No. 53204-9-IThe Court of Appeals of Washington, Division One.
Filed: January 10, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 00-2-19526-5. Judgment or order under review. Date filed: 09/19/2003. Judge signing: Hon. Robert H Alsdorf.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Oliver Ross Davis, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Jason Brett Saunders, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Counsel for Respondent(s), Joe John Andrew Solseng, Attorney at Law, King Co Prosc Atty #w554, 516 3rd Ave, Seattle, WA 98104-2385.
KENNEDY, J.
Where a person remains incarcerated for a sexually violent crime at the time a Sexually Violent Predator (SVP) petition is filed, proof to the jury of a recent overt act is not required, even if the person has remained incarcerated for the past 20 years. Further, because all the expert witnesses at trial testified that Sean Duffy suffered both from a paraphilia that caused him to become sexually aroused by rape fantasies and from an anti-social personality disorder, and the jury heard evidence that these disorders were directly linked to Duffy’s ability to control his sexually violent behavior such that he had serious difficulty in controlling that behavior, the evidence was sufficient to permit the jury to find that Duffy was a SVP. Finally, because no unanimity instruction is required as to which of the two types of mental illnesses specified in RCW 71.09.020(16) underlies a determination that one is a SVP, Duffy’s due process rights were not violated by the lack of such an instruction. Accordingly, we affirm the judgment and commitment.
FACTS
In 1980, Sean Duffy was convicted of first degree burglary and first degree rape and was sentenced to 20 years of confinement. The sentence was suspended and Duffy was enrolled in the Western State Hospital Sexual Psychopath Program in 1981. But in 1983 Duffy asked to be withdrawn from that program. His request was granted, his suspended sentence was revoked, and he was sent to the Department of Corrections to serve his sentence.
In 1989, Duffy was transferred to Twin Rivers Correction Center from the Indian River Correctional Center, where he had been openly masturbating when female officers were counting inmates. In 1993, he repeatedly exposed himself and rubbed himself to erection in front of a female nurse.
In 1998, Duffy agreed to participate in the Sex Offender Treatment Program at Twin Rivers, and he began treatment in 1999. He participated in treatment for 10 months.
Two days before Duffy’s scheduled release date for the 1980 convictions, the State of Washington filed a petition alleging that Duffy was a Sexually Violent Predator (SVP) pursuant to RCW 71.09 et seq. The SVP petition and certification for probable cause detailed Duffy’s history of criminal behavior.
Duffy molested two young girls and raped an elderly woman when he was 14 years old. He had a history of peeping at women through windows while he was masturbating, and of entering into women’s homes and stealing things, resulting in burglary arrests or convictions. In 1976, when Duffy was an adult, he was given a deferred sentence on two counts of second degree burglary; he then committed another burglary and was caught in possession of a controlled substance while on probation. Duffy was given a year in jail, but the sentence was suspended on the condition that he attend a school for the deaf in Indiana. He was suspended from the school within a few weeks, and returned to Washington in January of 1978.
In February 1978, Duffy was arrested for the attempted rape of A.S. in her home after he entered the home through an unlocked bedroom window. No charges were filed; instead, Duffy’s suspended sentence for his previous burglary convictions was revoked, and he was sent to prison. Duffy was paroled in 1980, and on June 14, 1980, he forced his way into an elderly woman’s home and raped her. On July 12, 1980, he forced his way into another woman’s home and attempted to rape her. Duffy was convicted of first degree burglary and first degree rape, and was sentenced to 20 years confinement in 1980. These were the convictions for which he was serving time when the SVP petition was filed.
At the probable cause hearing, the State provided evidence of Duffy’s prior criminal history. The State presented the report of Dr. Dennis Doren, a psychologist and expert in the field of sexual deviancy treatment and risk prediction. Dr. Doren reviewed Duffy’s criminal and treatment records and conducted an in-person evaluation with the assistance of an interpreter for the deaf. Dr. Doren used several risk assessment scales and a psychological test to evaluate Duffy. Dr. Doren determined that Duffy was suffering from various mental abnormalities, including Paraphilia, Not Otherwise Specified; Voyeurism; Exhibitionism; Alcohol Dependence without physiological dependence in a controlled environment; Cannabis Abuse; and Antisocial Personality Disorder. Dr. Doren described the disorder of Paraphilia, Not Otherwise Specified as a mental abnormality in which `the person experiences recurrent and intense fantasies, urges, and/or behavior involving sexual arousal to certain inappropriate stimuli.’ Clerk’s Papers at 27. In Duffy’s case, the fantasies relate to nonconsensual sexual contact in other words, rape.
