In Re The Detention Of Everette Burd

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Detention of
EVERETTE BURD,
Appellant.
No. 67826-4-1
DIVISION ONE
UNPUBLISHED OPINION
FILED: July 8, 2013
Grosse, J. — Failure to request a Frye1 hearing on the validity of certain
medical diagnoses precludes a defendant from challenging the validity of those
medical diagnoses on appeal. 	Further, failure to request a Frve hearing ddgs mjtf.;
constitute ineffective assistance of counsel where, as here, the diagnosesr ar£rT;2
i 	----;-"
CO 	'J~^7
accepted within the scientific community and our courts have previously heldjhat? r:;,
Frve hearings are not required for those diagnoses. 	Finding no merit in^he •%
ro
remaining arguments on appeal, we affirm the trial court's order of commitment.
FACTS
In 1989, at age 14, Everette Burd was found guilty of first degree criminal
trespass for entering a 	neighbor's home, 	rummaging 	through 	a 	12-year-old's
underwear drawer, 	handling the undergarments, and masturbating on the bed.
In 1991, Burd sexually assaulted a 26-year-old house guest of a neighbor. 	Burd
forced 	his way in, pushed the 	woman down, 	and 	grabbed 	her crotch. 	The
woman escaped and Burd was adjudicated for first degree burglary, 	indecent
liberties, and criminal trespass. 	Burd was sentenced to 168 weeks. 	Pending his
1 Frve v. United States. 54 App. D.C. 46, 293 F. 1013 (1923).

No. 67826-4-1/2
appeal, Burd was released with conditions and treatment to be provided by Dr.
Charles Lund.
Burd 	violated 	his 	conditions of release, 	including the sexual deviancy
treatment requirements and was placed at Maple Lane School. 	While at Maple
Lane, Burd pinched a staff member on her buttocks and grabbed her arm as she
attempted to escape from him. He was also convicted of fourth degree assault at
the age of 18. 	On August 27, 1996, Burd, then 20 years old, sexually assaulted
a 17-year-old stranger, D.B. 	The victim had entered the bathroom in a church.
While in the stall she noticed a man's shoes, and tried to leave. 	Burd grabbed
her, placed her in a choke hold, and dragged her into another room. 	He ripped
off her shirt and bra, squeezed her breasts, and placed his hands down her
pants, 	uttering profanities. 	D.B.'s shouts were heard 	by another person who
managed to pull Burd off D.B. 	Burd was arrested and pleaded guilty to first
degree attempted rape for which he received a 90-month sentence.
In 	1997, 	Burd 	was 	evaluated 	for 	his 	amenability 	for 	sex 	offender
treatment. 	Burd admitted attacking a teenage boy and trying to rip off his clothes
but denied that it was sexual. 	Throughout his incarceration, he 	had several
sexually related infractions.
The State filed a petition to commit Burd as a sexually violent predator
(SVP). Pending trial, Burd was admitted to the special commitment center in
2006, but refused treatment until 2009. 	When he began treatment he admitted
that he had been masturbating the previous day for three hours nonstop to rape

No. 67826-4-1 / 3
fantasies involving the female staff at the hospital as well as women on the
television.
At the commitment trial, the State presented expert testimony from Dr.
Douglas Tucker, who conducted an assessment of Burd to determine if he met
the 	SVP 	criteria. 	Dr. 	Tucker 	concluded 	that 	Burd's 	mental 	abnormalities
predisposed him to commit sexual acts that endangered the health and safety of
others and that he was likely to engage in predatory acts of sexual violence if not
confined to a secure facility. 	Burd presented the expert testimony of Dr. Fabian
Saleh, who disagreed with Dr. Tucker's diagnoses and questioned the validity of
those diagnoses.
The jury found that Burd met the criteria for an SVP. 	Based on this
finding, the trial court ordered him civilly committed. 	Burd appeals.
ANALYSIS
Burd first contends that his commitment violates his rights to due process
because it is premised on diagnoses that are overbroad, insufficiently precise,
and not accepted by the medical profession. 	Burd also contends he received
ineffective assistance of counsel because his counsel failed to request a Frve
hearing on the diagnoses of paraphilia not otherwise specified (NOS) nonconsent
and antisocial personality disorder.
Under SVP commitment statutes, due process requirements are satisfied
"if a finding of dangerousness is linked to the existence of a mental abnormality
or personality disorder that makes it seriously difficult for the person with the

