FILED 


June 2, 2015 


In the Office of the Clerk of Court 


W A State Court of Appeals, Division III 


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 


DIVISION THREE 


In re the Detention of: ) 

) No. 31107-4-III 

ALBERT BROOKS, ) 

) 

Appellant. ) UNPUBLISHED OPINION 

KORSMO, J. - Albert Brooks challenges his commitment as a sexually violent 

predator, contending that the court erred in allowing evidence ofuncharged actions and 

that the evidence does not establish a current mental abnormality. We affirm. 

FACTS 

In September of 1978, Mr. Brooks attempted to kidnap a I7-year-old Spokane girl, 

T.N., by approaching her from behind and holding a knife to her throat. However, T.N. 

resisted and escaped. Four months later he attempted to kidnap I5-year-old S.N. in Post 

Falls, Idaho, but she also escaped. That same night he kidnapped and raped I5-year-old 

D.W. elsewhere in Post Falls. Charges in Spokane County relating to T.N. were dropped 

following Mr. Brooks' indictment in Idaho. He then pleaded guilty to raping D.W. in 

exchange for dismissal ofthe charges relating to S.N. Following his conviction, evidence 

emerged that he also had molested a neighbor, II-year-old Da.L. 

Following his stint in prison, he resumed kidnapping and raping young girls. 

Although living in Idaho, during visits to Spokane he kidnapped and raped I2-year-old 
No. 31107-4-111 

In re the Det ofBrooks 

De.L. in 1986 and lO-year-old K.G. in 1988. He again reached an agreement and pleaded 

guilty to charges relating to K.G. in exchange for dismissal of charges relating to De.L. 

While he was still incarcerated on that conviction, the State brought this action in 2008 to 

have Mr. Brooks committed as a sexually violent predator. 

The trial court conducted a pre-trial hearing to address the six noted prior 

incidents. The evidence relating to the two convictions was admitted without objection, 

but the parties contested the 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 that the prejudicial effect outweighed 

the probative value. The trial court admitted the evidence relating to T.N., S.N., and 

De.L. The court reasoned that while the evidence was prejudicial, the prejudicial effect 

did not substantially outweigh the compelling probative value of the evidence in light of 

the State's heavy burden ofproof. 

At trial, the State presented testimony from each ofthe five victims, along with 

corroborating evidence from the respective police investigations into those incidents. 

The State then presented testimony from Dr. Brian Judd, who diagnosed Mr. Brooks with 

pedophilia and a rape paraphilia. 1 He based the diagnoses on the evidence from the past 

crimes, his interviews with Mr. Brooks, and Mr. Brooks' treatment record while 

1 The technical term used was "paraphilia, not otherwise specified, nonconsent." 

Report of Proceedings at 359. 

2 

No. 311 07-4-III 

In re the Det ofBrooks 

incarcerated. Dr. Junn then testified about predictive actuarial and diagnostic 

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

defense presented expert testimony from Dr. Theodore Donaldson, who questioned the 

validity of Dr. Judd's diagnoses and the accuracy of the predictive actuarial instruments 

used. 

The jury found that Mr. Brooks was a sexually violent predator. He then timely 

appealed to this court. 

ANALYSIS 

Mr. Brooks contends the trial court erred in admitting evidence of the prior, 

unadjudicated offenses and that the evidence was insufficient to support the jury's 

verdict. We address the claims in that order. 

Admissibility ofPrior, 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 of its case. He contends that without that 

consideration, the trial court's decision to admit this evidence is untenable because it 

2 The actuarial instruments employed were the Sex Offender Risk Appraisal Guide 

(SORAG), and the Static-99R, while the primary diagnostic instrument employed was the 

Structured Risk Assessment-Forensic Version (SRA-FV). 

3 

No.31107-4-III 

In re the Det ofBrooks 

struck the 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 of discretion. In re Det. ofDuncan, 167 Wn.2d 398, 

402, 219 P.3d 666 (2009). Discretion is abused when it is exercised on untenable 

grounds or for untenable reasons. State ex reI. Carroll v. Junker, 79 Wn.2d 12, 26, 482 

P.2d 775 (1971). Evidence of other crimes, wrongs, or acts are inadmissible to prove 

character or to show an action in conformity therewith, but may be admitted for other 

purposes. ER 404(b). In a proceeding to commit an individual as a sexually violent 

predator, evidence of past sexual violence is highly probative of mental 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 ofYoung, 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 of unfair prejudice. ER 403. Evidence is 

unfairly prejudicial where it creates an undue tendency to suggest a decision on an 

improper basis. 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 consider the State's burden of proof when determining the admissibility of evidence. 

Evidence "tending to prove or disprove" is by definition probative. BLACK'S LAW 

4 

No. 31107-4-II1 

In re the Det ofBrooks 

DICTIONARY, l397 (lOth ed. 2014). Since evidence is only inadmissible under ER 403 

where the danger of prejudice substantially outweighs its probative value, it was proper 

for the trial court to consider whether the evidence tends to prove the necessary elements 

of the State's case. 

Mr. Brooks is correct in contending that the trial court did not distinguish the 

prejudicial impact of the 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 more probative. The trial court noted that the incident 

involving Da.L. was different in nature from the other incidents, and therefore was less 

probative to establish the petitioner's case,3 while the admitted evidence carried a 

"strong, compelling probative value." The decision to admit or strike evidence under ER 

403 involves balancing the potential for prejudice against the probative value of the 

evidence. The trial court properly 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 or law 

that would render the trial court's grounds or reasoning untenable. There was no abuse of 

discretion. 

3 The record 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 prior to the actual or attempted sexual assault. It also was the only incident not 

subject to a police investigation and not corroborated by other evidence. 

5 

No.31107-4-III 

In re the Det ofBrooks 

Sufficiency ofthe 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 of sexual 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 of sexual violence and (2) suffers 

from a mental abnormality or personality disorder, which (3) makes the person likely to 

engage in predatory acts of sexual 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 or that he is likely to 

engage in further predatory acts of sexual violence. 

Although an action to commit an individual as a sexually violent predator is a civil 

proceeding, the criminal standard of review applies to appeals challenging the sufficiency 

of the evidence. In re Det. ofThorell, 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 of fact could find each essential element beyond a reasonable doubt. Id. 

6 

No.31107-4-II1 

In re the Det ofBrooks 

Deference is given to the trier of fact on issues of credibility and persuasiveness of the 

evidence. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004). 

The State relied primarily upon the testimony of Dr. Judd to 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 of his 

previous sexual violence and recidivism, was more than sufficient to sustain the jury's 

determination that Mr. Brooks currently suffered from a mental abnormality and that he 

was likely to engage in further predatory acts of sexual violence. 

Much of the argument presented by Mr. Brooks on appeal is merely a reiteration 

of the defense expert's testimony challenging Dr. Judd's diagnoses and the predictive 

accuracy of the actuarial instruments. These are solely issues of credibility and 

persuasiveness that the trier of fact, 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 

7 

No. 31107-4-III 

In re the Det ofBrooks 

observations. These facts do not undercut Dr. Judd's diagnoses, but rather demonstrate 

prudence in ascertaining all the pertinent facts prior to diagnosing a malady. 

There was sufficient evidence to support the conviction. 

Affirmed. 

A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to RCW 

2.06.040. 

WE CONCUR: 


Lawrence-Berrey, . 

8