Dr. Doren opined that the paraphilia disorder predisposed Duffy toward committing a sexually violent act as defined by RCW 71.09
et seq.[1] Dr. Doren also said that Duffy’s voyeurism and antisocial personality disorder, which involve `the disregard for and violation of the rights of others’ also predispose Duffy to engage in acts of sexual violence as defined by RCW 71.09 et seq. Clerk’s Papers at 27-28. Dr. Doren asserted that Duffy’s repetitive sexual offending was an integral part of Duffy’s maladaptive pattern of antisocial behavior. Dr. Doren concluded that each of Duffy’s mental abnormalities, including the paraphilia and antisocial personality disorder, `is a congenital or acquired condition affecting his emotional or volitional capacity which predisposes him to commit criminal sexual acts.’ Clerk’s Papers at 35.
In determining Duffy’s potential for sexual re-offending, Dr. Doren also considered Duffy’s risk factors as estimated by various screening tools, and the effectiveness of Duffy’s treatment. The screening tools indicated a high probability of Duffy’s re-conviction for a sexual offense post-incarceration.[2] Dr. Doren also noted that Duffy’s treatment at Western State Hospital was very slow and ultimately not completed, and that during drug and sexual offender treatment at Twin Rivers, Duffy continued to have drug and sexually-related infractions. Dr. Doren stated that although Duffy could engage in ongoing sex offender and substance abuse treatment in the community if not civilly committed, he believed that such treatment would not lower Duffy’s risk in any significant way. Dr. Doren concluded that three of Duffy’s psychiatric conditions qualified as mental abnormalities or personality disorders as defined by RCW 71.09 et seq. and that these conditions made Duffy more likely than not to engage in predatory acts of sexual violence if not confined in a secure facility.
After viewing all the evidence at the probable cause hearing, the trial court ruled that the State had proven by a preponderance of the evidence that probable cause existed to believe Duffy was a SVP as defined by RCW 71.09.020(1), and ordered him detained to the Special Commitment Center (SCC) pending trial.
At trial, the jury heard evidence of Duffy’s past criminal and sexual history as outlined above, together with Duffy’s 2001 deposition, in which he admitted to committing six attempted rapes and two rapes since 1977. The State presented Dr. Doren’s testimony as above described, together with testimony from other expert witnesses regarding Duffy’s mental and psychological abnormalities. Dr. Doren emphasized that Duffy’s paraphilia disorder caused him to become sexually aroused on the basis of non-consenting sexual interaction. Dr. Doren testified that Duffy could be distinguished from many sex offenders who do not suffer from any paraphilias. Dr. Doren stressed that because of his mental and psychological disorders, specifically his paraphilia disorder, Duffy was predisposed to commit sexually violent acts. Dr. Doren also explained the results of the various predictive tests that he performed, as we have outlined above.
Dr. Brian Judd, a psychologist, an expert on SVP commitment, and a consultant for the Special Commitment Center where Duffy was incarcerated at the time of trial, also testified for the State. Dr. Judd testified that he had met with Duffy and reviewed his files. Dr. Judd stated that Duffy suffered from several mental disorders and a personality disorder, including the paraphilia involving rape fantasies. Dr. Judd testified that, in his opinion, Duffy had a mental abnormality or personality disorder that made him more likely than not to engage in future acts of predatory sexual violence.
Duffy’s expert, Howard Barbaree, Ph.D., a psychologist and the head of the Law and Mental Health Program in the Department of Psychiatry at the University of Toronto, testified that he reviewed Duffy’s files, performed actuarial assessments on Duffy, and interviewed Duffy. He also reviewed various depositions taken for the commitment case. Dr. Barbaree agreed that Duffy did have the paraphilia disorder previously described, and an antisocial personality disorder, but noted that all of the experts seemed to agree that Duffy’s personality disorder did not rise to the level of psychopathy. He then criticized Dr. Doren’s technique of assessing a patient’s risk of reoffense, asserting that adding various risk factors to the actuarial studies would allow multiple risk factors to be overvalued.
