In Re The Detention Of: Richard Scott, App. V. State Of Washington, Res.

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON 	„
In the Matter of the Detention of
RICHARD ROY SCOTT.
No. 70692-6-1 jr
O "i
DIVISION ONE 	i "'"1,..
UNPUBLISHED OPINION -jy.
FILED: 	June 9, 2014 CT'
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Leach, J. — Richard Scott appeals the trial court's denial of his CR 60(b)
motion. 	He claims that the 	rejection of the hebephilia diagnosis in the 2013
version of the Diagnostic and Statistical Manual of Mental Disorders1 (DSM-V)
constitutes newly discovered evidence and a change in the law and science.
Scott argues 	that the 	court should 	vacate 	his 	stipulation 	to 	the 	criteria 	for
commitment as 	a 	sexually violent 	predator because the 	parties 	based 	their
stipulation 	upon 	a 	now 	invalid 	diagnosis 	of 	hebephilia 	that 	the 	psychiatric
profession 	no 	longer 	accepts. 	Because 	Scott 	fails 	to 	show 	extraordinary
circumstances entitling him to relief, we affirm.
1 Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental
Disorders (5th ed. 2013).

No. 70692-6-1 / 2
Background
In 1984, Scott was convicted of five counts of indecent liberties, a sexually
violent offense, against victims 7, 8, 10, 12, and 13 years old. 	In 2001, he was
convicted of third degree rape of a child.
On May 19, 2003, the day of Scott's scheduled release from prison, the
State petitioned to commit Scott as a sexually violent predator. 	The court found
probable 	cause to 	support 	this 	petition 	and 	detained 	Scott 	at the Special
Commitment Center pending trial.
Dr. Richard Packard, a clinical and forensic psychologist, evaluated Scott
to determine if he met the criteria for commitment as a sexually violent predator.
Packard reviewed approximately 21,000 pages of records, including discovery
materials from Scott and from the State, records from the Special Commitment
Center, criminal records, prison records, medical and treatment records, previous
psychological evaluations, and legal documents. 	Packard concluded that Scott
met the diagnostic criteria "for two paraphilias": paraphilia, pedophilia—sexual
attraction 	to 	prepubescent 	children—and 	paraphilia 	not 	otherwise 	specified
(NOS) 	(hebephilia)—sexual 	attraction 	to 	pubescent 	children. 	Packard 	also
determined that Scott met the diagnostic criteria for personality disorder NOS
with antisocial, narcissistic, and histrionic features; bipolar I disorder most recent
episode 	unspecified, 	without 	interepisode 	recovery; 	somatization 	disorder;
alcohol abuse, by history in full remission; and malingering. 	Finally, Packard
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No. 70692-6-1 / 3
concluded 	"that Mr. 	Scott is 	more 	likely than 	not 	to 	continue to 	engage 	in
predatory acts of sexual violence if not confined to a secure facility."
Dr. Brian Judd also evaluated Scott. 	He reviewed over 17,997 pages of
discovery from the joint forensic unit, the Special Commitment Center, Scott, and
the 	State. 	He 	also 	reviewed 	criminal 	records, 	prison 	records, 	medical 	and
treatment 	records, 	previous 	psychological 	evaluations, 	and 	legal documents.
Judd 	opined 	that 	Scott 	met 	the 	diagnostic 	criteria for 	pedophilia, sexually
attracted to males, nonexclusive type; alcohol abuse (by history); and personality
disorder NOS with antisocial and narcissistic traits. 	He concluded that Scott
"constitutes a 	high risk for sexually 	violent and 	violent recidivism." 	In their
reports, both experts cited the definition of "paraphilia" stated in the fourth edition
oftheDSM(DSM-IV).2
On November 6, 2007, the first day of Scott's scheduled trial, he stipulated
to meeting the criteria for commitment as a sexually violent predator and that he
had a prior conviction for a sexually violent offense. He also stipulated,
9. 	Respondent 	suffers 	from 	the 	following 	mental
abnormality and/or 	personality 	disorders: 	Paraphilia 	Pedophilia,
Paraphilia 	Not 	Otherwise 	Specified 	(Hebephilia), 	Personality
Disorder, Not Otherwise Specified, with Antisocial, Narcissistic, and
Histrionic Features.
10. 	These 	mental 	abnormalities 	and 	personality
disorders, together or separately, make it seriously difficult for him
to control his behavior such that it makes him more likely than not
to commit further acts of predatory sexual violence if he 	is not
confined in a secure facility.
2 Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental
Disorders: DSM-IV-TR (4th rev. ed. 2000).

