Opinion
No. 57779-4-I.
June 23, 2008.
Appeal from a judgment of the Superior Court for Snohomish County, No. 05-2-06706-1, Kenneth L. Cowsert, J., entered February 2, 2006.
Reversed and remanded by unpublished opinion per Becker, J., concurred in by Schindler, C.J., and Appelwick, J.
A jury found petitioner to be a sexually violent predator. The issue on appeal is whether the State's rebuttal argument invited the jury to find a mental abnormality not supported by expert opinion. The only expert opinion that Benton had a specific mental abnormality was the opinion of the State's witness diagnosing him with paraphilia. The State's closing argument improperly suggested the jury was not limited to paraphilia in considering whether Benton had a mental abnormality. We are not confident that the jury would have reached the same verdict in the absence of the improper argument. A new trial is necessary.
Benjamin Benton's history of sexual assaults began early in life. At age 13, Benton touched a six or seven-year-old girl with sexual motivation. At trial he admitted that he would have gone farther but the situation was not isolated enough. Shortly thereafter, Benton exposed himself to the 11-year-old daughter of his father's girlfriend, and also to her brother. At age 14, Benton began molesting the 8-year-old daughter of his mother's boyfriend. Under the guise of a "truth or dare" game, Benton set up an elaborate grooming process. He engaged in sexual activity with this girl, including intercourse, over a six month period. Benton estimates that he molested the girl approximately 40 times. Benton threatened to hurt her father if she disclosed the abuse. Benton pled guilty to rape of a child in the first degree for this conduct and was sentenced to 104 weeks at Maple Lane School.
Benton was released from Maple Lane on June 19, 2001, when he was 16 years old. He moved in with his father, his new stepmother, and her daughter (his new stepsister, now age 13, to whom Benton had previously exposed himself). Approximately eight days after his release, he molested his stepsister's 13-year-old friend while she was over spending the night. Benton fondled this girl's breasts while tickling her for several minutes. Two days later, he came into his stepsister's room during the middle of the night and raped her. He was immediately returned to custody. Benton testified at trial that even before his release from Maple Lane he had been planning to have sex with her. Benton pled guilty to rape of a child in the second degree and received a sentence of 185 weeks of confinement.
Report of Proceedings at 653-54.
Benton was transferred to Naselle Youth Camp in October 2001. While at Naselle, Benton violated the rules by intentionally touching a younger female student's thigh without her consent. This female student testified that Benton had also stuck his hand down the back of her pants.
Benton was set to be released from Naselle on February 23, 2005. An End of Sentence Review Committee considered his case, but did not recommend that Benton be civilly committed as a sexually violent predator. The day before his scheduled release, the State filed a petition alleging that Benton was a sexually violent predator and transferred him to Snohomish County jail.
Clerk's Papers at 120 (Letter from DSHS, Jan. 20, 2005).
The civil commitment trial began in January 2006. By this time, Benton was 20 years old. Benton's trial included over 15 witnesses. Dr. Amy Phenix, a psychologist who specializes in diagnosing sexually violent predators, testified on behalf of the State. The girl Benton had molested when he was 14 testified about the six months in which she was Benton's victim. Dr. Barbara Schwartz testified as an expert on Benton's behalf, and Benton himself took the stand. After two weeks of trial, the jury unanimously concluded that Benton was a sexually violent predator. Benton was committed to the Special Commitment Center on McNeil Island. He appeals.
Clerk's Papers at 11 (Verdict Form, Feb. 2, 2006).
Clerk's Papers at 9 (Order of Commitment, Feb. 2, 2006).
The primary issue in Benton's appeal is whether there was prosecutorial misconduct in argument. He claims the prosecutor improperly invited the jury to make its own diagnosis of "mental abnormality" without regard to the expert testimony on that subject.
