IN RE YOUNG v. STATE, 34931-7-I (Wash.App. 12-1-2003)

No. 34931-7-IThe Court of Appeals of Washington, Division One.
Filed: December 1, 2003 UNPUBLISHED OPINION

Appeal from Superior Court of King County, Docket No: 90-2-21319-6, Judgment or order under review. Date filed: 07/07/1994.

Counsel for Appellant(s), Robert Charles Boruchowitz, Attorney at Law, 8th Fl Central Bldg, 810 3rd Ave, Seattle, WA 98104-1693.

Counsel for Appellant(s), Christine Anne Jackson, Attorney at Law, The Public Defender, 810 3rd Ave Fl 8, Seattle, WA 98104-1655.

Counsel for Respondent/Cross-Appellant, Jeffrey C Dernbach, King County Courthouse, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.

Counsel for Respondent/Cross-Appellant, David J.W. Hackett, King Co Pros Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2390.

AGID, J.

Andre Brigham Young appeals his civil commitment and confinement under chapter 71.09 RCW as a sexually violent predator (SVP). Although the Washington Supreme Court affirmed the verdict in Young’s 1993 commitment trial,[1] it remanded the case to the trial court for consideration of less restrictive alternatives (LRAs) to total confinement. Young appeals issues relating to his 1994 remand trial and his annual show cause hearings from 1991 to 1994. The parties completed their initial briefs in January 1998. Soon after the briefs were filed, this court stayed the appeal pending the Washington Supreme Court’s decisions in In re Detention of Turay,[2] In re Personal Restraint of Turay,[3] and In re Detention of Campbell.[4] The court lifted the stay in January 2003. Both parties submitted supplemental briefing and, at the court’s request, clarified those issues that remain unresolved by cases decided since 1998. The issues Young identified as unresolved are as follows: (1) Young’s second and third annual review hearings were untimely in violation of RCW 71.09.070 and .090; (2) the term `safe’ in both the 1991 and 1995 version of RCW 71.09.090 is unconstitutionally vague; (3) the trial court erred by failing to grant Young’s motion to have all issues pertaining to commitment considered in his 1994 trial; (4) Young’s conditions of confinement render chapter 71.09 RCW unconstitutional by making the statute punitive rather than civil in nature; (5) the conditions of confinement at the Special Commitment Center (SCC) render his incarceration unconstitutionally punitive as applied to him; (6) chapter 71.09 RCW is unconstitutionally punitive because it permits incarceration in the county jail during pretrial hearings and trial; (7) the trial court erred by admitting testimony of expert witness Dr. Irwin Dreiblatt under Frye v. United States;[5] and (8) under ER 702; and (9) Young was entitled to his proposed jury instruction defining `Less Restrictive Alternative Treatment.’ We affirm.

FACTS
Appellant Andre Brigham Young was convicted in October 1963 of four counts of first degree rape with two deadly weapon findings. While free on an appeal bond less than a year later, Young allegedly entered the home of a woman, exposed himself, threatened to hurt the woman’s child who was present, and threatened to rape and kill the woman. He was charged with attempted rape but was found incompetent to stand trial. In 1972, Young was released on parole from his 1963 conviction. After five years of freedom, Young raped another woman after illegally entering her home. He pled guilty to third degree rape and in 1980 was released from prison on that conviction. In 1985, Young forced his way into a woman’s apartment and raped her in front of her three children. He was charged and convicted for that crime.

On October 24, 1990, one day prior to his release from prison for his 1985 rape conviction, the State filed a petition alleging that Young was a SVP under RCW 71.09.030. Young’s initial commitment trial began in February 1991. A jury concluded Young met the criteria required for commitment on March 8, 1991. The Washington Supreme Court affirmed Young’s commitment, but remanded for consideration of LRAs to total confinement in August 1993.[6] In November 1993, the trial court signed an ex parte order finding probable cause on the State’s amended petition alleging the absence of LRAs. Although the court ruled that under Young,[7] no probable cause hearing was necessary, it held a hearing `out of an abundance of caution.’ The trial court found probable cause only with respect to LRAs. Young also moved for an evidentiary hearing on the conditions of confinement at the SCC. The trial court granted his motion, and it held a hearing in November and December 1993. The trial court held that Young failed to prove beyond a reasonable doubt that chapter 71.09 RCW was unconstitutional. In April 1994, the court held the trial on remand, asking the jury only to consider LRAs to total confinement. The jury returned a verdict that there were no LRAs to total confinement that were in the best interest of Young or others.

