Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,                        )
                                            )       No. 63732-1-I
                      Respondent,           )
                                            )       DIVISION ONE
       v.                                   )
                                            ) 
RANDY TOWN,                                 )       UNPUBLISHED OPINION
                                            ) 
                      Appellant.            )       FILED: February 13, 2012

       Spearman, J.  --  Randy Town appeals the jury's finding that he meets the 

definition of sexually violent predator (SVP) under chapter 71.09 RCW, claiming

two evidentiary rulings of the trial court constituted prejudicial error. First, the 

State's expert was permitted, over his objection, to testify about the percentage 

of Washington State referrals she found met SVP criteria (80 percent) compared 

to the percentage referrals she received from all other states (less than 50 

percent). Second, Town was not permitted to present evidence of the SVP 

statute's "recent overt act" (ROA) provision. We hold that his objection to the

expert's testimony did not preserve the issue for appeal; the ROA evidence was 

properly excluded; and even if either ruling was error, Town does not show 

prejudice. We affirm.

                                        FACTS

       Town is, by his own admission, a child molester who has sexually abused  

No. 63732-1-I/2

50 to 75 children ranging from three months to ten years old. His diagnosis of 
pedophilia, non-exclusive, sexually attracted to males is undisputed.1 He 

offended for nearly 25 years until late 1985, when he was detected after 

molesting his three-year-old godson, the son of a friend. He pleaded guilty to 

one count of statutory rape in the first degree and was sentenced to 31 months

of confinement. He was released from confinement in November 1987 and 

discharged from supervision in June 1989. On September 8, 1989, he was 

charged with indecent exposure after he went to Sears to buy a shower curtain, 

saw a 10- to 12-year-old boy playing a video game, and masturbated in the 

aisle. He was ordered to receive sexual deviancy treatment.

       During a treatment evaluation, Town admitted to molesting numerous 

children and infants from when he was 19 until his incarceration for the 1986 
statutory rape.2 His victims were typically children of friends or family members.

In 1990, based on these disclosures, he pleaded guilty to two counts of statutory 

rape in the first degree and received an exceptional sentence of 300 months.

1 "Non-exclusive" means Town is sexually interested in both prepubescent children and adults. 

2 Town testified at length about the acts he committed over a period of years. For example, he 
admitted sucking a three- to four-month-old infant's penis and putting his finger in the baby's 
anus; putting his penis in a nine-month-old baby girl's mouth; and fondling a four-year-old boy's 
penis while playing cards with the boy's family, sucking the boy's penis, and attempting to have 
anal sex with the boy. Town acknowledged that, as a Sunday school teacher at the Christian 
Faith Center, he victimized numerous children, sometimes four or five boys at a time. He 
reported masturbating his pet cat and performing fellatio on his dog and attempting to have anal 
sex with it.

                                           2 

No. 63732-1-I/3

During his confinement, Town had numerous sexual encounters with six to eight 

inmates, two of whom were his cellmates. He admitted to being aware that sex 

with inmates was against the rules.

       In 2005, Town voluntarily signed up for and completed the Sex Offender 

Treatment Program (SOTP) at Twin Rivers. He had been unable to sign up in 

1990 and 1994, due to a lack of available resources. Two months into SOTP, 

Town masturbated multiple times to images of children during a one-week 

period. He acknowledged failing to report these violations when they occurred, 

as required by treatment directives.

       On October 23, 2007, while Town was confined, the State filed a petition 

for civil commitment, alleging he was an SVP under chapter 71.09 RCW. Dr. 

Amy Phenix had evaluated Town and opined in a November 2006 report that he

met the criteria for civil commitment. While awaiting trial, Town entered into 

another sexual deviancy treatment program at the Special Commitment Center 

(SCC). During his participation in this program, Town masturbated to images of 

children on two occasions. Again, he failed to notify his treatment provider and 

counseling group of these violations when they occurred. He also failed to 

comply with a recommendation of his pretrial treatment to maintain an arousal 

log because of a concern that if he kept such a log, the contents would be used 

against him in an SVP trial. Town admitted to having sex with an SCC resident 

during a two-week period, while acknowledging that this violated the rules.