Using the same models as Dr. Doren, Dr. Barbaree examined the results to determine whether Duffy had `a risk for future sexual violence more likely than not 51 percent or greater.’ Dr. Barbaree reached statistical results similar to Dr. Doren’s, but nonetheless testified that Dr. Doren had improperly used the tests and reached an inaccurate result.[3] Report of Proceedings 12/11/01 at 50-55. Further, despite his own calculations that Duffy’s risk of re-offense over a long period of time was higher than the 51 percent Dr. Barbaree believed was necessary to deem a person a SVP, he testified that Duffy’s age should be calculated into his risk of re-offense because various studies showed that a man’s sexual response gradually decreases as he ages. After recalculating the predictive models to take this factor into consideration, and the additional factor that Duffy had participated in treatment, Dr. Barbaree concluded that Duffy more likely than not was not at risk for re-offense.
One of Duffy’s victims and several of Duffy’s treatment providers also testified. L.M. testified she was assaulted by Duffy in 1980. Duffy kicked in the door of her Seattle house, grabbed her by the throat, started ripping off her clothes, and blacked her eye. Duffy later admitted that his intention in breaking into L.M.’s home was to commit rape.
Francis Linder, a sex offender treatment specialist at Twin Rivers, testified that Duffy had applied for the sex offender treatment program before 1999, but had been turned down due to lack of translators for the deaf. Linder also testified that during her first meetings with Duffy, she was not provided an interpreter; Duffy’s pursuit of adequate interpreters was one of the factors that convinced her he was appropriate to enter the treatment program at Twin Rivers. She stated that Duffy was initially resistant and `bored,’ but that by the end of the program he was `somewhat able to identify his risk behaviors’ and admitted to other offenses besides those cataloged by the DOC. However, Linder described Duffy as being unable to describe his own past patterns of offending for purposes of identifying relapse behaviors. Linder stated that after the treatment program was completed, Duffy stated that he felt he had not benefited from the program.
Kirk Snow, a supervisor of the forensic therapists at the Special Commitment Center where Duffy was confined during trial, testified that Duffy’s progress ranking was high and that Duffy was `one of the more compliant individuals’ in the treatment program.
Rose Infante, a forensic therapist at the Center, worked on Duffy’s treatment team for 10 months. She testified that although Duffy was unwilling to fully reveal prior adult sexual conduct, he was receiving higher than median scores in the Center’s regular progress reports. At the conclusion of the evidence, the jury was given the following instruction:
Before Sean Duffy can be found to be a sexually violent predator, the State must prove beyond a reasonable doubt:
(1) That Sean Duffy has been convicted of a sexually violent offense; and
(2) That Sean Duffy currently suffers from a mental abnormality or a personality disorder; and
(3) That as a result of the mental abnormality or personal disorder, Sean Duffy is likely to engage in predatory acts of sexual violence if not confined in a secured facility.
If you find from the evidence that each of these elements has been proven beyond a reasonable doubt, then it will be your duty to return a verdict that Sean Duffy is a sexually violent predator.
On the other hand, if, after weighing all of the evidence, you have a reasonable doubt as to any one or more of these elements, then it will be your duty to return a verdict that Sean Duffy is not a sexually violent predator.
Clerk’s Papers at 71, 689.
The jury found that Duffy was a sexually violent predator, returning a verdict form that answered `yes’ to each of the following questions:
QUESTION NO. 1: Has the respondent, Sean Duffy, been convicted of a crime of sexual violence?
. . . .
QUESTION NO. 2: Does the respondent, Sean Duffy, suffer from a mental abnormality and/or a personality disorder?
. . . .
QUESTION NO. 3: Does this mental abnormality and/or personality disorder make the respondent, Sean Duffy, likely to engage in predatory acts of sexual violence if not confined to a secure facility?
Clerk’s Papers at 692-93.
Following our Washington State Supreme Court’s decision in In re Brooks, 145 Wn.2d 275, 36 P.3d 1034 (2001), Duffy’s motion for a new trial was granted. But following the court’s subsequent decision in In re Thorell, 149 Wn.2d 724, 72 P.3d 708 (2003), the order granting the new trial was withdrawn.
Duffy appeals, asserting that the trial court violated his due process rights by not requiring the State to prove to the jury that he had committed a `recent overt act’, that the evidence was insufficient to prove that Duffy had serious difficulty controlling himself from engaging in sexually violent criminal behavior, and that the jury should have been given a unanimity instruction requiring unanimity regarding whether Duffy suffered from a paraphilia disorder or an antisocial personality disorder.