No. 67826^-1/4
abnormality or disorder to control 	his or her behavior."2 	Burd contends that
paraphilia NOS nonconsent is not recognized by the psychiatric profession and
that the admission of Dr. Tucker's testimony therefore violated his due process
rights.
This court rejected a similar argument in In re Detention of Post,3 noting
that such an argument constituted an improper attempt to sidestep a failure to
challenge the diagnosis by means of a Frve hearing in the trial court:
Post improperly attempts to transform that which should have been
raised as an evidentiary challenge in the trial court into a question
of constitutional 	significance on 	appeal. 	In point 	of fact, 	Post
attempts to sidestep the fact that he did not seek a Frve hearing in
the 	trial 	court, 	and, 	thus, 	has 	not 	preserved 	an 	evidentiary
challenge for review.[4]
In a 	Frve challenge, the trial court determines whether a 	scientific theory or
principle 	"'has 	achieved 	general 	acceptance 	in 	the 	relevant 	scientific
community.'"5 	A party's failure to raise a Frve challenge before the trial court
generally precludes appellate review. 	Because Burd did not raise the 	issues
below, the State did not have an opportunity to respond fully to the challenge he
now asserts for the first time on appeal. 	Burd's expert testimony challenging the
2 In re Pet, of Post. 145 Wn. App. 728, 755, 187 P.3d 803 (2008), affd, 170
Wn.2d 302, 241 	P.3d 1234 (2010) (citing Kansas v. Crane. 534 U.S. 407, 410,
413, 122 S. Ct. 867, 151 L Ed 	2d 856 (2002)).
3 145 Wn. App. 728, 187 P.3d 803 (2008).
4 Post, 145 Wn. App. at 755-756.
5 In re Pers. Restraint of Young. 122 Wn.2d 1, 56, 857 P.2d 989 (1993) (quoting
State v. Martin. 	101 	Wn.2d 713, 719, 684 P.2d 651 	(1984)), 	superseded bv
statute as stated in In re Pet, of Thorell. 149 Wn.2d 724, 746, 72 P.3d 708 (2003)
(Laws of 1995, ch. 216, §9).

No. 67826-4-1 / 5
validity of the paraphilia NOS nonconsent diagnosis therefore goes to the weight
ofthe evidence, not its admissibility.6
Burd's 	challenge 	to 	Dr. 	Tucker's 	diagnosis 	of 	antisocial 	personality
disorder is likewise precluded from being raised on appeal. 	Burd argues that
admitting evidence of this diagnosis violates due process guarantees because it
is too imprecise and broad to differentiate a dangerous sexual offender from the
typical criminal recidivist and, thus, the evidence was not helpful to the trier of
fact 	under 	ER 	702.7 	Again 	because 	Burd 	did 	not 	challenge 	Dr. 	Tucker's
testimony on this basis below, he has waived the issue on appeal.8
Burd alternatively argues that 	his 	counsel's failure 	to 	request a 	Frve
hearing on the medical diagnoses and to object to the admission of the antisocial
personality diagnosis as being 	unhelpful under ER 702 	denied 	him effective
assistance 	of 	counsel. 	To 	establish 	ineffective 	assistance 	of 	counsel, 	a
defendant must demonstrate both (1) that his attorney's representation fell below
an objective standard of reasonableness, and (2) a reasonable probability that,
but for counsel's deficient performance, the result of the proceeding would have
been different.9 	Washington courts have repeatedly upheld commitments based
6 See Post, 145 Wn. App. at 757 n.19; In re Pet, of Berry. 160 Wn. App. 374,
382, 248 P.3d 592, rev, denied. 172 Wn.2d 1005 (2011).
7 ER 702 provides that an expert witness may offer an opinion "[i]f scientific,
technical, or other specialized knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue."
8 See Post. 145 Wn. App. at 756 n.16; see also In re Pet, of Sease. 149 Wn.
App. 66, 201 P.3d 1078 (2009) (civil commitment can be based on a personality
disorder alone when supported by expert testimony).
9 State v. McFarland. 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).