                                           3 

No. 63732-1-I/4

       The SVP trial took place during June 2009, when Town was 55 years old.

The sole issue for the jury was whether Town was an SVP. See RCW 

71.09.060(1). The State had to prove beyond a reasonable doubt:

       (1)  That Randy Town has been convicted of a crime of sexual 
            violence; and
       (2)  That Randy Town suffers from a mental abnormality which 
            causes serious difficulty in controlling his sexually violent 
            behavior; and
       (3)  That this mental abnormality makes Randy Town likely to 
            engage in predatory acts of sexual violence if not confined to a 
            secure facility.

       Town filed several pre-trial motions in limine relevant to this appeal. First, 

he moved to exclude testimony from Phenix, the State's expert, as to the number 

of times she does and does not recommend commitment. This motion was 

granted, but the court cautioned that the door could be opened if Town's counsel 

asked whether Phenix always appears for the State or asks whether the defense 

has ever asked her to do an evaluation. Second, Town moved to prohibit Phenix 

from "vouching" for the prosecutor's filing standards, specifically from testifying
that Washington had a higher filing standard in SVP cases than other states.3 At 

a hearing, the State agreed not to present such evidence, and the trial court 

granted the motion. But further discussion ensued about the State's position that 

       3 This motion arose from Town's concern about Phenix's deposition testimony stating her 
belief that Washington has a higher filing standard in SVP cases than other states. The motion 
argued that such testimony constituted vouching for the State's counsel; was not relevant; and 
constituted inadmissible conformity evidence, implying that Washington has a better history of 
screening civil commitment candidates than other states and that that history reflects on the 
prosecutor's decision to seek commitment in Town's case. 

                                           4 

No. 63732-1-I/5

Phenix should be permitted to testify that she weighed the fact that the case had 

been referred to her for an SVP evaluation in classifying Town's risk. Town 

argued that such testimony amounted to vouching. The court reserved ruling on 

that specific issue.

       In another motion in limine, Town sought to present evidence regarding 

all methods of intervention that were available to the State, including the 

possibility that it could file another SVP petition if he committed an ROA. He 

argued that the ROA issue was "important for [his] internal motivation" and also 

"an important external tool that can be addressed by several witnesses." The 

State objected, citing State v. Harris, 141 Wn. App. 673, 174 P.3d 1171 (2007) 

and In re Det. of Post, 145 Wn. App. 728, 187 P.3d 803 (2008) (Post I), rev'd 

and remanded, 170 Wn.2d 302, 241 P.3d 1234 (2010) (Post II). In those cases, 

this court held that trial courts did not abuse their discretion in excluding 

evidence of the State's ability to file an SVP petition upon the respondents'

commission of an ROA, because those cases did not involve ROAs and the 

possibility of a future ROA filing was hypothetical. Post I, 145 Wn. App. at 753-

54; Harris, 141 Wn. App. at 679-80. The State argued that under RCW 

71.09.060(1), the jury could consider only placement conditions that would 

actually exist if a respondent was unconditionally released, and the ROA 

provision was not an issue because Town was not living in the community when 

the SVP petition was filed. Based on Harris and Post I, the trial court denied 

                                           5 

No. 63732-1-I/6

Town's motion in limine.

       At trial, Town testified about the progress he had made in SOTP, his 

changed attitude toward his victims, and the intervention skills he had learned to 

avoid reoffending. He agreed with the actuarial estimates that his risk of 

reoffending was less than 50 percent but testified it was greater than zero.

Asked why he did not say zero, he said he did not want to become complacent.

Town testified that he had to be diligent and mindful of his risks and 

interventions. He testified it had been approximately one year to one year and a 

half since he had masturbated to the image of a child. His plan, if released, was 

to enter a voluntary community-based treatment program and live at Mercy 

House, which housed sex offenders.

