### FILED rOURT OF

## APPEALS 

## DIVISION 2015 FEB 24 

## Pi 9 30 STATE OF 

## WASHINGTON

d BY IN THE COURT OF APPEALS OF THE STATE OF WASi' 

## aTON DIVISION II In re the Detention of: MARK ROBINSON, Appellant. No. 45120 - 4 -II
UNPUBLISHED OPINION

MAXA, J. — Mark Robinson appeals his order of civil commitment as a sexually violent predator (SVP). 

### He argues thatthere was insufficient evidence that he was likelyto engage in 

### predatory acts ofsexual violence ifnot confined in a secure facility, andtherefore thatthe evidence did not support thejury's verdict that he is an SVP. We disagree and affirm Robinson' s civil commitment as an SVP. FACTS 

### From the early 1990s until his arrest for rape in 2000, Robinson worked as a truck driver. Robinson admitted that he raped at least 12 women beginning in the late 1990s, many ofwhom 

### were prostitutes. He would pick up his victims in his truck, subdue them with threats offorce, and rape them. 

### In June 2000, Robinson picked up afemale hitchhiker in his truck and raped her. Robinson was arrested and charged with first degree rape and second degree kidnapping. He pled guilty and was sentenced to 143 months in prison. He participated in treatment for. 1245120 - 4 -II months while incarcerated, but made minimal progress. Nearthe end ofhis sentence in May 

### 2012, the State petitioned the trial court to civilly commit Robinson as an SVP. 

### Attrial,the Statepresented evidence relatingto the likelihood that Robinson would engage in predatory acts ofsexual violence ifnot confined in a secure facility. Robinson testified in his deposition and at trial about the rape for which he was convicted and admitted to 

### raping at least 12 women. A police officerwho investigated and arrested Robinson testified that Robinson claimed to have raped some 60 women over a five - year period. Both the State and Robinson called experts to provide opinions as to whether Robinson 

### was likelyto reoffend in the future. The State' s expert, Dr. Mark Patterson,testified that he had diagnosed Robinson with the mental abnormalities ofsexual sadism and frotteurism. He further testified that in his professional opinion Robinson was likely to commit additional violent sexual offenses if released into the community, and that continued supervision and treatment would not 

### adequately diminish this likelihood. Dr. Patterson testified that he applied actuarial instruments and his clinicaljudgment in assessing Robinson' s risk of reoffending. Robinson' s expert witness, Dr. Jan Looman, favored a stricter actuarial approach that did not take into account clinical judgment. He offered thejury a different actuarial assessment of Robinson's risk ofreoffending, as well as his opinion on the shortcomings of Dr. Patterson' s methods. Dr. Looman also testified that, in his opinion, Robinson' s sexual sadism was in

remission. 

### After trial,thejury returned a verdict that Robinson was an SVP. The trial court subsequently issued an order ofcommitment,which Robinson now appeals.

245120 - 4 -II
ANALYSIS Robinson argues that there was insufficient evidence to support the finding that he was 

### likelyto engage in predatory acts ofsexual violence ifnot confined in asecure facility,as required under RCW 71. 09.020( 18). We disagree. A. STANDARD OF REVIEW 

### We treat sufficiency challenges to SVP civil commitment determinations like sufficiency challenges to criminal convictions. In re Det. ofThorell, 149 Wn.2d 724, 744, 72 P.3d 708 2003). Under the applicable standard of review,we view the evidence in the light most favorable to the State and ask whetherthe evidence so viewed was " sufficient to persuade a fair - minded, rational person that the State has proved beyond a reasonable doubt that [the respondent] is a sexually violent predator." State v. Hoisington, 123 Wn. App. 138, 147, 94 P.3d 318 ( 2004). We defer to the trier offact on determinations ofwitness credibility and evidentiary 

### weight. In re Det.ofSease, 149 Wn.App. 66, 80, 201 P.3d 1078 (2009). B. LEGAL PRINCIPLES Under RCW 71. 09.060, to civilly commit Robinson the State had to prove beyond a reasonable doubt that he was a sexually violent predatorwithin the meaning ofthe commitment

statute. In re Det. ofPost, 170 Wn.2d 302, 309 -10, 241 P. 3d 1234 (2010). RCW 71. 09. 020( 18) defines a "[ s] exually violent predator" as any person who has been convicted ofor charged with a crime ofsexual violence 