No. 70692-6-1/4
The court ordered Scott committed as a sexually violent predator.
On June 5, 2013, Scott filed a "CR 60(b) Motion for Release Order."3 	He
claimed that his stipulation was void because of a "Change in Science." 	Scott
alleged that his stipulation relied upon the then-current version of the DSM, DSM-
IV, 	but that the DSM-V, published in May 2013, "[i]n very strong words they
clearly reject ted [sic] the use of 'NOS.' 	'And Hebaphilia' [sic]. 	And [s]o narrowly
defined 	pedophilia, so that it could not possibly be applied 	to Scott." 	Scott
contended that he "never me[t] the statutory criteria from day one. 	Even the
petition itself has now been proven to have relied on the bogus diagnoses of
pedophilia and 	hebaphilia 	[sic]." 	The 	only evidence that 	Scott 	provided to
support his motion was an article from the magazine Psychology Today.
The trial court denied this motion "[i]n accordance with the holdings of ]n
re [Personal Restraint! of Young, 122 Wn.2d 1, 857 P.2d 989 (1993), and In re
the Detention of Berry, 160 [Wn.] App. 374, 248 P.3d 592 (2011)." 	On its order,
the 	court 	wrote, 	"The 	Respondent 	has 	not 	demonstrated 	that 	legally 	or
psychologically ... his case should be dismissed. 	Even were this Court to take
judicial notice of the DSM V, it is not clear how it affects his commitment, his
stipulation or his underlying conviction."
Scott appeals.
3 Scott's original motion cited no specific subsection of CR 60(b). In his
reply, he cites CR 60(b)(11) as the basis for his motion.

No. 70692-6-1 / 5
Analysis
Scott claims 	that "a 	change 	in the 	law and 	science" 	entitles 	him to
withdraw his stipulation.4 	We review a trial court's denial of a CR 60(b) motion
for manifest abuse of discretion.5 	A trial court abuses its discretion when its
decision 	is 	manifestly 	unreasonable 	or 	made 	on 	untenable 	grounds 	or for
untenable reasons.6 	A court also abuses its discretion if it bases its decision on
an erroneous view of the law.7
Unlike an 	appeal, 	a 	CR 60(b) 	motion does 	not provide 	a 	means for
correcting errors of law in 	an 	underlying 	order.8 	Accordingly, when a party
appeals the trial court's denial of a CR 60(b) motion, we review only the trial
4 For the first time on appeal, Scott argues that the "change in science"
constitutes newly discovered evidence for the purposes of CR 60(b)(3). Because
he did not raise this particular provision below, he cannot raise it now. 	In re
Marriage 	of Wherlev, 	34 	Wn. 	App. 	344, 	348, 	661 	P.2d 	155 	(1983) 	(citing
Cameron v. Downs. 32 Wn. App. 875, 882, 650 P.2d 260 (1982)). 	Even if we
considered this argument, 	a party must bring a CR 60(b)(3) motion within a
reasonable time and within one year of entry of the judgment. CR 60(b); see
Luckett v. Boeing Co., 98 Wn. App. 307, 310, 989 P.2d 1144 (1999). 	Because
Scott failed to file his motion within one year of the entry of the judgment, he
cannot seek relief under CR 60(b)(3).
5 Halev v. Highland, 142 Wn.2d 135, 156, 12 P.3d 119 (2000) (citing ]n_re
Guardianship of Adamec. 100 Wn.2d 166, 173, 667 P.2d 1085 (1983)); In re Pet.
of Mitchell. 160 Wn. App. 669, 675, 249 P.3d 662 (2011) (citing Highland, 142
Wn.2dat156).
6 Maver v. Sto Indus., Inc., 	156 Wn.2d 677, 684, 132 P.3d 115 (2006)
(citing Associated Mortg. Investors v. G.P. Kent Constr. Co., 15 Wn. App. 223,
229, 548 P.2d 558 (1976)).
7 Maver, 156 Wn.2d at 684 (citing State v. Rohrich, 149 Wn.2d 647, 654,
71 P.3d 638 (2003)).
s Burlinoame v. Consol. Mines & Smelting Co., 106 Wn.2d 328, 336, 722
P.2d 67 (1986) 	(citing State v. 	Keller, 	32 Wn. 	App. 	135, 140, 647 P.2d 35
(1982)).

