### FILED Aug. 11, 2016 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISIONTHREE Inre the Detention of SCOTTR. HALVORSON, Appellant. ) ) ) ) ) No. 32762-1-111
UNPUBLISHED OPINION
PENNELL,

### J.

- ScottHalvorson appeals an order ofcommitmentbased on ajury finding that he is a sexually violentpredator (SVP). 

### Mr. Halvorson argues the admission ofimproper, prejudicial evidence deprived him ofhis rightto a fair trial. We affirm. 

### FACTS Mr. Halvorson1has a lengthy history ofsex offenses. Duringhis SVP trial, 

### Mr. Halvorsontestified abouthis history and deniedresponsibility for mostofthepast allegations against him, includingthoseresulting in convictions. Withthe exception of inappropriate sexual contactwithhis sisters as ajuvenile,

### Mr. Halvorsontestified his otherpast sex offense accusations were fabricated, misconstrued, or occurredwhile he
was blacked out from alcohol.

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### Mr. Halvorson currently goes bythe name Raymond ScottReynolds. However, the majority oftherecordrefers tohim as ScottHalvorson, andthe State filed an SVP petitionunderthis name.No. 32762-1-III In re Det. of Halvorson
Mr. Halvorson's most recent conviction was in 2008 for third degree rape and second degree assault. The victim ofthat crime is a female identified as D.S. She sustained petechial hemorrhaging and otherbruising from the assault. Mr. Halvorson maintained he had consensual sex with D.S. and that the bruising occurredbecause D.S. asked to be choked during intercourse. Before the SVP trial, Mr. Halvorson sought permissionto introduce evidence corroborating his claim that he had consensual sex with D.S. Pertinentto this appeal, Mr. Halvorson moved under ER412 to introduce evidence that a witness had once observed D.S. requesting another man "choke" her during an act ofprostitution. Br. ofResp't at 21. The trial court excluded the evidence, commentingthat the proffered incident was "somewhatremote" and "also kind ofspeculative." 2 Verbatim Report ofProceedings (VRP) (Aug. 19, 2014) at 315. The courtruled the evidence did not appear to be relevant. In addition to requesting permission to admit evidence, Mr. Halvorson also moved to exclude testimony by the State's expert witness, Dr. Brian Judd. Mr. Halvorson objected to testimony from Dr. Judd about his diagnoses ofantisocial personality disorder, alcohol dependence, and marijuana abuse. The trial court overruled Mr. Halvorson's objections, explaining the diagnostic testimony was "appropriate" and admissible. 

### Id. at 312. The court noted some prejudicial effect in admitting the alcohol
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# iNo. 32762-1-III In re Det. of Halvorson dependence and marijuana abuse evidence but concluded it did notwarrant exclusion. Attrial, Dr. Judd testified he had diagnosed Mr. Halvorson withparaphilianot otherwise specified (nonconsent), pedophilic disorder, antisocial personality disorder, alcohol dependence in a controlled environment, and cannabis abuse disorder. According to Dr. Judd, the pedophilia andparaphilia are mental abnormalities and are chronic conditions. The antisocial personality disorder diagnosis was based onMr. Halvorson's pervasive disregard for and violation ofthe rights ofothers, deceitfulness, impulsivity, irritability and aggressiveness, reckless disregard for the safety ofselfand others, repeated failure to adhere to responsibilities under court supervision, and lack ofremorse. Dr. Judd opinedthatMr. Halvorson's mental abnormalities ofpedophilia and paraphilia are whatpredispose Mr. Halvorson to commit sexually violent offenses. Dr. Judd explained thatwhile an antisocial personality disorder, standing alone, would not predispose a person to commit sexually violent offenses, it can operate as a contributing factor, increasing the risk ofre-offense. Because ofthe interplay between antisocial personality disorder and Mr. Halvorson's mental abnormalities, Dr. Judd integrated Mr. Halvorson's diagnosis for antisocial personality disorder into his overall risk assessment. While Mr. Halvorson's antisocial personality disorderwas relevant to his risk assessment, Dr. Judd explained Mr. Halvorson's history ofalcohol dependence and
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# I l iNo. 32762-1-111 In re Det. of Halvorson marijuana use were not. According to Dr. Judd, a treatment program could address any risk posed by Mr. Halvorson's drug and alcohol problems. The lastpretrial motion relevant to this appeal was Mr. Halvorson's objection to the admission ofStructuredRisk Assessment-Forensic Version (SRA-FV) evidence under Frye.2 The trial court admitted the testimony. Thejuryultimately found Mr. Halvorson to be an SVP, and the trial court entered
an order committing him to the custody ofthe Department ofSocial and Health Services. Mr. Halvorson appeals. ANALYSIS 