### and who suffers from a mental abnormality or personality disorder which makes 

### the person likelyto engage in predatory acts ofsexual violence ifnot confined in a secure facility.

345120 - 4 -II This definition contains three elements that the State was required to prove beyond a reasonable doubt in orderto civilly commit Robinson as an SVP:

1) that the respondent " has been convicted of or charged with a crime of sexual violence," (2) thatthe respondent " suffers from a mental abnormality or personality disorder," 

### and (3) that such abnormality or disorder " makes the person likely to engage in predatory acts ofsexual violence ifnot confined in a secure facility." Post, 170 Wn.2d at 309 -10 (quoting RCW 71. 09.020( 18)).

Robinson does not contest the first two elements, but argues that the State failed to present sufficient evidence supporting the third: that he was " likely to engage in predatory acts ofsexual violence ifnot confined in a secure facility" as required in RCW 71. 09.020( 18). A person is " likely to engage in predatory acts ofsexual violence" within the meaning of 

### RCW 71. 09.020( 18) if " the person more probably than not will engage in such acts ifreleased unconditionally from detention on the sexually violent predator petition." RCW 71. 09. 020(7). The State' s evidence must be sufficient to prove beyond a reasonable doubt that the person to be
committed has " serious difficulty controlling behavior." Thorell, 149 Wn.2d at 744 - 45.1 Butthe evidence " need not rise to the level ofdemonstrating the person is completely unable to control his or her behavior." Id.at 742. C. SUFFICIENCY OF THE EVIDENCE

1. Evidence Regarding Robinson' s Behavior The State presented evidence regarding Robinson' s past and present behavior from which 

### thejury could inferthat Robinson was likelyto engage in future predatory acts ofsexual 

### 1 Ifthe person is nottotally confined atthe time ofthe petition, RCW 71.09.020(9) also requires that the likelihood be evidenced by a recent overt act. This requirement is inapplicable here because Robinson was totally confined. 445120 - 4 -II 

### violence ifnot confined in a secure facility. The evidence, viewed in the light most favorable to the State, showed that Robinson had a history ofpredatory sexual violence and that he was unable to control the other factors that led him to offend. First,the State presented evidence ofRobinson's pastviolent sexual offenses. Thejury 

### heard Robinson's deposition and trial testimony, during which he described the rape forwhich he was convicted and admitted to raping at least 12 women. Thejury also heard testimony from the police officers who investigated and apprehended Robinson. One officer testified that 

### Robinson previously claimed to have raped some 60 women over afive - year period. The same officer said that he found in Robinson' s truck a " rape kit" oftools to subdue unwilling sex partners. Report of Proceedings (RP) at 179. Overall, it was clear from the evidence presented that Robinson had committed numerous uncharged predatory acts ofsexual violence. 

### In assessing whether an individual is a sexually violent predator, prior sexual history is highly probative of his or her propensity for future violence." In re Pers. Restraint ofYoung, 122 Wn.2d 1, 53, 857 P.2d 989 ( 1993). 

### Thejury could reasonably infer from Robinson's 

### established history ofoffenses that he was at ahigh risk ofreoffending ifhe was unable to control the factors that previously led him to offend. Second, the State presented evidence that Robinson had not learned to control the factors 

### that previously led him to offend. Robinson admitted in his deposition that he needs ongoing treatment for sexual deviancy. He stated that he believed it was risky for him to be around women in general, and explained that his support system in the community would be limited to 

### former cell mates and possibly family members. He also admitted that he had notfully complied with the requirements of his treatment program while incarcerated. When cross - examined at 545120 - 4 -II trial, Robinson said that his urges to rape women will "never go away completely" and that while 

### he no longer experienced those urges he could not say how long it had been since he last felt 

### them. From this evidence, thejury could find that Robinson had poor control over his mental illness and the lifestyle factors that led him to violent rape.