       Phenix and Town's expert witness, Dr. Bryan Abbott, disagreed about 

whether Town was more likely than not to engage in predatory acts of sexual 
violence if not confined.4 In the course of establishing Abbott as an expert, 

4 Phenix testified that the abnormalities she diagnosed caused Town serious difficulty in 
controlling his behavior. She based her opinion on Town's history of offending; inability to control 
his risky behavior; continuing to offend despite negative feelings resulting from his acts; 
admission to police in 1990 and in his SOTP intake that he only stopped when he thought he 
would be caught; statements about the difficulties he experienced trying to maintain control over 
his behavior; and masturbation to televised pictures of children in 2006 while in treatment.
Ultimately, Phenix opined Town was more likely than not to engage in predatory acts of sexual 
violence if not confined to a secured facility. 
Abbott noted that Phenix's opinion was based largely on Town's past offending, without reports of 
current serious difficulty controlling sexually violent behavior. He acknowledged that Town 
continued to suffer from deviant urges or thoughts about prepubescent children, but testified that 
Town was able to control them to a point where he does not engage in acts indicative of serious 
difficulty controlling sexually violent, predatory behavior. Abbott opined that Town did not meet 
the "more likely than not" standard and that, taking into account the local base rates in
Washington as well as his advancing age, Town's risk of reoffending was substantially less than 
50 percent. 

                                           6 

No. 63732-1-I/7

Town's counsel conducted the following direct examination:

       [Town's counsel]: All right. Let's get down to it. How many total of 
       psychological evaluations have you performed?
       [Abbott]: In my career I have performed over 1400 psychological 
       evaluations.
       [Town's counsel]:     On whose [behalf] did you perform those 
       evaluations?
       [Abbott]:   Typically, these evaluations are requested by 
       governmental agencies, such as Child Protective Services, the 
       Probation Department.       I am also on a few panels of court 
       appointed evaluators so that the courts sometimes will appoint me 
       to do evaluations. Then also, I am retained by defense attorneys to 
       conduct psychological evaluations.
       [Town's counsel]: So, let's talk about when you say that you are 
       retained by the defense attorneys to conduct the psychological 
       evaluation. What sort of psychological evaluations have you done 
       for the defense attorneys?
       . . . 
       [Abbott]: For the defense I have typically done a variety of of [sic] 
       evaluations, for instance, to determine whether someone is 
       competent to assist in their defense in their case. . . . 
       . . . 
       [Town's counsel]: Let's go back to the evaluations that were done 
       involving the sex offenders.
       [Abbott]: Yes.
       [Town's counsel]: How many of those some 1400 evaluations that 
       you have done in the past, how many of them involved evaluating 
       the sex offenders I am not talking about SVP cases, but in all 
       cases? 
       [Abbott]: I would estimate in the neighborhood of 75 or 80 percent, 
       involved either adult sex offenders or adolescents              [sic]  sex 
       offenders.
       [Town's counsel]: How many of them were involved in evaluating 
       the sex offenders for civil commitment proceedings?
       [Abbott]: I have probably done close to 80 of those. So, probably 
       that would be some where in the neighborhood of about 70 percent 
       of all of the evaluations that I have done over the years.

Abbott also testified:

       Generally, I do [on] all cases that I initially accept, I will do a 

                                           7 

No. 63732-1-I/8

       document review to look at, are there any issues where I might be 
       helpful in evaluating the client  Probably in about 25 to 30 percent 
       of the cases that I review, I find that I would not disagree with the 
       State evaluator opinion, in those cases there is really no reason for 
       me to move to the full evaluation of the Respondent in those types 
       of situation.

During a break, the State pointed out the foregoing testimony in light of Town's 

motion in limine. The trial court noted that Town's counsel's questions referred to 

the same issue precluded by its order. The court ruled that Town had opened 

the door to previously excluded testimony and Phenix could return to the stand 

to testify about how often she found in favor of defendants. Abbott's testimony 

lasted the remainder of the day.

