Opinion
No. 39480-4-II.
Filed: January 4, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for Lewis County, No. 07-2-00553-4, Richard L. Brosey, J., entered June 1, 2009.
Affirmed by unpublished opinion per Van Deren, J., concurred in by Worswick, A.C.J., and Armstrong, J.
Kevin Troy Dollicker appeals the trial court's order civilly committing him as a sexually violent predator (SVP) under chapter 71.09 RCW. He asks us to reverse the trial court's order of commitment and to order him released. Dollicker argues that (1) substantial evidence did not support the trial court's finding of fact 22 that recited expert testimony about Dollicker's scores on actuarial assessment tools used to measure his likelihood of recidivism and (2) the State did not prove beyond a reasonable doubt that Dollicker would likely engage in predatory acts of sexual violence unless confined to a secure facility. We affirm.
A "[s]exually violent predator" is "any person who has been convicted of or charged with a crime of sexual violence and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in predatory acts of sexual violence if not confined in a secure facility." Former RCW 71.09.020(16) (2006).
FACTS
In 1988, a trial court convicted Dollicker of two counts of first degree incest for sexually assaulting his two younger half brothers. The trial court sentenced Dollicker to 12 months community supervision, 32 hours of community service, and a treatment program for sexual offenders.
Dollicker's date of birth is July 9, 1974.
On July 31, 1990, Dollicker pleaded guilty to one count of indecent liberties with a child under the age of 12 after he sexually abused his younger brother. The trial court sentenced Dollicker to 30 to 40 weeks in juvenile rehabilitation and 12 months community supervision, and required him to register as a sex offender following his release from detention.
In March 1992, Dollicker pleaded guilty to indecent liberties based on an incident that had occurred approximately five years earlier involving an eleven year old girl. The trial court sentenced Dollicker to one year of community supervision.
In 1993, the State charged Dollicker with two counts of first degree child molestation involving a two year old boy and a three year old boy with Down Syndrome. Dollicker pleaded guilty to one count of first degree child molestation and the trial court sentenced him as an adult to 175 months' incarceration and 24 months' community supervision.
On May 7, 2007, before Dollicker's release from the Washington State Department of Corrections (DOC) for his 1993 conviction, the State filed a petition under chapter 71.09 RCW seeking Dollicker's involuntary civil commitment as an SVP. On May 10, the trial court found probable cause supporting the State's petition and ordered Dollicker transferred from the DOC to the Special Commitment Center (SCC) on McNeil Island.
Dollicker waived his right to a jury trial and on May 26, 2009, his trial began before a judge in Lewis County Superior Court. At trial, the State called two witnesses: Lessell Hutchins, PhD, a psychologist who treated sex offenders at the SCC (including Dollicker), and their expert witness Shoba Sreenivasan, PhD, a clinical psychologist who specialized in sex offender assessments. Richard Wollert, PhD, a third psychologist, testified as an expert witness for Dollicker. Dollicker also testified.
Hutchins testified that he began treating Dollicker at the SCC approximately 11 months before trial. At the time of trial, Dollicker had completed the requirements for phase two of the SCC's five phase treatment program. Part of the SCC treatment program included "keeping an arousal fantasy and masturbation log." Report of Proceedings (RP) (May 26, 2009) at 21-22. Dollicker last reported masturbating to a deviant fantasy in January 2009. In a September 2008 meeting with Hutchins, Dollicker indicated that "he[wa]s sometimes aroused by thoughts of his victims." RP (May 26, 2009) at 28. Additionally, Hutchins was concerned that Dollicker previously had "deficient experience in healthy adult relationships . . . and historically ha[d] reported an interest in activities, maybe not shared by the majority of adults." RP (May 26, 2009) at 35. In March 2009, Dollicker reported "having intrusive unwanted thoughts of children approximately every other week." RP (May 26, 2009) at 37. Hutchins testified that "Dollicker seem[ed] to work very hard on his treatment assignments" and wanted to participate in treatment. RP (May 26, 2009) at 38.