No. 67826-4-1/6
on paraphilia NOS nonconsent or antisocial personality disorder diagnoses under
FrveorER702.10
Burd has not identified any SVP proceedings in which such evidence was
excluded under Frve or ER 702. 	Indeed, any objection under ER 702 would
have been overruled since courts have held that a 	civil commitment can be
based on a personality disorder alone when supported by expert testimony.11 	On
the record here, Burd cannot demonstrate any reasonable likelihood that the trial
court 	would 	have 	excluded 	testimony 	on 	paraphilia 	NOS 	nonconsent 	and
antisocial personality disorder diagnoses under either Frve or ER 702. 	Thus,
Burd cannot demonstrate that his counsel was ineffective or that he suffered any
prejudice.12
Exclusion of Evidence
Burd argues that the trial court erred in excluding portions of his expert's
testimony. 	A trial court has broad discretion in admitting expert evidence and a
party may introduce such evidence only where the expert is properly qualified,
relies on generally accepted theories, and is helpful to the trier of fact.13 	An
expert must have a sufficient factual foundation for his opinion.14 	Conclusory or
speculative expert opinions that lack an adequate foundation are inadmissible.15
10 See Post. 145 Wn. App. at 757 n.18; Young. 122 Wn.2d at 37.
11 Sease. 149 Wn. App. 66.
12 See McFarland, 127 Wn.2d at 334-35; see ajso Berry, 160 Wn. App. at 382.
13 ER 702; Anderson v. Akzo Nobel Coatings. 	Inc.. 172 Wn.2d 590, 602, 260
P.3d 857 (2011).
14 Queen City Farms. Inc. v. Cent. Nat'l Ins. Co. of Omaha. 126 Wn.2d 50, 104,
882 P.2d 703 (1994).
15 Safeco Ins. Co. v. McGrath. 63 Wn. App. 170. 177, 817 P.2d 861 (1991).

No. 67826-4-1/7
On cross-examination, Burd queried Pr. Tucker about a debate entitled
"Stirring the 	PSM-V 	Caldron" 	that 	Pr. 	Tucker 	participated 	in at the 	annual
American Academy of Psychiatry and the Law. 	At the conclusion of the debate,
a symbolic vote was taken in which only two people in the audience voted to
include paraphilic coercive disorder, while 32 people voted against its inclusion.
Pr. 	Tucker characterized the audience 	as people who were 	not necessarily
experts in sexual offenders.
Burd sought to continue this line of questioning with his own expert Pr.
Fabian Saleh, but the State moved to exclude any testimony from 	Pr. 	Saleh
about the informal vote that occurred at the debate. 	The State argued that
because Pr. Saleh was not present, the testimony was hearsay and further there
was no foundation for the reliability of the scientific evidence at the debate. 	In his
offer of proof, Burd asserted that Pr. Saleh was the chair of the sex offender
committee for several years at the American Academy of Psychiatry and the
Law, that he would testify that in order to have a debate, peer reviewed articles
and proposals had to be submitted, and that people vested in the outcome of the
debates, including forensic psychiatrists attended. 	The court ruled that such a
generic debate was not relevant under ER 703 as a basis for admissible expert
testimony, and that 	Pr. Saleh's absence from the debate prevented him from
characterizing the content and participators in the debate because he was not
present. 	Because the testimony was hearsay, irrelevant, and not likely helpful to
the jury, the trial court did not abuse its discretion by excluding it.