### Evidence of personality disorder, alcohol dependence, and marijuana abuse In order to be admissible, evidence must be relevant. ER402. In the current context, evidence is relevant ifit bears on the elements thejurymust consider in determining whether the respondent to an SVP petition is an SVP. In re Def. ofWest, 171 Wn.2d 383, 397, 256 P.3d 302 (2011) (citing ER401). Those elements are: "(1)that the respondent has been convicted ofor charged with a crime ofsexual violence, (2) that the respondent suffers from a mental abnormality orpersonality disorder, and (3) that such



# . abnormality or disorder makes the person likely to engage in predatory acts ofsexual

2Frye v. UnitedStates, 54 App. D.C. 46, 293 F. 1013 (D.C. Cir. 1923). 4No. 32762-1-111 In re Det. of Halvorson
violence ifnot confined in a secure facility." 3 West, 171 Wn.2d at 397 (citation and internal quotation marks omitted) (quotingIn re Det. of Post, 170 Wn.2d 302, 310, 241 P.3d 1234 (2010)). "Even ifrelevant, however, evidence may still be excluded ifits probative value is substantially outweighed by the likelihood it will misleadthejury." State v. Luvene, 127 Wn.2d 690, 706, 903 P.2d 960 (1995) (citing ER403). We first address Mr. Halvorson's objection to the personality disorder evidence. In general, "mental abnormality" and "personality disorder" are alternative means by which the State can prove a person meets criteria as an SVP. In re Det. of Halgren, 156 Wn.2d 795, 809-11, 132 P.3d 714 (2006). Ifboth mental abnormality andpersonality disorder are charged, care mustbe taken to ensurejuryunanimity. See id. The State originally petitionedto have Mr. Halvorson committed as an SVP on the basis ofboth alternative means. But after Dr. Judd testified Mr. Halvorson's antisocial personality disorder would not, by itself, pose a risk ofrecidivism, the finaljury instructions were amended. Underthe final instructions, a finding ofcommitment could only be based on thejury's determination that Mr. Halvorson had an applicable mental abnormality.

3 These elements are derived from the definition ofSVP at RCW 71.09.020(18). 5No. 32762-1-III In re Det. of Halvorson
Given the final charge to thejury, Mr. Halvorson argues his personality disorder became irrelevant and it was overly prejudicial to allow thejuryto consider this evidence. We disagree. The court's instructions protected Mr. Halvorson against the risk thejury would improperly convicthim on the personality disorder prong ofthe SVP statute. Although the instructions providedthis protection, they did not render the personality disorder evidence irrelevant. The State was entitled to draw upon Mr. Halvorson's general personality and history to place his mental abnormality in context and meet its burden to prove future risk ofrecidivism. See In re Det. of Audett, 158 Wn.2d 712, 147 P.3d 982 (2006) (State presented sufficient evidence when respondent's alcoholism combined with his pedophiliato create a risk ofrecidivism); In re Det. of Sease, 149 Wn. App. 66,201 P.3d 1078 (2009) (combination ofa variety ofrisk factors relevant to proving risk ofrecidivism). The manner in which the State presented its case reduced any risk of juror confusion about the probative nature ofthe personality disorder evidence. The State clarified in closing argument that Mr. Halvorson's mental abnormality was the basis for commitment but that the personality disorder folded into the risk assessment. This was consistent with Dr. Judd's testimony and the court's instructions. The State's presentation was appropriate and there is no basis for reversal.
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Our analysis ofthe alcohol and marijuana abuse evidence is different, butthe end result is the same. Dr. Judd did not find Mr. Halvorson's substance abuse relevantto the recidivism risk. Giventhis circumstance, the courtprobably should have granted Mr. Halvorson's motion for pretrial exclusion. But once trial began, things changed. Mr. Halvorson introduced evidence ofhis substance abuse before the State ever gotto Dr. Judd's testimony. Mr. Halvorson testified about his struggles with alcohol and use of marijuana. He explained he was drunk orblacked out during most ofhis past offenses. If anything, Dr. Judd's testimony that Mr. Halvorson's substance dependence was treatable and did not create a risk ofrecidivism reduced the prejudice ofthe drug and alcohol evidence volunteered by Mr. Halvorson. Admission ofDr. Judd's testimony did not constitute reversible error. 