       The next day, before Abbott resumed testifying, the following colloquy 

took place:

       [Town's counsel]: I understand that Dr. Phenix is going to be called 
       as a rebuttal to Dr. Abbott's testimony, as well as the fact that this 
       Court made a determination that I opened the door. I guess that 
       the State was expect -- wasn't expecting me to open. I want to make 
       sure that Dr. Phenix's testimony is going to be limited to the true 
       rebuttal to Dr. Abbott's testimony, as well as the fact that Dr. 
       Phenix, how much -- how many times that she worked for the 
       defense and how many times did she work for the prosecution, not 
       any other vouching or any other things that I have not opened the 
       door to. I am trying not to rehash her direct testimony once again 
       on this stand. I think that is an agreement by the State.
       [Prosecutor]: I am aware of the rebuttal rules. I think that I am time 
       limited anyway. [Phenix] will be brought in to testify regarding the 
       matters that we believe and the Court has ruled were opened by 
       the door having been opened by the defense. In addition, to 
       specific topics of rebut  --  Dr. Abbott's testimony, it will be extremely 
       limited. I have time constraints.

                                           8 

No. 63732-1-I/9

The attorneys then discussed whether the income of the expert witnesses would 

be an issue that came up in testimony and the court stated that if the issue was 

raised by either side, it would come in for both. The court then advised Town's 

counsel that "if you think something is beyond the scope and [sic] of rebuttal and

[sic] object and I will rule on it."  

       After this exchange, Abbott testified at length. After his testimony, Phenix 

returned to the stand in rebuttal. The following testimony took place:

       [Prosecutor]: Now, you testified earlier that you conducted 300 
       sexually violent predator evaluations since November of 1995?
       [Phenix]: Yes, in various states I have, yes.
       [Prosecutor]: How many of those were Washington sexually violent 
       predator evaluations?
       [Phenix]: 37.
       [Prosecutor]: Now, of the 300 evaluations that you have conducted 
       since 1995, how many sex offenders did you feel met criteria?
       [Town's counsel]: Objection; again, outside of the scope.
       [Court]: Overruled, for the reasons that have put on the record. She 
       may answer. 
       [Phenix]: A little under 50 percent.
       [Prosecutor]: Of the Washington cases that you have evaluated, 
       how many of those would you feel met that criteria?
       [Town's counsel]: Standing objection.
       [Court]: You may have a continuing objection. It is overruled again 
       for the reasons that I put on the record.
       [Phenix]: I found about 80 percent of those cases would be positive 
       and 80 percent I did not recommend  --              I mean, 20 I did not 
       recommend commitment.

Phenix was asked how often she had been retained by or testified on behalf of 

the defense and responded "about 30 percent of my practice in the last few 

years has been for the [SVP respondent]."

                                           9 

No. 63732-1-I/10

       Phenix's testimony was referenced in closing argument when the 

prosecutor stated: 

       Well, consider Dr. Phenix. She has done about 300 evaluation[s].
       She has told you that over all, in about 50 percent of the time, she 
       has found that someone has not met the sexually violent predator 
       criteria.

       In terms of Washington cases that number is higher, about 90 
       percent [sic].5

The jury found Town to meet the SVP criteria beyond a reasonable doubt. This 

appeal follows.

                                    DISCUSSION

       Town assigns error to the trial court's rulings (1) permitting Phenix's 

testimony about the percentage of Washington State referrals she found met 

SVP criteria compared to the percentage of SVP referrals from all other states 

and (2) excluding evidence about the ROA provision. He also claims these 

rulings were cumulative error. We conclude Town's objection to Phenix's rebuttal 

testimony failed to preserve the issue for appeal because it did not apprise the 

trial court of the specific objection claimed on appeal. Moreover, it was not 

prejudicial. We also conclude the trial court did not abuse its discretion in 

excluding the ROA evidence and Town does not show he was prejudiced by 

such exclusion.

5 Phenix's testimony was actually that she recommended civil commitment in about 80 percent 
of her Washington cases.

                                           10 

No. 63732-1-I/11

                                 Standard of Review

       A trial court's ruling on the admissibility of evidence is subject to the 

abuse of discretion standard. State v. Darden, 145 Wn.2d 612, 619, 41 P.3d 

1189 (2002). Abuse of discretion occurs where the trial court's decision is 

manifestly unreasonable, or based on untenable grounds or reasons. State v. 

Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995).