DISCUSSION I. `Recent Overt Act’
In order to involuntarily commit a person under Washington’s Sexually Violent Predator Act, the State must provide sufficient evidence to prove beyond a reasonable doubt that the person is a sexually violent predator (SVP). RCW 71.09.060(1). A SVP is defined as: `[A]ny 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.’ RCW 71.09.020(16).
Duffy asserts that in addition to these elements, in order to satisfy due process sufficient to justify indefinite commitment of the individual, the State must also prove the current dangerousness of the individual by proving to the jury, beyond a reasonable doubt, that the individual committed a `recent overt act’ as defined by the Sexually Violent Predator Act. RCW 71.09.020 (10) (previously RCW 71.09.020(5)). Thus, Duffy argues that the trial court violated his due process rights by failing to allow the jury at the SVP commitment trial to determine beyond a reasonable doubt whether a `recent overt act’ had occurred.
Duffy is correct that due process prevents the State from involuntarily committing an individual unless the State proves that the person is dangerous to the community. In re Young, 122 Wn.2d 1, 26, 857 P.2d 989 (1993), review denied, 99 P.2d 896
(2004) (superseded by statute); U.S. Const. amends. V, XIV; Washington Const. art. 1, sec. 3. However, Duffy fails to recognize that due process requires the State to prove current dangerousness through a `recent overt act’ only where the individual is not incarcerated for such an act at the time the SVP petition was filed. The Washington State Supreme Court has consistently recognized that because sexually violent predators are often incarcerated prior to commitment, a requirement of a recent overt act would create a standard that would be impossible to meet. In re Henrickson, 140 Wn.2d 686, 695, 2 P.3d 473 (2000) (citing Young, 122 Wn.2d at 41). Thus, if, on the day the SVP petition is filed, the individual is in custody for a sexually violent offense under RCW 71.09.020(6), or for an act that would qualify as a `recent overt act’ under RCW 71.09.020(10), `due process does not require the State to prove that a further overt act occurred between arrest and release from incarceration.’ Henrickson, 140 Wn.2d at 694. The State has since codified this standard at RCW 71.09.030.
At the time the SVP petition was filed, Duffy remained incarcerated for committing rape in the first degree. This offense qualifies as a sexually violent offense under RCW 71.09.020(6). Existing case law and statutory law do not require the State to prove to the jury, beyond a reasonable doubt, that Duffy had committed a `recent overt act’ beyond a reasonable doubt to the jury.
Duffy cites various cases in an effort to show that his due process rights have been violated by application of this rule, but they are inapplicable to the situation presented here. In the case of In re Detention of Davis, 109 Wn. App. 734, 37 P.3d 325
(2002), review denied, 150 Wn.2d 1002 (2003) the defendant had served his sentence for his conviction of first degree child molestation and had been released into community custody. When Davis violated the terms of his community custody agreement by having contact with a minor without the approval of his therapist and community corrections officer, he was again incarcerated, and the State filed a petition to commit him as a SVP. Davis, 109 Wn. App. at 737-38. The Davis court first emphasized that although a literal reading of the SVPA would not require the State to prove that Davis committed a recent overt act, due process required `a showing that the person is dangerous to the community.’
Davis, 109 Wn. App. at 743. The court then held that the trial court erred by failing to require the State to plead and prove that Davis had committed a recent overt act because the act for which Davis was currently incarcerated, parol violations, was neither a sexually violent offense nor an act that would have qualified as a recent overt act under the Sexually Violent Predator Act. Thus, the court remanded for a new trial where the State would be required to plead and prove, beyond a reasonable doubt, that Davis had committed a recent overt act. Davis, 109 Wn. App. at 747.