Sreenivasan issued an evaluation report on Dollicker in September 2005. Before completing her 86 page report, she interviewed Dollicker and reviewed his criminal history records, treatment records, prison records, police reports, and SCC records. Between September 2005 and Dollicker's trial in 2009, Sreenivasan continued to review relevant reports on his progress, as well as Dollicker's deposition transcript. She testified at trial about whether Dollicer met the statutory SVP requirements.
Sreenivasan opined that Dollicker suffer[ed] from pedophilia and personality disorder not otherwise specified, with avoidant and schizoid traits. She testified that Dollicker was "fixated on sexual behaviors with children; ha[d] enormous amounts of fantasies about children; ha[d] intrusive deviant sexual thoughts about children; [and] these [thoughts] ha[d] been repetitive and ongoing and ha[d] occurred for a period of many years." Sreenivasan believed that Dollicker's personality disorder was one of the reasons why he was "emotionally uncomfortable with adults [and] emotionally identifie[d with] and [was] comfortable with children." RP (May 26, 2009) at 110.
Sreenivasan opined that Dollicker was "likely to commit predatory acts of sexual violence" if not confined to a secure facility. RP (May 26, 2009) at 112. She evaluated Dollicker's risk based on three actuarial instruments: the Static-99, the SORAG, and the MnSOST-R, as well as other tools that experts commonly use to conduct risk assessments, including sexual deviancy variables, behavioral factors, age, and a clinical assessment. Sreenivasan testified that, according to all three actuarial instruments, Dollicker had a high risk of reoffending. She also took into consideration Dollicker's admission that he had sexually molested 53 children and that he had had approximately 1000 sexual contacts with children. Additionally, according to Dollicker, his victims had been relatives, acquaintances, and strangers, both male and female, ranging from age 2 to 11. Dollicker also admitted to sexual behavior with his family's dog.
Sreenivasan explained the differences among the actuarial instruments, stating that "the SORAG incorporates the [penile plethysmograph] data, the Static-99 doesn't. The MnSOST-R incorporates treatment data that you don't really see in the SORAG or the Static-99." RP (May 26, 2009) at 119. The Static-99 "largely measures convictions," but replication studies also measure charges. RP (May 27, 2009) at 10. She testified that they all "have a moderate level of predictive accuracy in terms of sexual recidivism." RP (May 26, 2009) at 119.
Dollicker received a score of 7 on the Static-99, which placed him in the high risk category on this actuarial assessment tool. On the MnSOST-R, Dollicker received a score of 8, indicating, that he had a moderate to high risk of sexually reoffending. According to the SORAG instrument, Dollicker was a category 8, indicating that his recidivism risk was high.
Sreenivasan commended Dollicker "for his candor, and [for] engaging in th[e] incredibly difficult task of trying to change sexual interest, and [for] talking about things that are difficult to talk about" during his treatment at the SCC. RP (May 27, 2009) at 52. But she opined that
[i]n terms of reducing his risk, [her] opinion about — about that [wa]s really the same as what [she] thought in `05 after the [Sex Offender Treatment Provider] treatment that he [had] engaged in. [She] d[id]n't want to take away from . . . Dollicker's hard work at SCC. [She] th[ought] it [wa]s good. But in [her] opinion, at th[at] point, . . . that in itself [ wa] s not enough to reduce his risk below a likely threshold.
RP (May 27, 2009) at 52-53 (emphasis added).
Dollicker's defense expert, Wollert, disagreed with Sreenivasan's opinion that Dollicker suffered from pedophilia and a personality disorder not otherwise specified. Wollert concluded, "using the best instrument available, the one that accounts for the drop in the base rates, the one that accounts for age, . . . Dollicker [wa]s unlikely to recidivate." RP (May 28, 2009) at 50. Dollicker testified at trial that he was experiencing deviant sexual thoughts about children two to three times per week and he was "working on trying to get adult sexual fantasies." RP (May 28, 2009) at 144.
