### FILED June 2, 2015 In the Office ofthe ClerkofCourt W A State CourtofAppeals, Division III INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE Inre the Detention of: ) ) No. 31107-4-III ALBERTBROOKS, ) ) Appellant. ) UNPUBLISHED OPINION KORSMO, 

### J.

- AlbertBrooks challenges his commitment as a sexuallyviolent predator, contendingthatthe courterred in allowing evidence ofuncharged actions and thatthe evidence does notestablish a currentmental abnormality. We affirm. FACTS In Septemberof 1978, 

### Mr. Brooks attemptedto kidnap a I7-year-old Spokane girl, T.N., by approaching her from behind andholding a knifeto herthroat. However, T.N. resisted and escaped. Fourmonths later he attemptedto kidnap I5-year-old S.N. in Post Falls, Idaho, but she also escaped. That same nighthekidnapped andraped I5-year-old D.W. elsewhere inPostFalls. Charges in Spokane County relating toT.N. were dropped following 

### Mr. Brooks' indictment in Idaho. He thenpleadedguilty toraping D.W. in exchange for dismissal ofthe charges relatingto S.N. Followinghis conviction, evidence emergedthathe also hadmolested a neighbor, II-year-oldDa.L. Followinghis stint in prison, he resumedkidnapping andraping young girls. Although living inIdaho, during visits to Spokanehe kidnapped andraped I2-year-oldNo. 31107-4-111 In re the Detof Brooks
De.L. in 1986 and lO-year-old K.G. in 1988. He again reached an agreement andpleaded guilty to charges relating to K.G. in exchange for dismissal ofcharges relating to De.L. While he was still incarcerated on that conviction, the State broughtthis action in 2008 to have Mr. Brooks committed as a sexually violentpredator. The trial court conducted apre-trial hearing to address the six noted prior incidents. The evidencerelating to the two convictions was admitted without objection, but theparties contestedthe evidence relating to the four unadjudicated offenses. Ultimately, the trial court struck evidence relating to Da.L., reasoning that the incident
was substantially different from the other acts and thatthe prejudicial effect outweighed the probative value. The trial court admitted the evidence relating to T.N., S.N., and De.L. The courtreasoned thatwhile the evidence was prejudicial, the prejudicial effect didnot substantially outweigh the compelling probative value ofthe evidence in light of the State's heavy burden ofproof. At trial, the State presentedtestimony from each ofthe five victims, along with corroborating evidence from the respective police investigations into those incidents. The State then presentedtestimony from Dr. BrianJudd, who diagnosed Mr. Brooks with pedophilia and a rape paraphilia. 1 He based the diagnoses onthe evidence from the past crimes, his interviews with Mr. Brooks, and Mr. Brooks' treatmentrecord while

1The technical term used was "paraphilia, not otherwise specified, nonconsent." Report ofProceedings at 359. 2No. 31107-4-III In re the Detof Brooks
incarcerated. Dr. Junn then testified aboutpredictive actuarial and diagnostic

. instruments2 that supported his conclusion that Mr. Brooks was likely to reoffend. The

defensepresented expert testimony from Dr. Theodore Donaldson, who questioned the validity ofDr. Judd's diagnoses and the accuracy ofthe predictive actuarial instruments used. Thejury found that Mr. Brooks was a sexually violentpredator. He then timely appealed to this court. ANALYSIS Mr. Brooks contends the trial court erred in admitting evidence ofthe prior, unadjudicated offenses and that the evidence was insufficient to support thejury's verdict. We address the claims in that order. Admissibility of Prior, Unadjudicated Offenses Mr. Brooks first argues that the trial court erred in admitting evidence concerning the three unadjudicated incidents, claiming that the trial court improperly considered the State's need to prove the elements ofits case. Hecontends that without that consideration, the trial court's decision to admit this evidence is untenablebecause it

2The actuarial instruments employed were the Sex OffenderRiskAppraisal Guide (SORAG), and the Static-99R, while the primary diagnostic instrument employed was the Structured Risk Assessment-Forensic Version (SRA-FV). 