The Court of Appeals decided a similar case in In re Detention of Broten, 115 Wn. App. 252, 62 P.3d 514, review denied, 151 Wn.2d 1010 (2003). In Broten, the defendant was released from prison after serving time for rape of a child. He violated the conditions of his community custody and was returned to incarceration, and the State filed a SVP petition. The State initially alleged a `recent overt act’ in its petition, but withdrew the allegation. Broten, 115 Wn. App. at 252-53. The Broten court recognized the reasoning in Davis and held that because the defendant had been released to the community, the trial court violated the defendant’s due process rights by not requiring the State to prove a recent overt act. See also, In re Detention of Albrecht, 147 Wn.2d 1, 10, 51 P.3d 73 (2002) (“[O]nce the offender is released into the community, as Albrecht was, due process requires a showing of current dangerousness.”);
RCW 71.09.060(1) (`[I]f, on the date that the petition is filed, the person was living in the community after release from custody, the state must also prove beyond a reasonable doubt that the person had committed a recent overt act’). In sum, the cases upon which Duffy relies are distinguishable. Here, Duffy had not served his sentence and had not been released into the community before the State filed its SVP petition.
Nevertheless, Duffy argues that because of the length of his incarceration, 20 years, only proof beyond a reasonable doubt of a `recent overt act’ could have shown present dangerousness. He also asserts that he was not, in fact, totally confined while in treatment, as required by RCW 71.09.020(7) because he was not totally confined to a cell within the prison walls; instead he spent time in the prison infirmary and in the prison sexual offender treatment program. Duffy asserts that he had the same kind of opportunity to commit sexually violent acts upon female staff at the prison as he would have had if he had been released to community custody, community placement, or community supervision, and so this court should hold that he was not actually incarcerated, within the meaning of the statute, for the 1980 rape offense when the SVP petition was filed.
We decline Duffy’s invitation to formulate what would, in effect, be a `washout’ provision, based on the passage of years, for the very sexually violent act for which a defendant remains incarcerated when a SVP petition is filed. Case law recognizes that requiring the State to prove a `recent overt act’ for an incarcerated individual would be nearly impossible and is thus not required for individuals who are incarcerated at the time of the petition. We hold that this is so regardless of the length of the incarceration. Indeed, the more serious the sexually violent offense leading to incarceration, the more likely it is that the incarceration will be lengthy.
We also reject the invitation to distinguish between degrees of incarceration based on whether an inmate spends some of the incarceration time in the prison infirmary, or in a prison treatment program, instead of a cell. We conclude that Duffy was incarcerated for the offense of rape in the first degree when the SVP petition was filed.
In sum, the trial court did not violate Duffy’s due process rights when it did not require the State to plead and prove a recent overt act to the jury, beyond a reasonable doubt.
II. Sufficiency of the Evidence
In order to uphold the commitment of an individual as a SVP on appeal, the reviewing court must find that the jury at the commitment trial had sufficient evidence to find the following elements beyond a reasonable doubt:
(1) That the respondent has been convicted of or charged with a crime of sexual violence; and
(2) That the respondent suffers from a mental abnormality or personality disorder; and
(3) That such mental abnormality or personality disorder makes the respondent likely to engage in predatory acts of sexual violence if not confined in a secure facility.
In re Detention of Thorell, 149 Wn.2d 724, 742, 72 P.3d 708
(2003). See also, RCW 71.09.020 (16).
On review of a challenge to the sufficiency of the evidence, this court must determine that the person’s mental abnormality or personality disorder, paired with the person’s sexual offense history, supports the finding that the person has `serious difficulty’ controlling his sexually violent behavior. Thorell, 149 Wn.2d at 736, 744. When viewed in the light most favorable to the State, there must be sufficient evidence supporting the finding of mental illness to allow a rational trier of fact to conclude that the person facing commitment has serious difficulty controlling behavior. Thorell, 149 Wn.2d at 744-45. No separate finding of lack of control is necessary; rather a link between the mental disorder and difficulty controlling behavior must be supported by the evidence.
Thorell, 149 Wn.2d at 738.
Duffy argues that the State presented insufficient evidence for the jury to prove that he had a `mental abnormality or personality disorder’ that made him `likely to engage in predatory acts of sexual violence if not confined in a secure facility’ such that the jury could determine he was a SVP. We disagree. Although Duffy’s case was decided before Thorell, the evidence provided at trial was sufficient to allow a rational trier of fact to conclude that a link existed between the mental disorders and Duffy’s difficulty controlling his behavior.