The trial court found that Dollicker satisfied the criteria for an SVP and entered findings of fact, conclusions of law, and an order of commitment.
Dollicker appeals.
ANALYSIS
I. Finding of Fact 22
Dollicker argues that substantial evidence did not support the trial court's finding of fact 22 that states:
. . . Sreenivasan testified that the Respondent's risk level was assessed by using three different actuarial instruments: the Static-99, the SORAG (Sex Offender Risk Appraisal Guide), and the MnSOST-R. The [defe]nd[a]nt's score on the Static-99 was 7, plac[ed]ing him in the highest risk category for sexual recidivism. His score on the SORAG was 30, which is a Category 8, plac[ed] him in the high risk category for violent, including sexually violent, recidivism. His score on the MnSOST-R was an 8, plac[ed] him in the 83rd percentile and the high risk category for recidivism.
Clerk's Papers (CP) at 199. We disagree with Dollicker's argument.
A. Standard of Review
We review a challenge to the trial court's findings of fact under a "[s]ubstantial evidence" standard, defined as "`evidence of sufficient quantity to persuade a fair-minded, rational person of the truth of the declared premise.'" State v. Ford, 110 Wn.2d 827, 837-38, 755 P.2d 806 (1988) (quoting Bering v. Share, 106 Wn.2d 212, 220, 721 P.2d 918 (1986)); State v. Vickers, 148 Wn.2d 91, 116, 59 P.3d 58 (2002). "`The party challenging a finding of fact bears the burden of demonstrating the finding is not supported by substantial evidence.'" Vickers, 148 Wn.2d at 116 (quoting Nordstrom Credit, Inc. v. Dep't of Revenue, 120 Wn.2d 935, 939-40, 845 P.2d 1331 (1993)). When substantial but disputed evidence supports a trial court's findings of fact, we will not disturb the trial court's ruling. Vickers, 148 Wn.2d at 116-17. When reviewing issues of fact about conflicting testimony, witness credibility, and persuasiveness of the evidence, we defer to the trier of fact. State v. Bao Sheng Zhao, 157 Wn.2d 188, 202, 137 P.3d 835 (2006); State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992); see In re Det. of Stout, 159 Wn.2d 357, 382, 150 P.3d 86 (2007).
B. Finding of Fact 22
Dollicker argues that this finding of fact misrepresents the level of risk that Sreenivasan assigned to Dollicker when she discussed the actuarial assessment tools. Specifically, Dollicker states that according to Sreenivasan, the Static-99 test indicated a high risk of reoffense, but not the highest level of risk.
But Sreenivasan testified about all three actuarial instruments and other tools she used to assess Dollicker's risk of recidivism. She stated that Dollicker scored a 7 on the Static-99, which placed him in the high risk category. When she scored the original normative data for the Static-99 actuarial instrument in 2005, a score of 7 translated into a 39% risk of recidivism in 5 years, a 45% risk in 10 years, and a 52% risk in 15 years. She also discussed the fact that the Static-99 did not measure sexual deviant preference or other significant dynamic variables that may increase or reduce risk, and the actuarial assessment is one measure for assessing an offender's risk of recidivism. For example, "if you have had somebody who's had a lot of victims over a lengthy period of time with very minimal detention, Static-99 might — significantly underestimate recidivism." RP (May 27, 2009) at 22. Wollert, also scored Dollicker as a 7 on the Static-99. Wollert referenced exhibit 15, a chart that ranked five year likely recidivism rates, and commented that Dollicker's score on the Static-99 placed him in the highest risk category and a person "[c]an't score any higher." RP (May 29, 2009) at 22.
Viewing all of the evidence and all reasonable inferences in the light most favorable to the State, we hold that substantial evidence supports the trial court's finding that "[t]he [defend[a]nt's score on the Static-99 was 7, placing him in the highest risk category for sexual recidivism." CP at 199; Vickers, 148 Wn.2d at 116.
