before allowing Dr. Arnold to use it attrial. Considering our analysis, we do not reach Mr. Ritter's remaining issues at this time. Remanded for proceedings consistentwith this interlocutorydecision.

Brown, J. WE CONCUR:

orsmo, C.J. 

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