The State's petition to commit Benton as a sexually violent predator was based on a diagnosis by Dr. Amy Phenix that he had a specific mental abnormality that caused him to commit sexually violent offenses. The petition alleged that Benton's abnormality is "Paraphilia, Not Otherwise Specified (NOS) (Non-Consenting Prepubescent and Postpubescent Females)." Dr. Phenix and Dr. Schwartz agreed in their testimony that paraphilia is defined as a chronic disorder that has occurred over at least a six-month period that involves intense urges to engage in sexual behaviors with nonhuman objects, or that involves the suffering or humiliation of oneself or one's partner, or that involves sexual arousal to children or other nonconsenting persons. Arousal to female children or other nonconsenting females was the type of paraphilia Dr. Phenix diagnosed in Benton's case.
Clerk's Papers at 128 (Petition, Feb. 22, 2005).
Benton moved pretrial to exclude any suggestion from Dr. Phenix or the State that Benton might be suffering from a mental abnormality or personality disorder other than the one diagnosed by Dr. Phenix. The court granted this motion and Dr. Phenix limited her testimony accordingly. The State assured the court that it would not be arguing that Benton had some other mental abnormality. The State's trial brief also confirmed that it intended to rely solely on Dr. Phenix's diagnosis of paraphilia as the mental abnormality that caused Benton to engage in predatory sexual behavior. Dr. Phenix had also considered a diagnosis of anti-social personality disorder. But her trial testimony did not mention any consideration given to an additional diagnosis.
Clerk's Papers at 90 (Respondent's Trial Brief and Motions in Limine, Jan. 17, 2006).
Report of Proceedings at 29.
Clerk's Papers at 190 (State's Trial Brief, Jan. 19, 2006).
Dr. Phenix testified that Benton suffers from a paraphilia which causes recurrent, intense sexually arousing fantasies, sexual urges, or behaviors involving children or nonconsenting people. She explained that paraphilia limits Benton's ability to understand how his behavior impacts others. She said Benton has not exhibited that he can control his deviant arousal. She testified that even while at Naselle Youth Camp, Benton was having a sexual fantasy about a teacher and "was already in his grooming stage, his offense cycle, and was planning his offense."
Report of Proceedings at 170.
Report of Proceedings at 201.
In formulating her diagnosis, Dr. Phenix reviewed police reports, witness statements, court documents, records from Maple Lane School, records from Naselle Youth Camp, medical records, and previous psychological examinations. In light of the fact that Benton had ceased sex offender treatment in 2005 and would not be under any community supervision if released, Dr. Phenix believed that he was likely to reoffend.
Dr. Schwartz, testifying on behalf of the defense, said that in her opinion Benton did not suffer from paraphilia or any other mental abnormality. In her opinion, Benton was not likely to engage in predatory acts of sexual violence. Dr. Schwartz, who had met with Benton personally as part of her evaluation, diagnosed him with attention deficit hyperactivity disorder and with a past history of substance abuse. According to Dr. Schwartz, those problems standing alone would not predispose a person to commit sex crimes, but they reduce inhibitions so an individual who has deviant sexual urges would be less able to control them.
Report of Proceedings at 449.
Report of Proceedings at 440.
Dr. Schwartz described much of Benton's behavior as being an adolescent experiment in sexuality by a "sexually reactive kid," one who had himself been sexually abused as a child and as a result had his sexuality awakened before he was mature enough to handle it responsibly. She characterized Benton as a socially inept young person who had difficulty connecting with peers and maintaining peer-age relationships. Dr. Schwartz explained that Benton's underdeveloped social skills made it difficult for him to pick up on social cues, such as nonconsent from others. This social awkwardness, she said, could be mistaken for arousal to nonconsent. Dr. Schwartz said she believes the diagnosis of paraphilia is meant to address "a fixated deviant orientation" in adults and was therefore not a proper diagnosis for Benton, given his youth.
Report of Proceedings at 452.
Report of Proceedings at 454.
Benton's attorney argued in closing, inaccurately, that the State had to prove Benton's paraphilia manifested itself both as a sexual interest in children and as an interest in forced sex:
To prove Mr. Benton suffers from a mental abnormality, the State needs to prove to you beyond a reasonable doubt that he suffers from paraphilia NOS, prepubescent, postpubescent females, which means the State needs to prove to you beyond a reasonable doubt that he has this enduring, chronic, life-long sexual interest not only with children, but also to forced non-consensual sex.