No. 70692-6-1 / 6
court's decision to deny the motion, not the underlying order that the party seeks
to vacate.9
CR 	60(b) 	allows 	a 	trial court to vacate a 	final judgment or order for
specified 	reasons 	such 	as 	mistake, 	inadvertence, 	excusable 	neglect, 	newly
discovered evidence, and fraud. 	Scott based his motion on CR 60(b)(11), which
authorizes a trial court to vacate an order for "[a]ny other reason justifying relief
from the operation of the judgment." 	This court will vacate an order under CR
60(b)(11) only if the case involves extraordinary circumstances that "constitute
irregularities extraneous to the proceeding."10 	A defendant can move to vacate
an order under CR 60(b)(11) only when his circumstances do not permit him to
move under another subsection of CR 60(b).11
Chapter 71.09 RCW authorizes the involuntarily commitment of a sexually
violent predator.12 	A sexually 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."13
A "mental abnormality" 	is "a congenital 	or acquired 	condition affecting the
emotional or volitional capacity which predisposes the person to the commission
9 Biurstrom v. Campbell. 27 Wn. App. 449, 450-51, 618 P.2d 533 (1980).
10 In re Pet, of Ward, 125 Wn. App. 374, 379, 104 P.3d 751 (2005) (citing
In re Marriage of Knies, 96 Wn. App. 243, 248, 979 P.2d 482 (1999)).
11 Ward, 125 Wn. App. at 379 (citing In re Marriage of Thurston. 92 Wn.
App. 494, 499, 963 P.2d 947 (1998); Shum v. Dep't of Labor & Indus., 63 Wn.
App. 405, 408, 819 P.2d 399 (1991)).
12 Ward, 125 Wn. App. at 376 (citing RCW 71.09.010).
13 Former RCW 71.09.020(16) (2006).

No. 70692-6-1 / 7
of criminal sexual acts in a degree constituting such person a menace to the
health and safety of others."14
Scott alleges,
The hebephelia diagnosis was not explicitly included in the
fourth edition of the American Psychiatric Association's Diagnostic
and Statistical Manual of Mental Disorders (DSM). 	Since 2007, the
diagnostic validity of hebephilia (and, paraphilia NOS (hebephilia))
has been subject to significant debate. 	Hebephelia was considered
but rejected for inclusion in the 2013 DSM-V.
Within weeks of the DSM-V release, Mr. Scott moved pro se
under Civil 	Rule 60(b) for relief from the 	indefinite commitment
order. 	Mr. Scott argued that his stipulation and the State's petition
were based on the then-current version of the DSM, the DSM-IV,
but that the just-released DSM-V constitutes a significant change in
the law and demonstrates the invalidity of his initial commitment.
Scott contends, "At the time of the stipulation, the hebephelia diagnosis relied
upon 	unforeseen vagueness 	in 	the then-current 	DSM-IV that had not been
subject to debate or peer review because it was an unanticipated use ofthe DSM
diagnostic categories."
Scott relies upon In re Detention of Ward.15 in which the court stated, "In
rare circumstances, a change in the law may create extraordinary circumstances,
satisfying CR 60(b)(11)." 	But Scott fails to demonstrate a change in the law
since his stipulation that would affect his stipulation or his commitment.
14 RCW 71.09.020(8). 	The version of RCW 71.09.020 in effect at the time
of Scott's commitment did not define "personality disorder."
15 125 Wn. App. 374, 380, 104 P.3d 751 (2005).