The State presented overwhelming evidence of a link between Duffy’s mental abnormality and his difficulty controlling behavior. First, Dr. Doren diagnosed Duffy with both a paraphilia disorder involving rape fantasies and an antisocial personality disorder. Paraphilia is a mental abnormality in which `the person experiences recurrent and intense fantasies, urges, and/or behavior involving sexual arousal’ on the basis of non-consenting sexual interaction. Dr. Doren emphasized that Duffy could be distinguished from many sex offenders who did not suffer from any paraphilias. Dr. Doren asserted that Duffy’s history of repetitive sexual offending was an integral part of Duffy’s maladaptive pattern of antisocial behavior.
Dr. Doren stated that each of Duffy’s mental abnormalities, including the paraphilia and the antisocial personality disorder, `is a congenital or acquired condition affecting his emotional or volitional capacity which predisposes him to commit criminal sexual acts[.]’ Clerk’s Papers at 35.
Dr. Doren concluded that Duffy’s disorders predisposed Duffy toward committing sexually violent acts and made Duffy more likely than not to engage in predatory acts of sexual violence if not confined in a secure facility. Dr. Judd agreed that Duffy suffered from the paraphilia and personality disorders, and similarly concluded that Duffy had a mental abnormality or personality disorder that made him more likely than not to engage in future acts of predatory sexual violence. Duffy’s expert, Dr. Barbaree, agreed that Duffy suffered from these same disorders. He disagreed with Dr. Doren’s application of the tools for predicting the likelihood of re-offense, however, and concluded that Duffy was not likely to re-offend. Dr. Barbaree’s testimony raised a jury question regarding the likelihood of re-offense; it did not defeat the sufficiency of the State’s evidence.
All the expert testimony at trial showed that Duffy suffered from the paraphilia and anti-social personality disorders. The evidence also showed that not all sexual offenders have paraphilia, and that Duffy’s particular paraphilia disorder caused him to have rape fantasies and to become sexually aroused in non-consent situations. None of the experts stated that Duffy’s anti-social personality disorder rose to the level of psychopathy, but the evidence illustrated that Duffy’s anti-social personality disorder involved the `the disregard for and violation of the rights of others’ and also predisposed Duffy to engage in acts of sexual violence as defined by RCW 71.09 et seq. Finally, the evidence illustrated that Duffy’s paraphilia and antisocial personality disorders were `congenital or acquired condition[s] affecting his emotional or volitional capacity which predisposes him to commit criminal sexual acts[.]’ Clerk’s Papers at 35.
We conclude that the evidence of these two mental abnormalities or disorders, paired with the evidence of Duffy’s numerous prior crimes, often involving forcible entry into homes and rape or attempted rape of non-consenting individuals, was sufficient to permit a rational trier of fact to determine beyond a reasonable doubt that Duffy had serious difficulty controlling his behavior and that a link existed between Duffy’s mental disorders and his serious difficulty controlling his behavior. Thus, sufficient evidence exists to prove beyond a reasonable doubt that Duffy had a `mental abnormality or personality disorder’ that made him `likely to engage in predatory acts of sexual violence if not confined in a secure facility’.
III. Unanimity Instruction
Duffy argues that a unanimity instruction was required specifying that the jury could only find him to be a SVP if the jurors unanimously agreed as to whether he had a mental abnormality or a personality disorder, and that the jury ought to have been required to specify which one was found beyond a reasonable doubt. He asserts that the lack of a unanimity instruction in the verdict violated his due process rights. In a recent case, In re Detention of Halgren, 122 Wn. App. 660, 98 P.3d 1206 (2004), we rejected the exact argument Duffy presents here. The Halgren court examined a situation where the evidence supported a conclusion that the defendant suffered from both a `mental abnormality’ and a `personality disorder’, but the defendant insisted that a unanimity instruction was required so that the jury could only pick one type of mental illness. Halgren, 122 Wn. App. at 662. The court observed that Halgren misunderstood the distinction between multiple criminal `acts’ and a diagnosis of `mental illness,’ and noted that “[t]here is no inherent distinction between being unable to control one’s behavior because of a `mental abnormality’ or because of a `personality disorder,’ or because of both.” Halgren, 122 Wn. App. at 668. Therefore, the Halgren court held that a unanimity instruction is not required as to which of the two types of mental illnesses specified in RCW 71.09.020(16) underlies a determination that one is an SVP. Halgren, 122 Wn. App. at 665-66.
Halgren controls. In sum, Duffy’s due process rights were not violated by the failure of the trial court to issue a unanimity instruction. The judgment and commitment are affirmed.
SCHINDLER, J., AGID, J., concur