Report of Proceedings at 922-23 (emphasis added).
The prosecutor responded to these remarks with the argument Benton now claims was prosecutorial misconduct. To begin with, the prosecutor correctly pointed out that it was sufficient to prove paraphilia with respect to either children or nonconsent. But the prosecutor then seemed to say that the State did not have to prove that Benton had a paraphilia at all:
[PROSECUTOR]: You were asked if Mr. Benton has a mental abnormality that causes a number of things. Dr. Phenix came in and told you, yes, in her opinion, he does have a mental abnormality. She described that mental abnormality as a paraphilia. She uses the DSM; she uses the strict criteria that are within this manual, and she talked about how it all comes into play, what the diagnostic criteria are; and that's the way she described the mental abnormality that he has.
You may choose to find that that's the mental abnormality that he has. You may choose to find that, no, I don't really think — about this non-consent thing, I'm not sure I buy that, but, yeah, I totally believe this thing about the kids. You may find it reversed. You may not like the whole idea of paraphilia at all. You're not asked to make that call. You're not stuck with the DSM.
[DEFENSE]: I'm going to object; it's inappropriate; there's no evidence as to another mental abnormality. The State pled that mental abnormality that we discussed and made representations that they wouldn't suggest otherwise.
THE COURT: Sustained. Proceed.
[PROSECUTOR]: You have to decide if Mr. Benton has a mental abnormality with whatever terms you choose to do that.
[DEFENSE]: I will note my exception to that argument, as well.
THE COURT: Proceed. The point has been made.
Report of Proceedings at 934-35 (emphasis added).
After these remarks, the prosecutor touched upon reasonable doubt one last time, briefly turned to another topic, and then sat down.
Shortly after deliberations began, the jury submitted a question to the court: "Can we only consider the label of `paraphilia' for the `mental abnormality.' If so, may we get a copy of the definition of `paraphilia.'" Defense counsel and the prosecutor met with the trial court to determine how to best respond. Defense counsel argued the question was in "direct response to the State's rebuttal argument suggesting — whether the State meant to or not — suggesting that they could essentially find or make up their own mental abnormality." Defense counsel requested that the court respond to the question by telling the jury that paraphilia NOS (non-consenting prepubescent and postpubescent females) was the only mental abnormality to be considered.
Clerk's Papers at 40 (Inquiry from Jury and Court's Response, Feb. 1, 2006).
Report of Proceedings at 940.
The prosecutor replied that she "did not feel that we were limited to paraphilia, as counsel suggests that the State would be." She explained the intent behind her remarks:
Report of Proceedings at 941.
The concern the State had during the argument portion was that during Mr. Benton's counsel's argument, he seemed to argue that unless the jury found both arousal patterns that resulted in the combined paraphilia that Dr. Phenix testified about, that they then could not find a mental abnormality. The statute does not require that the jury agree on exactly what the mental abnormality is. Half the jury could find that it was the non-consent part that was a problem, half the jury could find that it was the attraction to children that was a problem. There's no unanimity requirement on what the mental abnormality is, just that there is one. So the State, during rebuttal argument, attempted to correct what we felt was a misstatement of the law by counsel. We were not able to complete that argument during rebuttal, but that was where that came from.
Report of Proceedings at 941-42.
The court expressed the opinion that the State's rebuttal argument was potentially misleading, but if the jury kept to the evidence they would understand that paraphilia was the only abnormality to be considered:
In terms of the argument, I think the State's argument could have led the jury to conclude that they could come up with some sort of mental abnormality on their own, which I think would be improper. I think limiting their consideration to the evidence here, quite frankly, only leads to the same conclusion that is alleged in the State's petition, that the mental abnormality could be that paraphilia as diagnosed by Dr. Phenix.
I guess I'm still concerned about the question, because my recollection was it said something about, are we to consider the label paraphilia as, in quotes, mental abnormality. We could sit around and discuss what that means the entire time. But I think a reasonable conclusion and the reason I sustained [defense counsel's] objection was that the State's alleging paraphilia as being the only mental abnormality — and while we may call it paraphilia or attraction to kids or whatever, their petition and their expert made the two so synonymous to me that one is the same as the other.