II. SVP Commitment Requirements
Dollicker next argues that the evidence was insufficient to support the finding that he is an SVP. Again, we disagree.
A. Standard of Review
Although SVP commitment proceedings are civil in nature, the criminal standard of review applies to sufficiency of the evidence challenges to the SVP statute. In re Det. of Thorell, 149 Wn.2d 724, 744, 72 P.3d 708 (2003). The evidence is sufficient if, when viewed in the light most favorable to the State, a rational trier of fact could find each essential element beyond a reasonable doubt. Thorell, 149 Wn.2d at 744-45. We defer "to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence." State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970, abrogated in part on other grounds by Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed.2d 177 (2004).
B. Sufficiency of the Evidence
A court may civilly commit a person to a secure facility if it determines beyond a reasonable doubt that he is an SVP. Former RCW 71.09.060 (2006). An SVP is "any person who has been convicted of or charged with a crime of sexual violence and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in predatory acts of sexual violence if not confined in a secure facility." Former RCW 71.09.020(16) (2006).
Thus, to commit a person as an SVP, the State must prove beyond a reasonable doubt that the individual (1) has been convicted of or charged with a crime of sexual violence; (2) suffers from a mental abnormality or personality disorder; and (3) is more likely than not, because of the disorder, to engage in predatory acts of sexual violence if not committed to a secure treatment facility. Former RCW 71.09.020(16); Thorell, 149 Wn.2d at 742.
Dollicker argues "that the record does not contain substantial evidence that proved beyond a reasonable doubt that he was `likely to engage in predatory acts of sexual violence if not confined in a secure facility'" because (1) Dr. Sreenivasan's testimony "was not based upon a current assessment" of Dollicker, (2) the actuarial tests did not constitute evidence of Dolliker's current risk for reoffense, and (3) the levels of risk predicted by the actuarial instruments ranged from 39% to 83%. Br. of Appellant at 14 (quoting former RCW 71.09.020(16)), 15.
Sreenivasan provided a detailed description of how she assessed Dollicker's risk. She interviewed Dollicker, reviewed his criminal history, treatment, and his records from the SCC and prison. After she completed her report in September 2005, she continued to review new reports and records, and she read Dollicker's deposition transcript. Thus, Dollicker's argument that Sreenivasan's testimony "was not based upon a current assessment" lacks merit. Br. of Appellant at 15.
Additionally, Sreenivasan explained that, in assessing Dollicker's risk of recidivism, she not only used the actuarial instruments but also looked at additional research based descriptors related to a sexual offender's risk of recidivism. She stated that to get a comprehensive picture of Dollicker's risk of reoffending, she looked to "dynamic risk factors" in addition to the actuarial assessments. RP (May 27, 2009) at 23. Sreenivasan based her conclusion that Dollicker was likely to reoffend if not confined to a secure facility on the Static-99, SORAG, and MnSOST-R actuarial assessments, as well as Dollicker's sexual deviancy variables, behavioral factors, age, and other clinical assessments.
The results of the three actuarial tests demonstrated that Dollicker had a high risk of recidivism. The Static-99 and SORAG both placed him in the high risk category and the MnSOST-R scored him as having a moderate to high risk of sexually reoffending. But even if the actuarial assessments had not indicated that Dollicker was at a high risk to reoffend, Sreenivasan based her conclusion on numerous factors and variables. Because Sreenivasan's expert opinion was not exclusively based on the results from the actuarial assessments, Dollicker's argument that the actuarial tests did not constitute evidence of his current risk of reoffending and that the results of the tests demonstrated a percentage risk that did not amount to beyond a reasonable doubt, is unpersuasive.
Sreenivasan concluded that, in her expert opinion, Dollicker had a mental abnormality that made him likely to commit predatory acts of sexual violence if he was not confined to a secure facility. The State presented sufficient evidence for the finder of fact to determine beyond a reasonable doubt that Dollicker met the definition of an SVP.
We affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
WORSWICK, A.C.J. and ARMSTRONG, J., concur.