NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

IN RE: MS2009-000010

No. 1 CA-MH 19-0011 SP

Appeal from the Superior Court in Maricopa County

No. MS2009-000010

The Honorable Jay M. Polk, Judge

AFFIRMED

COUNSEL

Maricopa County Legal Defender’s Office, Phoenix

By Anne H. Phillips

Counsel for Appellant

Arizona Attorney General’s Office, Phoenix

By Aubrey Joy Corcoran

Counsel for Appellee State of Arizona

MEMORANDUM DECISION

Presiding Judge Kenton D. Jones delivered the decision of the Court, in 

which Judge James B. Morse Jr. and Judge Diane M. Johnsen joined.

FILED 12-10-2019
IN RE: MS2009-000010

Decision of the Court

2

J O N E S, Judge:

¶1 Appellant challenges the superior court’s order denying his 

petition for discharge from the Arizona Community Protection and 

Treatment Center (ACPTC) at the Arizona State Hospital (ASH). For the 

following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In 2009, the superior court determined Appellant was a 

sexually violent person (SVP) and ordered him committed to ACPTC.1 See

Ariz. Rev. Stat. (A.R.S.) §§ 36-3701(7)2 (defining SVP as a person who “[h]as 

ever been convicted of . . . a sexually violent offense . . . [and] [h]as a mental 

disorder that makes the person likely to engage in acts of sexual violence”), 

-3707(B) (authorizing the superior court to commit an SVP to a licensed 

facility supervised by ASH). In 2016, Appellant made progress toward his 

treatment goals and was transferred to a less restrictive program within 

ACPTC. See A.R.S. § 36-3710 (directing conditional release to a less 

restrictive alternative if it is in the SVP’s best interest and the public is 

adequately protected). Two years later, Appellant petitioned for absolute 

discharge. See A.R.S. § 36-3714(A) (authorizing discharge from treatment if 

the SVP’s “mental disorder has so changed that the person is not likely to 

engage in acts of sexual violence if discharged”).

¶3 At the December 2018 hearing, Sarah Gallimore, Psy.D.,

testified regarding a December 2017 report she had authored 

recommending Appellant remain at ACPTC. Dr. Gallimore is an Arizonalicensed clinical psychologist whose practice focuses on persons who have 

committed sexually violent offenses. She is familiar with Arizona’s SVP 

statutes and sex-offender treatment programs and has completed 

approximately sixty-five SVP evaluations. When evaluating the needs of 

an SVP, Dr. Gallimore interviews the person, reviews legal and treatment 

records and past diagnoses, and completes various risk-assessment tools to 

determine whether the person is making progress in treatment and whether 

the person continues to pose a danger to the public. After reviewing all the 

information, Dr. Gallimore attributes diagnoses, determines the person’s 

 

1 We view the facts in the light most favorable to upholding the 

superior court’s ruling. In re MH 2008-001188, 221 Ariz. 177, 179, ¶ 14 (App.

2009) (citing In re MH 94-00592, 182 Ariz. 440, 443 (App. 1995)).

2 Absent material changes from the relevant date, we cite the current 

version of rules and statutes.
IN RE: MS2009-000010

Decision of the Court

3

level of risk, and makes a recommendation about the need for continued 

treatment. 

¶4 Based upon Appellant’s self-reports, a review of his history, 

and her prior experience evaluating him for a 2015 report, Dr. Gallimore 

testified that Appellant was diagnosed with antisocial personality disorder 

and exhibitionist disorder immediately before he was found to be an SVP 

and committed to ACPTC in 2009. She then determined Appellant 

continued to experience these disorders, and others, in 2017. The antisocial 

personality disorder, characterized by aggressiveness and a lack of 

empathy, was of particular concern, which, when combined with more 

recently identified narcissistic personality and paraphilic disorders,3 left 

Appellant “at high risk for committing another sexually violent offense.” 

Dr. Gallimore’s evaluation was consistent with three separate actuarial risk 

assessment tools that employ different combinations of static, dynamic,

objective, and subjective factors — the Static-99R, the Static-2002R, and the 

SVR-20 — each of which placed Appellant at a “well above average risk” of 

committing a new sexual offense within five years with a rate of recidivism 

several times greater than the average individual convicted of a sexually 

motivated offense. Accordingly, Dr. Gallimore opined that absolute 

discharge would not be in Appellant’s best interest or adequately protect 

the community. 

¶5 Brian Abbott, Ph.D., testified on Appellant’s behalf, criticizing

Dr. Gallimore’s use, administration, and interpretation of the SVR-20. He 

also pointed out that the version of the SVR-20 Dr. Gallimore administered 

to Appellant was outdated, having been replaced three months before her 

evaluation of Appellant. Dr. Abbott did not personally evaluate Appellant 

but testified, based upon his review of Dr. Gallimore’s report, that the State 

had failed to prove that Appellant’s continued commitment at ACPTC was 

warranted. Dr. Abbott nonetheless agreed that current evidence of 

impulsivity and lack of remorse could demonstrate a person suffered from 

antisocial personality disorder, and that these behaviors, in conjunction 

with paraphilic conditions, could cause someone to have serious difficulty 

controlling sexually violent behavior. 