So at least that's my portion of this record for possible review, if there needs to be one, and the reasoning behind my sustaining the objection.
Report of Proceedings at 943-44.
With the State's concurrence, the court sent back a response to the jury: "You must rely on the court's instructions."
Clerk's Papers at 40 (Inquiry from Jury and Court's Response, Feb. 1, 2006).
Benton contends that the State's remarks misstated the law and improperly encouraged the jury to render a verdict based on facts not in evidence. The State responds that the challenged remarks simply corrected the erroneous argument made by counsel for Benton.
As a general rule, remarks of the prosecutor, including such as would otherwise be improper, are not grounds for reversal where they are invited, provoked, or occasioned by defense counsel and where they are in reply to or retaliation for his acts and statements, " unless such remarks go beyond a pertinent reply and bring before the jury extraneous matters not in the record, or are so prejudicial that an instruction would not cure them." State v. La Porte, 58 Wn.2d 816, 822, 365 P.2d 24 (1961) (emphasis added).
Here, the State's reply went beyond a pertinent response when the prosecutor added, "You have to decide if Mr. Benton has a mental abnormality with whatever terms you choose to do that." This was a misstatement of law because it injected the idea of a diagnosis unsupported by expert testimony.
Report of Proceedings at 935.
Expert testimony is necessary to make a diagnosis of a mental abnormality as defined by the statute. "Mental abnormality" is "a congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to the commission of criminal sexual acts in a degree constituting such person a menace to the health and safety of others." RCW 71.09.020(8). Determining whether a particular person possesses a mental abnormality "is based upon the complicated science of human psychology and is beyond the ken of the average juror." In re Bedker, 134 Wn. App. 775, 779, 146 P.3d 442 (2006). When an essential element in the case is best established by an opinion which is beyond the expertise of a layperson, expert testimony is required. Berger v. Sonneland, 144 Wn.2d 91, 110, 26 P.3d 257 (2001).
The State contends that the prosecutor was reacting to testimony given by Dr. Schwartz about the diagnoses listed in the Diagnostic and Statistical Manual of Mental Disorders (DSM). Dr. Schwartz testified that the diagnosis of paraphilia "not otherwise specified" based on nonconsent of the victim was "controversial" in the psychiatric field. She said attempts to include some forms of rape in the category of paraphilia in the DSM have consistently been rejected. Dr. Schwartz said, notwithstanding the stance of the American Psychiatric Association, she herself did believe that a diagnosis of paraphilia nonconsent is appropriate for a rapist who does not like consensual sex and is aroused sexually only by resistance. "There's been a variety of names proposed, nonconsent, resistant. There's a whole bunch of names that have been proposed to place rape in the category of paraphilia; not all rape, but some kinds of rapes. Like I said, this has been consistently rejected." The State maintains that based on Dr. Schwartz's testimony, the jury could find that the rapes committed by Benton proved he had a mental abnormality even though it was not technically labeled as a paraphilia and even though it was not found in the DSM.
Report of Proceedings at 455.
Report of Proceedings at 455.
Report of Proceedings at 455.
The State may well be correct that the prosecutor had this portion of Dr. Schwartz's testimony in mind and was trying to reflect it in the portion of rebuttal argument that is the subject of our review. In proving a mental abnormality, the State is not limited to disorders included in the DSM. Personal Restraint of Young, 122 Wn.2d 1, 28, 857 P.2d 989 (1993). The fact remains that the record contains no expert opinion that Benton has any mental condition, other than paraphilia, that fits the statutory definition of mental abnormality. Dr. Phenix carefully limited her diagnosis of Benton to paraphilia, as ordered in the pretrial ruling. Dr. Schwartz opined that paraphilia can be an appropriate diagnosis for a rapist in some cases, but not in Benton's case. By suggesting that Benton could be committed as a sexual predator if found to have some mental abnormality other than paraphilia, the prosecutor invited the jury to consider a diagnosis not in evidence.