2. Dr. Patterson' s Testimony Dr. Patterson testified that he assessed Robinson's risk ofreoffending, using a combined actuarial-clinical approach. First, Dr. Patterson assessed Robinson's static risk factors for 

### reoffending, which do not change overtime, using actuarial instruments based on studies associating those risk factors with reoffending. These actuarial tests predicted somewhere between a 15 percent and a 59 percent likelihood that Robinson would reoffend within 10 years. Dr. Patterson testified that the actuarial results should not be construed as clear percentages of risk. Instead,they should be combined with an analysis ofa person' s score relative to the scores ofother offenders to determine whether that person' s risk is greater or lower than the population 

### risk indicated bythe actuarial test. And Dr. Patterson testified thatthe results generally underestimate a person' s lifetime risk ofreoffending because they are based on studies thatwere limited to specified time periods. Second, Dr. Patterson testified that he also utilized his clinicaljudgment in assessing Robinson. Dr. Patterson explained that he structured his clinical assessment of Robinson' s 

### dynamic risk factors, which can change overtime, using an instrument called the Structured Risk Assessment - Forensic Version (SRA - FV). Among the dynamic risk factors were Robinson's 

### proclivity for sexualized violence, sexual preoccupation, callousness, impulsiveness, resistance to rules, and dysfunctional coping strategies. Dr. Patterson testified thathe used the SRA - FV to 645120 - 4 -II determine the proper reoffending risk indicated by the actuarial tools and also as a measurement 

### ofhis overall clinical assessment ofRobinson's " long - term vulnerabilities for sexual reoffending." RP at 306. Dr. Patterson' s clinical assessment supported his opinion that 

### Robinson's riskwas actually greaterthan that indicated bythe static risk factor actuarial instruments. Based on this analysis, Dr. Patterson testified that in his professional opinion, Robinson 

### was likelyto commit anotherviolent sexual offense ifreleased into the community. He also concluded that continued supervision and treatment would not adequately diminish this likelihood.

3. Robinson' s Arguments Robinson argues the evidence against him was insufficientto supportthejury's verdict 

### that he was an SVP because Dr. Patterson' s testimony does not prove beyond a reasonable doubt that he was likelyto engage in predatory acts ofsexual violence ifnot confined in a secure facility for several reasons.

First, Robinson argues that the actuarial tools Dr. Patterson utilized did not provide 

### sufficient support for Dr. Patterson' s opinion that Robinson was likelyto reoffend. He claims thatthe tools are irrelevant because they can only projectwhether a person will reoffend at some point in the future and therefore do not provide evidence ofthe current risk of reoffending. But Robinson seems to misconstrue the nature ofthe actuarial tests. The tests provide a rough estimate ofthe current risk that a person will reoffend within a certain time period. Robinson

seems to confuse this with the future risk of reoffending at certain time intervals.45120 - 4 -II Moreover, even if Robinson' s characterization ofthe tests was correct, our Supreme Court has held that the State need not prove that a person will offend within any particular time period in orderto establish beyond a reasonable doubtthat the person is likely to engage in 

### predatory acts ofsexual violence ifnot confined in asecure facility. In re Det.ofMeirhofer, No. 89251 -2, 2015 WL 596928, at * 5 ( Wash. Feb. 12, 2015); In re Det. ofMoore, 167 Wn.2d 113, 124, 216 P.3d 1015 ( 2009). Therefore, Dr. Patterson' s testimony about Robinson' s risk of reoffense in the future, based on the actuarial tests, provided substantial evidence supporting the third element ofthe SVP definition.

Second, Robinson argues that the results ofthe actuarial instruments themselves did not 

### support a finding beyond a reasonable doubtthat he was likely to reoffend ifnot confined. Robinson states thatthe actuarial tests as administered by Dr. Patterson predicted somewhere between a 15 percent and a 59 percent likelihood that Robinson would reoffend within 10 years, 

### andthat statistical probability does not constitute proofbeyond a reasonable doubt. Robinson is correctthat a probability ofup to 59 percent would not constitute proof 

### beyond a reasonable doubtthat something will actually occur.. Butthat is different from saying 

### that aprobability ofup to 59 percent cannot showbeyond a reasonable doubtthat something is likely. In fact, a statistical probability over 50 percent indicates that something is likely. As a result,the State must only prove thatthe probability ofthe defendant' s reoffending exceeds 50 percent. In re Det. ofBrooks, 145 Wn.2d 275, 297 - 98, 36 P. 3d 1034 (2001), overruled on other 