                                 Phenix's Testimony

       Town argues that the trial court erred when it permitted Phenix to testify, 

over his objection, about the percentage of SVP referrals she finds meet the 

criteria for civil commitment in Washington compared to her percentage of SVP 

referrals from all other states. He contends this testimony bolstered the State's 

case because Phenix effectively vouched for the prosecutor's decision to seek

civil commitment, and went beyond proper rebuttal to Abbott's testimony 

because Abbott never distinguished between Washington cases and cases 

generally.

       The State contends that Town's "standing objection," presumably referring 

to his "beyond the scope" objection, was insufficient to preserve the objections 
claimed on appeal.6 We agree. To preserve an evidentiary issue for appellate 

6 The State also contends Phenix's testimony did not amount to vouching for the prosecution's 
filing decisions or violate Town's motion in limine. It points out that her testimony mentioned the 
Department of Corrections, not the prosecutor, and contends there is no actual or apparent 
connection between Phenix and the prestige of the prosecutor's office. It contends that when 
Town made the motion in limine about vouching, he was concerned with Phenix's deposition 
testimony about Washington's rigorous screening and filing standards, but notes the deposition 

                                           11 

No. 63732-1-I/12

review, the specific objection made at trial must be the same basis of a party's 

assignment of error on appeal. State v. Guloy, 104 Wn.2d 412, 422, 705 P.2d 

1182 (1985). Town argues that the testimony was beyond the scope of rebuttal 

and that the objections should have been sustained on that basis. But even if 

Town is correct on this point it is of no help to him. Town's objection failed to 

apprise the trial judge of the specific issue about which he complains on appeal: 

that the testimony was objectionable because it violated the trial court's ruling on 

Town's motion in limine regarding vouching.

       Moreover, even if the issue is properly before us and the testimony was 

admitted in error, Town cannot show he was prejudiced. In SVP appeals, the 

harmless error doctrine applies and reversal is justified only where the 

evidentiary error resulted in prejudice. Post I, 145 Wn. App. at 748. "An error is 

prejudicial if, within reasonable probabilities, had the error not occurred, the 

outcome of the trial would have been materially affected." Id. (quoting State v. 

Neal, 144 Wn.2d at 611) (internal citation and quotation marks omitted).

Improperly admitted evidence is harmless error if the evidence "'is of minor 

significance in reference to the evidence as a whole.'" Post I, 145 Wn. App. at 

748 (quoting Neal, 144 Wn.2d at 611).

       Here, it cannot be said that had Phenix's testimony been excluded, the 

was not entered into evidence and Phenix's testimony did not mention Washington's screening 
process or filing standards. 

                                           12 

No. 63732-1-I/13

outcome of the trial would have been materially different within reasonable 
probabilities.7 It was undisputed that Town had been convicted of a crime of 

sexual violence, had an extensive history of sexual abuse against children, and

suffered from a mental abnormality, pedophilia. The issues were whether his 

pedophilia caused him serious difficulty in controlling his sexually violent 

behavior and whether his pedophilia made him likely to engage in predatory acts 

of sexual violence if he was not confined. The State presented substantial 

evidence that Town had difficulties controlling his sexual impulses. For example, 

he acknowledged having sex with other inmates despite knowing it was against 

the rules. He masturbated to images of children while awaiting trial on the SVP 

petition and did not report these instances to his treatment provider. Town 

himself testified that his likelihood of reoffending was greater than zero. In light 

of this and other evidence, even if the testimony was admitted in error, there is 

no reasonable probability that the outcome of the trial would have been different.

                                    ROA Evidence

       Town next claims that the trial court erred in prohibiting him from 

presenting evidence about the ROA provision. Under RCW 71.09.060, if the 

7 Town contends the State exacerbated the prejudice by making specific reference to the 
evidence in closing argument, citing State v. Susan, 152 Wn. 365, 278 P. 149 (1929) in support. 
App Brief at 21. But the State's reference to Phenix's testimony in closing argument was not 
nearly as prejudicial, nor did it so clearly amount to vouching, as the statement in Susan, where 
the prosecutor said in his opening statement, "[N]ever in the history of the five or six years that I 
have been prosecuting attorney of this county have I ever accused any man or woman of any 
crime or filed an information against them until I was satisfied that they had committed the 
crime." Susan, 152 Wash. at 378.