The State argues that the prosecutor was simply reminding the jury that they could choose not to believe any of the expert testimony, consistent with the instruction that a jury is not bound by an expert's opinion. But the remark, "You have to decide if Mr. Benton has a mental abnormality with whatever terms you choose to do that," is not a reminder about the expert witness instruction. While the jury is not bound to accept an expert opinion, the jury is not free to develop its own terminology to define a mental abnormality. If the jury did not find that Benton had paraphilia, their verdict should have been for Benton.
Instruction 3: "A witness who has special training, education, or experience in a particular science, profession, or calling may be allowed to express an opinion in addition to giving testimony as to facts. You are not bound, however, by such an opinion." Clerk's Papers at 17. See 11 Washington Pattern Jury Instructions: Criminal 6.51, at 147 (2d ed. 1994).
Prosecutorial misconduct may deprive the respondent of a fair trial and only a fair trial is a constitutional trial. State v. Davenport, 100 Wn.2d 757, 762, 675 P.2d 1213 (1984). In Davenport, the defendant was charged with second degree burglary. The State did not present direct evidence proving that the defendant had been inside the burglarized residence and did not request an accomplice liability instruction. Defense counsel argued in closing that there was only evidence that the defendant had received stolen property outside the residence, and that this was insufficient to prove that he was guilty of burglary. In rebuttal, the prosecutor stated "it doesn't make any difference actually who went into the house . . . they are accomplices." Davenport, 100 Wn.2d at 759. The defendant objected, but the court overruled the objection.
After deliberating for about two hours, the jury sent a note to the trial judge requesting a definition of "accomplice" and asking whether the defendant had to physically enter and remove the identified items. Davenport, 100 Wn.2d at 759. The court directed the jury to "rely on the law given in the Court's instructions to the jury." Davenport, 100 Wn.2d at 759. The jury found the defendant guilty.
The Court of Appeals held that while the State's conduct was improper and may have been prejudicial, under the circumstances the error was harmless. The Supreme Court reversed, stating that "the ultimate inquiry is not whether the error was harmless or not harmless but rather did the impropriety violate the petitioner's due process rights to a fair trial." Davenport, 100 Wn.2d at 762. "To determine whether the trial was fair, the court should look to the trial irregularity and determine whether it may have influenced the jury. In doing so, the court should consider whether the irregularity could be cured by instructing the jury to disregard the remark." Davenport, 100 Wn.2d at 762.
The court concluded that the jury's question to the trial court established "not only that during deliberations the jury was considering the prosecutor's improper comment, but also, that the jury considered the statement to be a proper statement of law." Davenport, 100 Wn.2d at 764. Further, the trial court's response could not fairly be called a curative instruction. Because the record established that the jury was influenced and possibly misled by the prosecutor's comment, the court was unable to conclude that the trial was fair.
Another example of prosecutorial misconduct in closing statements is found in State v. Gotcher, 52 Wn. App. 350, 759 P.2d 1216 (1988). Caught inside a residence with a partially open switchblade in his possession, Gotcher was charged with first degree burglary with a deadly weapon enhancement. In rebuttal to Gotcher who argued that he was not armed with a deadly weapon, the State argued in closing that a "switchblade is nothing other than a deadly weapon" and that mere "possession alone" was sufficient to show that Gotcher was armed with a deadly weapon. Gotcher, 52 Wn. App. at 351, 352. Defense counsel objected, but the court overruled the objection and directed the jury to review the instructions if they had any doubts. During deliberations, the jury submitted a question to the court asking whether it was necessary that an item had to be used, attempted to be used, or threatened to be used in order to classify it as a deadly weapon. They also asked if being armed with a deadly weapon was synonymous with being in possession of a deadly weapon. The court stated that it was unable to provide an answer. The jury found Gotcher guilty as charged.