No. 67826^-1 / 8
Jury Instruction
Burd argues that the evidence was insufficient to show that he suffered
any mental abnormality or personality disorder and that the court erred in issuing
the following instruction:
[M]ental abnormality and personality disorder are alternative means
to proving [the second element]. 	The jury need not be unanimous
as to whether a 	mental abnormality or personality disorder has
been proved beyond a reasonable doubt so long as each juror finds
that at 	least one 	of these 	alternative 	means 	has 	been 	proved
beyond a reasonable doubt.
Pr. Tucker testified that Burd suffered from four mental abnormalities—paraphilia
NOS 	nonconsent, 	mild 	mental 	retardation, 	fetishism, 	and 	schizoaffective
disorder, 	and 	two 	personality 	disorders—antisocial 	personality 	disorder 	and
borderline personality disorder. 	Burd contends that because the State argued
the combination of these diagnoses predisposed Burd to commit sexual violent
offenses, the State failed to prove that each diagnosis in itself was sufficient to
support a finding of mental abnormality or personality disorder.
But it is not the particular diagnosis that is the alternative means. 	Those
diagnoses 	form 	the 	particular facts 	from 	which a 	jury could determine the
presence of either a mental abnormality and/or a personality disorder. 	It is the
presence 	of a 	mental 	abnormality 	and/or 	personality 	disorder 	that 	are 	two
alternative means of establishing the mental illness element.16 	To do as Burd
argues would create a means within a means unanimity analysis.
16lnrePet.ofHalgren. 156 Wn.2d 795, 811, 132 P.3d 714 (2006).
8

No. 67826^-1 / 9
In re Petention of Sease is instructive.17 	There, the State relied on two
personality disorders to establish the required element of mental abnormality or
personality disorder. 	As here, the parties did not disagree that unanimity rules
apply in 	SVP 	cases.18 	Sease 	argued that because he had two 	personality
disorders, the jury needed to be unanimous on which of the two diagnoses made
him an SVP. 	The court rejected the argument stating:
The 	SVP 	statute 	delineates 	two 	alternatives 	for 	satisfying 	the
State's burden of establishing a mental condition "which makes the
person likely to engage in predatory acts of sexual violence if not
confined 	in a 	secure facility"—mental 	abnormality or 	personality
disorder. 	RCW 	71.09.020(16). 	There 	is 	no 	dispute 	that 	Sease
suffered from one or, possibly, two personality disorders.
As in [In re Personal Restraint ofl Jeffries, [110 Wn.2d 326,
752 P.2d 1338 (1988)] the jury here need only have unanimously
found that the State proved that Sease suffered from a personality
disorder that made it more likely that he would engage in acts of
sexual violence if not confined to a secure facility. The jury need not
have unanimously decided whether Sease suffered from borderline
personality disorder or antisocial personality disorder. 	Therefore,
the trial court did not err in failing to give a unanimity instruction and
it is not an error that Sease can raise for the first time on appeal.1191
"Likely to Reoffend" Standard
Burd next 	challenges the "likely to 	reoffend" 	standard for determining
whether an offender is at risk for reoffense, a part of the SVP determination. 	He
contends that this standard is inconsistent with the clear and convincing evidence
standard that is constitutionally required. 	But as he acknowledges, our state
17 149 Wn. App. 66, 201 P.3d 1078 (2009).
18 In re Pet, of Pouncv. 144 Wn. App. 609, 617, 184 P.3d 651 (2008), affd, 168
Wn.2d 382, 229 P.3d 678 (2010).
19 Sease. 149 Wn. App. at 78-79: see also Halgren. 156 Wn.2d at 811 (unanimity
instruction 	is not 	required 	as to which 	of the two types of mental 	illnesses
specified in the statute underlies a determination that one is an SVP.)