 

3 Paraphilia is the “expression of the sexual instinct in practices which 

are socially prohibited or unacceptable, or biologically undesirable.” 

Dorland’s Illustrated Medical Dictionary 1135 (25th ed. 1974).
IN RE: MS2009-000010

Decision of the Court

4

¶6 After taking the matter under advisement, the superior court 

denied the petition for discharge. Appellant timely appealed, and we have 

jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and -2101(A)(10)(a).

DISCUSSION

¶7 At a hearing on an SVP’s petition for discharge from 

treatment, “[t]he attorney for the state has the burden of proving beyond a 

reasonable doubt that the petitioner’s mental disorder has not changed and 

that the petitioner remains a danger to others and is likely to engage in acts 

of sexual violence if discharged.” A.R.S. §§ 36-3709(A), (C), -3714(A). Here, 

the superior court found “beyond a reasonable doubt that: (a) [Appellant]’s 

mental disorder has not changed; (b) [Appellant] remains a danger to 

others; and (c) [Appellant] is likely[] to engage in acts of sexual violence if 

he is unconditionally discharged.” Appellant argues the evidence is 

insufficient to sustain these findings in support of continued commitment 

at ACPTC. We disagree.

¶8 We will not set aside the findings supporting an order for 

involuntary civil commitment “unless they are clearly erroneous.” MH 

2008-001188, 221 Ariz. at 179, ¶ 14 (citing MH 94-00592, 182 Ariz. at 443). 

“A finding of fact is not clearly erroneous if substantial evidence supports 

it, even if substantial conflicting evidence exists.” Ramsey v. Ariz. Registrar 

of Contractors, 241 Ariz. 102, 109, ¶ 22 (App. 2016) (quoting Kocher v. Dep’t 

of Revenue of Ariz., 206 Ariz. 480, 482, ¶ 9 (App. 2003)). Substantial evidence 

is such proof that a reasonable person could accept as adequate and 

sufficient to support the facts beyond a reasonable doubt. See State v. 

Coulter, 236 Ariz. 270, 275, ¶ 12 (App. 2014) (quoting State v. Gunches, 225 

Ariz. 22, 25, ¶ 14 (2010)). 

¶9 Appellant argues perceived deficiencies in Dr. Gallimore’s 

analysis render her conclusions invalid. He does not challenge her general 

competency to testify. See generally A.R.S. § 36-3701(2) (defining 

“competent professional” for purposes of Arizona’s SVP statutes); Ariz. R. 

Evid. 702 (governing the general admissibility of expert testimony). 

Therefore, her testimony “should be tested by the adversary process —

competing expert testimony and active cross-examination — rather than 

excluded from [the fact-finder’s] scrutiny for fear that [it] will not grasp its 

complexities or satisfactorily weigh its inadequacies.” State v. Bernstein, 237 

Ariz. 226, 229, ¶ 18 (2015) (quoting State v. Langill, 945 A.2d 1, 11 (N.H. 

2008)); see also State ex rel. Montgomery v. Miller, 234 Ariz. 289, 298, ¶ 20 (App. 

2014) (“[C]ross-examination, presentation of contrary evidence, and careful 

instruction on the burden of proof are the traditional and appropriate 
IN RE: MS2009-000010

Decision of the Court

5

means of attacking shaky but admissible expert evidence.”) (citing Ariz. R. 

Evid. 702, and quoting Heller v. Shaw Indus., Inc., 167 F.3d 146, 152 (3rd Cir. 

1999)). 

¶10 Dr. Gallimore testified at length regarding her experience and 

qualifications to render an opinion, the information she received from 

Appellant over the course of several interviews, and the materials she 

reviewed and tests she administered before reaching her conclusions 

regarding Appellant’s mental health and propensity to reoffend. See supra

¶¶ 3-4. Although Appellant offered contrary testimony from his own 

expert and effectively cross-examined Dr. Gallimore on the details of her 

methodology and analysis, the superior court nonetheless found Dr. 

Gallimore’s opinions sufficiently reliable and compelling to meet the State’s 

burden of proof. See Tyree v. Indus. Comm’n, 159 Ariz. 92, 95 (App. 1988) 

(“We must presume that the judge considered . . . all relevant evidence of 

record.”) (citing Perry v. Indus. Comm’n, 112 Ariz. 397, 398 (1975)). We will 

not reweigh evidence or second-guess credibility determinations on appeal

because “judging the credibility of witnesses and resolving conflicts in 

testimony are uniquely the province of the trial court.” In re David H., 192 

Ariz. 459, 461, ¶ 8 (App. 1998); see also In re General Adjudication of All Rights 

to Use Water in Gila River Sys. & Source, 198 Ariz. 330, 340, ¶ 25 (2000) (citing 

Pouser v. Pouser (Estate of Pouser), 193 Ariz. 574, 579, ¶ 13 (1999)).

¶11 The record contains sufficient evidence upon which the 

superior court could find, beyond a reasonable doubt, that Appellant’s 

continued placement at ACPTC was warranted. We find no error.

CONCLUSION

¶12 The superior court’s order denying Appellant’s petition for 

discharge is affirmed.