                                           13 

No. 63732-1-I/14

State files an SVP petition against an individual while that person is living in the 

community after release from custody, the State must prove beyond a 

reasonable doubt that he or she committed an ROA while living in the 

community. An ROA is "any act, threat, or combination thereof that has either 

caused harm of a sexually violent nature or creates a reasonable apprehension 

of such harm in the mind of an objective person who knows of the history and 

mental condition of the person engaging in the act or behaviors." RCW 

71.09.020(12).

       Town was in custody at the time the petition was filed, so there was no 

issue at trial as to whether he committed an ROA. Rather, he wanted to present 

evidence on the ROA provision generally because he claimed it was a method of 

intervention that was available to the State if he were released unconditionally.

The legislature has "provided that respondents in [SVP] proceedings have a 

right to present evidence of proposed voluntary treatment options in order to 

attempt to counter the State's contention that they are likely to reoffend if not 

committed a secure facility." Post I, 145 Wn. App. at 743.

       Town bases his claim on Post II, where the Washington Supreme Court 

noted in dicta that evidence that an SVP respondent who is subsequently 

released could be subject to a future SVP petition upon commission of an ROA 

is relevant to an SVP determination because it is a condition that would exist 
upon the respondent's placement in the community.8 Post II, 170 Wn.2d at 309, 

                                           14 

No. 63732-1-I/15

316. The trial court had excluded the evidence on the ground that it was 

hypothetical and not relevant under RCW 71.09.060, because it was not a 

placement condition that "would exist" for Post. We agreed with the trial court.

But the Post II court disapproved: 

       Post's knowledge of the consequences for engaging in such 
       conduct may well serve as a deterrent to such conduct and,
       therefore, has some tendency to diminish the likelihood of his 
       committing another predatory act of sexual violence.                  This 
       likelihood, of course, is an element that the jury must address. See
       RCW 71.09.020(18). The possibility of a recent overt act petition is 
       therefore relevant to the determination of whether Post is an SVP.

Id. at 316-17. The court emphasized that it was not deciding whether the 

evidence was admissible, but was "merely correct[ing] the Court of Appeals'

misapprehension and hold[ing] that the evidence is relevant and does not violate 

RCW 71.09.060(1)." Id. It noted that ER 403 issues are best addressed in the 

first instance by trial courts, and are subject to review for abuse of discretion.

       Town points out that the trial court excluded the ROA evidence based on 

Harris and Post I. He argues the evidence was relevant and admissible, 

8 The court reversed and remanded on a different basis: its holding that the trial court erred in 
admitting evidence about the treatment at the SCC that would be available to Post if he were 
committed and evidence that Post could later be released to a less restrictive alternative if he 
were committed. The court held that this evidence was not relevant to the jury's determination of 
whether Post was an SVP and also held that the error in admitting this evidence was not 
harmless. Post II, 170 Wn.2d at 314. The court cited the fact that in the first of Post's two 
commitment trials -- at which the State did not introduce evidence about SCC treatment -- the jury 
deadlocked. Post II, 170 Wn.2d at 315. But at the second trial, the evidence was introduced and 
Post was committed. "This is persuasive evidence that the introduction of the evidence may 
have impacted the outcome. Moreover, the evidence of treatment available at the SCC offered 
in the second SVP determination trial was not merely in passing, but was thorough, systematic, 
and repeated." Id.

                                           15 

No. 63732-1-I/16

contending that where Phenix testified that she assigned Town a higher level of 

risk because he was not subject to formal supervision, the jury should have been 

permitted to weigh this testimony against Town's knowledge of the ROA 

provision. He contends it was critical for the jury to understand his own 

assessment of his need to not only avoid overt crimes but also stay within the 

"reasonable apprehension" standard of the ROA provision.