### Evidence of alleged consent to asphyxiation Mr. Halvorson contests the trial court's decision to exclude evidence suggesting D.S. consented to sexual asphyxiation on a previous occasion with another man. He argues exclusion ofthis evidence violated ER412 and his due process right topresent a complete defense. ER412(c) provides that in a civil case, "evidence offered toprove the sexual behavior or sexual predispositionofany alleged victim is admissible ifit is otherwise
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admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and ofunfair prejudice to any party." A trial court's ruling on evidentiary matters is reviewed for manifest abuse ofdiscretion. State v. Magers, 164 Wn.2d 174, 181, 189 P.3d 126 (2008). Mr. Halvorson's proffered ER412 evidence was testimony from a witness who
once heard D.S. say, "Choke me. Choke me," while engaged in an act ofprostitution with an unknown client. Br. ofResp't at 21-22. According to Mr. Halvorson, this evidence suggested D.S. found strangulation arousing, thereby corroborating his claim that D.S. had consented to sex with him and wanted to be choked. Although Mr. Halvorson raised a consent defense at his original rape trial, he apparently did not seek to introduce the prior "Choke me. Choke me," statements at that time. So although D.S. testified at the original trial, she was never given the opportunity to respond to the allegation that she had made these prior statements. By the time ofMr. Halvorson's SVP trial, D.S. had died. When ruling on Mr. Halvorson's motion to presentthe "Choke me. Choke me," evidence, the trial court stated the incident was "somewhatremote" and "alsokind of speculative." 2 VRP (Aug. 19, 2014) at 315. The court added, "And I am not impressed with that testimony as it being specifically relevant to the question ofthe underlying
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motivation for the sex, which was a trade for drugs, allegedly." 

### Id. No further explanation, written or oral, was provided. The superior court did not abuse its discretion in excluding the proffered testimony
as speculative. What D.S. might have meant by "Choke me. Choke me," is unclear. Was D.S. expressing a statement ofdesire? Ifso, her statements would appear to be inadmissible hearsay because they would be offered for the truth ofthe assertion that D.S. wanted to be choked. Was D.S. issuing a command? Ifso, then without further explanation, the statements would not appear to be relevant. D.S. was purportedly engaged in prostitution at the time ofherprior statements. Given this context, it is far from certain that any commands issued by D.S. would have been a result ofher own desires orpreferences. Had D.S. still been alive and able to respond to the allegation that she had previously said, "Choke me. Choke me," our analysis might well be different. Under the current circumstances, we agree the trial court's order ofexclusion was appropriate. 

### Admissibility of SRA-FVevidence Mr. Halvorson argues the trial court improperly admitted SRA-FV evidence because it is not sufficiently reliable to meet the standard for admissibility under Frye. Subsequent to the briefing in this case, this DivisionjoinedDivision Two in holding that
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# !No. 32762-1-III In re Det. of Halvorson
it is. In re Det. of Ritter, 192 Wn. App. 493, 372 P.3d 122 (2016), review deniedby 185 Wn.2d 1039,
_ P.3d
_ (2016). Consistent with our analysis inRitter, wereject Mr. Halvorson's challenge to the admission ofSRA-FVtestimony in his case. CONCLUSION Mr. Halvorson's order ofcommitment is affirmed. A majority ofthe panel has determined this opinion will notbe printed in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040.

WE CONCUR:

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