### 3No.31107-4-III In re the Detof Brooks
struckthe equally prejudicial evidence relating to Da.L, and therefore should have struck this evidence. Well-settled standards govern this appeal. Rulings admitting or excluding evidence are reviewed for an abuse ofdiscretion. In re Det. of Duncan, 167 Wn.2d 398, 402, 219 P.3d 666 (2009). Discretion is abused when it is exercised onuntenable grounds or for untenable reasons. State ex reI. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). Evidence ofother crimes, wrongs, or acts are inadmissible to prove character orto show an action in conformity therewith, but may be admitted for other purposes. ER404(b). In a proceedingto commit an individual as a sexually violent predator, evidence ofpast sexual violence is highly probative ofmental state and the propensity for future sexual violence. In re Det. ofTuray, 139 Wn.2d 379, 400-02, 986 P.2d 790 (1999); In re Pers. Restraint of Young, 122 Wn.2d 1,54-55, 857 P.2d 989 (1993). However, otherwise admissible evidence may be excluded where its probative value is substantially outweighed by the danger ofunfairprejudice. ER403. Evidence is unfairly prejudicial where it creates an undue tendency to suggest a decision on an improperbasis. State V. Cronin, 142 Wn.2d 568, 584, 14 P.3d 752 (2000); State v. Cameron, 100 Wn.2d 520,529,674 P.2d 650 (1983). With these standards in mind, the outcome is clear. The trial court necessarily had to considerthe State's burden ofproofwhen determining the admissibility ofevidence. Evidence "tending to prove or disprove" is by definition probative. BLACK'S LAW 4No. 31107-4-II1 In re the Detof Brooks DICTIONARY, l397 (lOth ed. 2014). Since evidence is only inadmissible underER403 where the danger ofprejudice substantially outweighs itsprobative value, it wasproper for the trial court to consider whetherthe evidence tends to prove the necessary elements ofthe State's case. Mr. Brooks is correct in contendingthat the trial court did not distinguish the prejudicial impact ofthe admitted evidence from the stricken evidence. However, the evidence relating to T.N., S.N., and De.L. was admitted not because it was less prejudicial, but because it was moreprobative. The trial court noted that the incident involving Da.L. was different in nature from the other incidents, and therefore was less probative to establishthepetitioner's case,3 while the admitted evidence carried a "strong, compellingprobative value." The decision to admit or strike evidence under ER 403 involves balancingthe potential for prejudice against the probative value ofthe evidence. The trial courtproperly weighed those values against each other in making its decision to admit the evidence at issue. Mr. Brooks has failed to point to any facts orlaw that would render the trial court's grounds orreasoning untenable. Therewas no abuse of discretion.

3Therecord readily supports that conclusion. Da.L. was the only victim of molestation, the only victim who was not kidnapped, and the only victim who knew Mr. Brooks priorto the actual or attempted sexual assault. Italso was the only incident not subject to a police investigation and not corroborated by other evidence. 

### 5No.31107-4-III In re the Detof Brooks Sufficiency of the Evidence Mr. Brooks contends that the State failed to prove that he currently suffers from a mental abnormality that would make him likely to reoffend. He contends that Dr. Judd's diagnoses were unfounded because he made no diagnosis in 2003 and there was no subsequent evidence ofsexual deviancy during his incarceration. He also points to the testimony from the defense expert questioning Dr. Judd's diagnoses and the actuarial instruments used to demonstrate that he was likely to reoffend. In order to commit an individual as a sexually violent predator, the petitioner must show that the individual has (1) committed a crime ofsexual violence and (2) suffers from a mental abnormality orpersonality disorder, which (3) makes the person likely to engage in predatory acts ofsexual violence ifnot confined in a secure facility. RCW 71.09.060(1); RCW 71.09.020(18). Here, Mr. Brooks contends that the evidence was insufficient to establish that he suffers from a mental abnormality orthat he is likely to engage in further predatory acts ofsexual violence. Although an action to commit an individual as a sexually violent predator is a civil proceeding, the criminal standard ofreview applies to appeals challenging the sufficiency ofthe evidence. In re Det. of Thorell, 149 Wn.2d 724, 744, 72 P.3d 708 (2003). Thus, evidence is sufficient where, when viewed in the light most favorable to the State, a rational trier offact could find each essential element beyond a reasonable doubt. Id.

6No.31107-4-II1 In re the Detof Brooks
Deference is given to the trier offact on issues ofcredibility and persuasiveness ofthe evidence. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004). The State relied primarily upon the testimony ofDr. Juddto establish that Mr. Brooks suffers from a mental abnormality that makes him likely to commit further acts of sexual violence. Dr. Judd diagnosed Mr. Brooks with pedophilia and a rape paraphilia based on Mr. Brooks' past offenses and treatment record, as well as direct observation. His testimony was supported by several actuarial and diagnostic instruments suggesting Mr. Brooks was likely to reoffend. This evidence, taken together with the evidence ofhis previous sexual violence and recidivism, was more than sufficient to sustainthejury's determination that Mr. Brooks currently suffered from a mental abnormality and that he
was likely to engage in further predatory acts ofsexual violence. Much ofthe argument presented by Mr. Brooks on appeal is merely a reiteration ofthe defense expert's testimony challenging Dr. Judd's diagnoses andthe predictive accuracy ofthe actuarial instruments. These are solely issues ofcredibility and persuasiveness that the trier offact, not a reviewing court, must weigh. His argument that Dr. Judd's diagnosis is factually without basis due to the fact that no diagnosis was made in 2003 is unpersuasive. The record clearly indicates that Dr. Judd refrained from making an initial diagnosis in order to further observe Mr. Brooks. He then diagnosed Mr. Brooks only once he had sufficient information, based in part on those additional

7No. 31107-4-III In re the Detof Brooks
observations. These facts do not undercut Dr. Judd's diagnoses, butrather demonstrate prudence in ascertaining all the pertinent facts prior to diagnosing a malady. There was sufficient evidence to supportthe conviction. Affirmed. A majority ofthe panel has determined this opinion will notbeprinted in the Washington Appellate Reports, but it will be filed for publicrecord pursuantto RCW 2.06.040.

WE CONCUR:

Lawrence-Berrey,
.

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