No. 67826-4-1/10
supreme court has already rejected this argument in In re Petention of Brooks.20
The Brooks court stated:
RCW 	71.09.060(1)'s 	demand 	that 	the 	court 	or 	jury 	determine
beyond a reasonable doubt that a defendant is an SVP means that
the trier of fact must have the subjective state of certitude in the
factual conclusion that the defendant more likely than not would
reoffend if not confined in a secure facility. As set out in the statute,
the fact to be determined is not whether the defendant will reoffend,
but whether the probability of the defendant's reoffending exceeds
50 percent. As long as the SVP statute requires the fact finder to
have the subjective belief that it is at least highly probable that the
defendant is likely to reoffend, it meets the standard set forth in Jn
re Pependencv of K.R. Chapter 71.09 RCW meets and exceeds
that standard. 	Brooks' constitutional claims fail.1213
The "likely to reoffend" standard is constitutional.
Prosecutorial Misconduct
Burd argues that the prosecutor committed misconduct during her rebuttal
argument. 	Prosecutorial misconduct requires a showing that the prosecutor's
conduct was both improper and prejudicial in the context of the entire record and
circumstances at trial.22 	A prosecutor may not appeal to the passions of the jury
and 	encourage it to render a verdict based on emotion 	rather than properly
admitted evidence.23 	The prosecutor has wide latitude in making arguments to
the jury and prosecutors are allowed to draw reasonable inferences from the
20 145 Wn.2d 275, 298, 36 P.3d 1034 (2001), overruled on other grounds by
Thorell. 149 Wn.2d 724, 72 P.3d 708 (2003).
21 145Wn.2d at 297-98; see ajso In re Pet, of Mulkins. 157 Wn. App. 400, 407,
237 	P.3d 	342 	(2010) 	(rejecting an 	identical constitutional challenge to RCW
71.09.020).
22 State v. Hughes. 118 Wn. App. 713, 727, 77 P.3d 681 (2003) (citing State v.
Stenson, 132 Wn.2d 668, 718, 940 P.2d 1239 (1997)).
23 State v. Belqarde. 110 Wn.2d 	504, 	507-08, 755 P.2d 174 (1988); State v.
Echevarria. 71 Wn. App. 595, 598, 860 P.2d 420 (1993).
10

No. 67826-4-1/11
evidence in closing arguments.24 	Prejudice is established if there is a substantial
likelihood the misconduct affected the jury's verdict. 	Where no objection is made
to the remarks, the reviewability of the alleged prosecutorial misconduct depends
on 	whether the prosecutor's conduct was so flagrant and ill-intentioned as to
create prejudice that could not be negated by a curative instruction.25
The jury watched a video deposition of Dr. Tucker interviewing Burd.26 	In
rebuttal argument, the prosecutor stressed that Burd was a predator, and did
nothing 	more than 	paraphrase admitted testimony that the jury 	had 	already
heard. 	Because 	the 	prosecutor's 	argument 	directly 	addressed 	Burd's 	own
testimony and was responsive to issues argued by the defense, Burd fails to
show that these remarks were improper.27
Accordingly, we affirm the commitment.
WE CONCUR:
£crX»X
24 State v. Gregory. 158 Wn.2d 758, 860, 147 P.3d 1201 (2006).
25 State v. Warren. 165 Wn.2d 17, 43, 195 P.3d 940 (2008) (quoting State v.
Brown. 132 Wn.2d 529, 561, 940 P.2d 546 (1997)).
26 Exhibit 78B is a CD (compact disc) of a portion of the transcript which was
heard 	by 	the 	jury 	and 	Exhibit 	72 	provided 	by 	the 	State 	is 	an 	accurate
transcription of that CD. Burd argues that the verbatim report of proceedings is
the "official" record, but it is the CD itself that is official and was heard by the jury.
The transcription the State provided to this court accurately reflects the recording
of the CD.
27 Stenson. 132 Wn.2d at 727.
11