No. 70692-6-1 / 8
In Kansas v. Crane.16 the 	United States Supreme Court explained that
states have considerable leeway in defining the personality disorders and mental
abnormalities that make an individual eligible for commitment. 	The Court stated,
"[T]he science of psychiatry, which informs but does not control ultimate legal
determinations, is an ever-advancing science, whose distinctions do not seek
precisely to mirror those of the law."17
In Young, our Supreme Court rejected the argument that a diagnosis of
paraphilia NOS (nonconsent) was invalid because it did not appear in the then-
current edition of the DSM:
"In using the concept of 'mental abnormality' the legislature
has invoked a more generalized terminology that can cover a much
larger variety of disorders. 	Some, such as the paraphilias, are
covered 	in 	the 	DSM-III-R; 	others 	are 	not. 	The 	fact 	that
pathologically driven 	rape, 	for 	example, 	is 	not yet 	listed 	in the
DSM-III-R does not invalidate such a diagnosis. 	The DSM is, after
all, an evolving 	and 	imperfect document. 	Nor is it sacrosanct.
Furthermore, 	it 	is 	in 	some 	areas 	a 	political 	document 	whose
diagnoses are based, in some cases, on what American Psychiatric
Association ('APA') leaders consider to be practical realities. 	What
is 	critical for our purposes is 	that psychiatric and 	psychological
clinicians who testify in good faith as to mental abnormality are able
to identify sexual pathologies that are as real and meaningful as
other pathologies already listed in the DSM."[18]
16 534 U.S. 407, 413, 122 S. Ct. 867, 151 L. Ed. 2d 856 (2002) (citing
Kansas v. Hendricks, 521 U.S. 346, 359, 117 S. Ct. 2072, 138 L. Ed. 2d 501
(1997); Hendricks, 521 U.S. at 374-75 (Breyer, J., dissenting)).
17 Crane. 534 U.S. at 413 (citing Hendricks. 521 U.S. at 359).
18 	Young. 	122 	Wn.2d 	at 	28 	(quoting 	Alexander 	D. 	Brooks, 	The
Constitutionality and Morality of Civilly Committing Violent Sexual Predators. 15
U. Puget Sound L. Rev. 709, 733 (1992)).
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No. 70692-6-1 / 9
We reiterated this holding in Berry.19 	Thus, inclusion in the DSM is not definitive
for diagnosing a mental illness for the purposes of commitment, and the DSM is
not Washington law. 	Because Scott fails to show a change in Washington law
since he stipulated to the criteria for commitment as a sexually violent predator,
his argument fails.
Even 	if we 	accept 	Scott's 	assertion 	that 	the 	"diagnostic 	validity 	of
hebephilia" has changed since his stipulation, he cites no authority establishing
that this change in science creates "extraordinary circumstances" entitling him to
withdraw his stipulation. 	He presents no facts showing that he no longer poses a
risk to others if not confined in a secure facility or that his condition has changed
such that he no longer meets the criteria for confinement.
Scott stipulated that 	he 	suffered from 	paraphilia 	pedophilia, 	paraphilia
NOS (hebephilia), 	personality disorder 	NOS with 	antisocial, 	narcissistic, 	and
histrionic features. 	He stipulated that these diagnoses "together or separately"
were sufficient to 	meet the criteria 	for a 	sexually violent 	predator. 	Even 	if
hebephilia were an invalid diagnosis, Washington courts have recognized the
other diagnoses to which he stipulated as a sufficient basis for commitment as a
sexually violent predator.20
19 Berry. 160 Wn. App. at 380-81.
20 See In re Pet, of Morgan, No. 86234-6, 2014 WL 1847790 (Wash. May
8, 2014) (involuntary commitment where defendant met diagnostic criteria for
paraphilia, pedophilia, and antisocial personality disorder); State v. McCuistion,
174 	Wn.2d 	369, 	275 	P.3d 	1092 	(2012) 	(involuntary 	commitment 	where
defendant met diagnostic criteria for paraphilia NOS, pedophilia, and antisocial
personality disorder), cert, denied. 133 S. Ct. 1460 (2013).
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No. 70692-6-1/10
In Scott's reply to the State's opposition to his CR 60(b) motion, he also
asserted that he stipulated under "the mistaken belief that the diagnoses given to
Scott were valid and would meet the requirements of Frve v. United States. 293
F. 1013, 34 A.L.R. 145 (P.C. Cir. 1923)." 	Because he raised this argument for
the first time in his reply and he does not argue it in his brief, we do not review
it.21 	Even if we were to consider this challenge, we held in Berry that testimony
from a psychologist or a psychiatrist about a sex offender's mental illness or
abnormality is not subject to Frve.22
Conclusion
Because Scott fails 	to demonstrate a 	change in Washington law or a
change in science creating extraordinary circumstances entitling him to withdraw
his stipulation to the criteria for commitment as a sexually violent predator, the
trial court did not abuse its discretion when it dismissed his CR 60(b) motion. We
affirm.
WE CONCUR:
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7
21 	Cowiche Canyon Conservancy v. Boslev, 	118 Wn.2d 801, 809, 828
P.2d 549 (1992); Jov v. Pep't of Labor & Indus.. 170 Wn. App. 614, 629, 285
P.3d 187 (2012) (quoting West v. Thurston County. 168 Wn. App. 162, 187, 275
P.3d 1200 (2012)), review denied. 176 Wn.2d 1021 (2013).
22 Berry. 160 Wn. App. at 379-80.
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