       The State argues that Town's proposed evidence went beyond his 

personal motivations; was collateral and inadmissible under ER 403; and went 

beyond the scope of potential relevance recognized in Post II. The State also 

notes it made clear it did not oppose testimony from Town about his personal 

motivations not to reoffend due to the prospect of an ROA. At the hearing on the 

motion in limine, the trial court asked the prosecutor to respond to Town's 

argument to admit the ROA evidence as it related to his internal controls, and 

the prosecutor responded:

       Personally, I don't quite understand the strategy presenting to the 
       jury, "let him go. If you let him go, he has always has the fear of 
       arrest and the police will be arresting him and facing another jury
       and another SVP trial under recent overt act, or two strikes or three 
       strikes on whatever criminal act that he conducts."

       If they want to make that argument, go ahead. I don't think that any 
       particular juror would be swayed or comforted by that notion. But 
       fear of arrest, I think that maybe that can be argued, because that 
       is a condition that will exist as soon as he is released. 

       Our argument that we certainly never prevented him before the 
       prior 75 [victims] or even following his two sentencings, one 
       sentencings, when he was reassessed on the indecent exposure.

                                           16 

No. 63732-1-I/17

       That is, arguable, is admissible, because it is a condition that will 
       exist upon release, immediate upon release.

The State contends there was no proposed evidence, in the form of an offer of 

proof, that Town was personally motivated to avoid reoffending by the prospect 

of a future ROA filing.

       We conclude, based on our review of the record, that the ROA evidence 

was properly excluded because it was not admissible under ER 403. The Post II

court recognized the potential relevance of ROA evidence insofar as such 

evidence relates to a respondent's likelihood of committing another predatory act 

of sexual violence. Specifically, how such likelihood may be decreased because 

of the respondent's knowledge of the consequences of the ROA provision. The 

Post II court did not discuss a basis for the relevance of ROA evidence beyond 

this. Also, it did not hold that such evidence was admissible in every case, but 

rather that it should not be automatically excluded on the basis of being not 

relevant under RCW 71.09.060.

       Here, the relevance of the ROA evidence, if any, was minimal. Town did 

not make an offer of proof that he was personally motivated to avoid reoffending 

based on his knowledge of the consequences of the ROA provision. No such 

evidence can be found in his deposition or trial testimony. Rather, his motion 

was premised on the argument that the evidence was admissible generally as 

one of the "available methods of intervention" to the State. His motion stated that 

                                           17 

No. 63732-1-I/18

the evidence could come in through several witnesses.

       Under ER 403, even relevant evidence "may be excluded if its probative 

value is substantially outweighed by the danger of unfair prejudice, confusion of 

the issues, or misleading the jury, or by considerations of undue delay, waste of 

time, or needless presentation of cumulative evidence." The probative value of 

the ROA evidence in Town's case, given its minimal relevance, was substantially 

outweighed by the danger of confusion of the issues and misleading the jury.

This is evident given Town's explanation of how he would present the ROA 

evidence. His motion argued that in addition to other interventions available to 

the State to control recidivism, "the jury must also consider the State's 

availability to intervene and incarcerate Mr. Town if he commits a 'recent overt 

act' while in the community." He argued that the State's potential to intervene 

under the ROA provision "is an important tool at reducing risk." The implication 

of Town's motion was that he intended to present evidence of the ROA provision 

as a general tool at the State's disposal, not simply as a factor that reduced his 

personal likelihood to reoffend because of his awareness of the consequences 

of committing an ROA. Presenting the evidence in this manner could have posed

the danger of confusing or misleading the jury by suggesting that Town would be 

monitored in some manner upon release.

       Furthermore, even if it was error to exclude the evidence, Town does not 

show that the outcome of the trial was materially affected, given the other 

                                           18 

No. 63732-1-I/19

evidence. During Town's testimony about the incident in Sears, he was asked 

about his concern over being detected. He testified, "I have always been 

concerned about being detected and tried to shield in some way or another to 

keep from being detected." He was then asked, "Would that include lying about 

what you had done, when you were confronted?" He responded yes. Id. This 

testimony indicated that Town offended despite his fear of being detected, that

the possibility of being caught was not a deterrent to his offending and that he 

would instead be careful to avoid being caught.

       Town also argues cumulative error based on the same two evidentiary 

rulings we have considered. This challenge is not well taken, given our

conclusion that neither ruling was error.

       Affirmed.

WE CONCUR:

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