### grounds by Thorell, 149 Wn.2d 724. Viewed in the light mostfavorable to the State, a statistical 

### probability ofup to 59 percent supports a beliefbeyond a reasonable doubt that Robinson was likely to reoffend. 845120 - 4 - I1 Third, Robinson asserts that Dr. Patterson' s opinion accorded improper weight to the dynamic risk factors and his own clinical judgment when the standardized actuarial assessment of Robinson's static risk factors seemed to show a fairly low likelihood that Robinson would 

### reoffend. However, experts may resortto their clinicaljudgmentwhen assessing the riskthat a
sexual offender will reoffend. See Meirhofer, 2015 WL 596928, at * 2, * 5; Thorell, 149 Wn.2d at 

### 755 -56. This is often necessary because actuarial tests alone tend to underestimate the risk that an individual will reoffend. Meirhofer, 2015 WL 596928 at * 2 n.4. Dr. Patterson testified that his clinical assessment of Robinson informed his opinion that Robinson was likely to reoffend. He combined this assessment with his use ofthe SRA - FV to assess Robinson' s dynamic risk 

### factors.2 In hisjudgment, Robinson was more likelyto reoffend than the actuarial results alone suggested. When viewed in the light most favorable to the State, Dr. Patterson' s testimony 

### supported thejury's finding that Robinson was likelyto engage in predatory acts ofsexual violence ifnot confined in a secure facility. 

### Fourth, Robinson argues that "Dr. Patterson' stestimony was largely areflection ofhis

view that sexual sadism cannot go into remission." Br. ofAppellant at 19. Dr. Patterson did not 

### testifyto holding any suchview. But regardless ofhis views on that matter, he indicated that in his clinical judgment Robinson remained a sexual sadist based on his assessment of Robinson' s

2 Robinson appears to suggest that Dr. Patterson' s use ofthe SRA - FV for this purpose is a novel 

### and not generally accepted technique in the field offorensic psychology. This argument suggests that Dr. Patterson' s testimony was inadmissible underthe Frye test See, e.g.,State v. Green, 182 Wn.App. 133, 148 - 49, 328 P. 3d 988, review denied, 337 P. 3d 325 ( 2014); see also Frye v. United States, 293 F. 1013 ( D.C. Cir. 1923). But Robinson did not challenge Dr. Patterson' s testimony on Frye grounds at trial and does not argue on appeal thatthe court erred in admitting it.45120 - 4 -II
recent fantasies and past actions. He was cross - examined at length on the topic, and Dr. Looman provided an alternative opinion that Robinson' s sexual sadism was in remission. For purposes of analyzing the sufficiency ofthe evidence, we presume thatthejury credited Dr. Patterson' s opinion over Dr. Looman' s opinion. Regardless ofwhether Dr. Patterson believed sexual sadism 

### could go into remission, Dr. Patterson' s testimony supported a finding that Robinson's sexual sadism was not in remission. 

### Finally, Robinson argues that Dr.Patterson's opinionthat Robinson was likelyto reoffend was based primarily on his diagnosis ofsexual sadism. But as Dr. Patterson made clear 

### during his testimony, he considered a number ofstatic and dynamic riskfactors and assessed the etiology ofRobinson' s mental abnormality, Robinson's lack ofan adequate support system, and 

### Robinson's failure to fully engage in treatment. Robinson dismisses this clinical assessment as a purely arbitrary or speculative" exercise, Br. ofAppellant at 19, but Dr. Patterson based his judgment on his review ofthe case records and his interviews with Robinson. CONCLUSION The State provided evidence regarding Robinson's prior sexual history and his current 

### inability to control the factors that previously led him to offend. Dr. Patterson testified that based on actuarial tools and his clinical assessment, in his professional opinion Robinson was 

### likely to commit anotherviolent sexual offense ifreleased into the community. Viewing the evidence in the light most favorable to the State, we hold that there was sufficient evidence to 

### supportthejury's finding that Robinsonwas likelyto engage in predatory acts ofsexual violence ifnot confined in a secure facility. Accordingly, we reject Robinson's sufficiency ofthe
evidence claim. 1045120 - 4 -II We affirm Robinson' s civil commitment as an SVP. 

### A majority ofthe panel having determined thatthis opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it is so ordered.

We concur:

HANSON, C.J.

LEE, J.

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