On appeal, this court reversed, concluding that the prosecutor had misstated the law, which does require some manifestation of readiness to use a weapon in order to classify it as a deadly weapon. Relying on Davenport, the court noted that "improper argument does not require reversal unless the error was prejudicial to the defendant." Gotcher, 52 Wn. App. at 355. But the jury's questions to the court showed they had been influenced and confused by the prosecutor's misstatement of the law. The trial court had an opportunity to cure the misstatement and clarify the law when Gotcher objected, but failed to do so. It was not enough to simply refer the jury to the instructions. Since it was unclear whether the jury applied the proper law in finding Gotcher guilty, the court was unable to confidently state that Gotcher received a fair trial. Gotcher, 52 Wn. App. at 357.
Benton contends that application of the principles articulated in Davenport and Gotcher leads to the conclusion that the misstatement of the law in his case similarly requires reversal of the verdict. The State responds with two arguments. Neither is persuasive. The State first attempts to distinguish Davenport and Gotcher by arguing "the State's counsel here did not misstate the law; she corrected a misstatement of the law by Benton's counsel." But the State's counsel went beyond stating that either prong of the paraphilia diagnosis could stand on its own as a mental abnormality. It was a misstatement of the law to tell the jury they could find a mental abnormality "with whatever terms you choose to do that."
Br. of Respondent at 19.
Second, the State attempts to distinguish Davenport and Gotcher by arguing that Benton has failed to show a substantial likelihood that the prosecutor's statements led the jury to convict him based on something other than the evidence. We cannot agree. Although the court sustained Benton's first objection, the court met his objection to the most confusing statement only with the comment, "Proceed. The point has been made." The jury's question indicates that they were considering whether Benton could have a mental abnormality other than paraphilia. The court's advice to reread the instructions did not steer them away from taking that direction. There was evidence that Benton had attention deficit disorder and had been a drug abuser, and Dr. Schwartz testified that both these conditions tend to lower sexual inhibitions. The State's cross-examination of Dr. Schwartz elicited a discussion of the DSM criteria for a diagnosis of pedophilia. Upon being invited to choose other "terms" to decide whether Benton had a mental abnormality, the jury may have thought that Benton's mental, social, and substance abuse problems qualified as mental abnormalities that impaired his ability to control his sexual behavior. Or they may have thought that pedophilia was a better "label" for Benton's condition than paraphilia. Under these circumstances, there is a realistic possibility that the jury found Benton had a mental abnormality without ever deciding whether or not he had paraphilia. Yet that was a central issue for them to decide, and it was a vigorously contested issue as to which the two experts were in direct conflict.
Report of Proceedings at 555-60.
The experts even disagreed about whether paraphilia based on attraction to younger females was an appropriate diagnosis for a juvenile offender. Benton's only sexual crime involving a prepubescent child was his repeated molestation of an 8-year-old girl when he was 14 years old. In the opinion of Dr. Schwartz, this conduct was insufficient to establish that Benton had a fixed orientation to prepubescent girls because there is "plasticity" in the sexuality of a juvenile offender as behavior evolves and the brain develops. Dr. Schwartz also criticized Dr. Phenix's reliance on the Static-99 actuarial instrument to predict Benton's likelihood of reoffense. Dr. Schwartz stated that the percentages in the Static-99 might not be accurate for a person who offended only as a juvenile. While there were a small number of juveniles included in the Static-99 study group, Dr. Schwartz did not believe that this was an adequate sample.
Report of Proceedings at 447.
There is no dispute that Benton committed sexually violent offenses. But to commit an individual indefinitely as a sexual predator, the State must also prove that he has a specific mental abnormality. The diagnosis of paraphilia in this case was complicated and the issues raised by the expert testimony about paraphilia would not have been easy to resolve. The jury's question shows they were likely confused and influenced by the misstatement of the law in the State's closing argument, and as a result they may have decided Benton had a condition that fit the definition of "mental abnormality" without deciding that he had paraphilia. Benton has shown a substantial likelihood that the prosecutor's statements led the jury to convict him based on facts not in evidence.
The arguments presented by the State do not distinguish this case from Davenport and Gotcher. As in those cases, we are unable to conclude with confidence that Benton's trial was fair.
Because this error alone warrants reversal, we need not consider Benton's other claims of error.
Reversed and remanded for a new trial.