ANALYSIS I. Timing of Annual Examination Reports and Show Cause Hearings.
Although a committed person may appeal an original commitment order as a matter of right, appellate review of annual review proceedings under chapter 71.09 RCW is discretionary.[8] We accept discretionary review under RAP 2.3(b)(2) of Young’s challenge to the trial court’s order denying his motion to dismiss the State’s annual report filing as untimely. When Young was committed on March 8, 1991, RCW 71.09.070
provided:

Each person committed under this chapter shall have a current examination of his or her mental condition made at least once every year. The person may retain, or if he or she is indigent and so requests, the court may appoint a qualified expert or a professional person to examine him or her, and such expert or professional person shall have access to all records concerning the person. The periodic report shall be provided to the court that committed the person under this chapter.

On or before March 8, 1992, the State filed Young’s first annual report. Young claims his second annual review report was due no later than March 8, 1993, but the State filed the report on April 14, 1993.[9]
Young claims the trial court’s failure to rule on the matter until September 24, 1993, compounds the State’s late filing error.[10]
Young’s third annual review letter was also filed after the March 8 anniversary date, on March 23, 1994.[11] Young moved to dismiss it for untimeliness; Judge Harriett Cody denied the motion and held a show cause hearing. Young claims the trial court erred by failing to require the State to strictly comply with the time limits set forth in chapter 71.09
RCW. We disagree with Young for two reasons.

First, the State did not violate the statute when it filed the report after the one-year anniversary of Young’s commitment because the statute does not provide a deadline for filing an annual report or conducting show cause hearings.[12] The statute simply requires that `a current examination of [the detainee’s] mental condition [is] made at least once a year.’[13] In this case, Young does not claim the annual examinations were not conducted in a timely manner. He argues instead that an annual review is meaningless if the court does not act within a reasonable time. Even if that were true, the State did file its report `within a reasonable time’ after Young’s commitment anniversary date, and the trial court did not unreasonably delay its decision in light of Young’s pending appeal in the Supreme Court.

Second, the cases Young cites to support his argument are distinguishable from the facts here. Those cases involve strict statutory deadlines and determinate commitment schemes.[14] As stated above, RCW 71.09.070 differs from these cases because it does not contain a strict statutory deadline for annual report filings and show cause hearings and involves an indeterminate commitment scheme.[15]

We decline to discuss Young’s constitutional challenge to the annual review provision because his equal protection arguments were already addressed and rejected in Petersen v. State.[16] Because the State did not violate the statutory time requirements, we also need not address Young’s due process claims.

II. Constitutionality of the Term `Safe’ in the 1991 and 1995 Versions of RCW 71.09.090(2).
Young next challenges RCW 71.09.090(2) on constitutional grounds, arguing that the term `safe’ is unconstitutionally vague in both the 1991 and the 1995 versions of the statute. Under the due process clause of the Fourteenth Amendment, a statute is void for vagueness if it “does not define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is proscribed”, or “does not provide ascertainable standards of guilt to protect against arbitrary enforcement.”[17] Impossible standards of specificity are not required; rather, the language used must be susceptible to understanding by people of ordinary intelligence.[18] We reject Young’s argument and hold that when both versions of the provision at issue are read as a whole, the term `safe’ is not unconstitutionally vague.

In 1991, RCW 71.09.090(2) stated in part:

If the court at the show cause hearing determines that probable cause exists to believe that the person’s mental abnormality or personality disorder has so changed that the person is safe to be at large and will not engage in acts of sexual violence if discharged, then the court shall set a hearing on the issue. . . . The burden of proof at the hearing shall be upon the state to prove beyond a reasonable doubt that the committed person’s mental abnormality or personality disorder remains such that the person is not safe to be at large and if released will engage in acts of sexual violence.’[19]

In In re Young, the Washington Supreme Court rejected arguments that several terms in this early version of RCW 71.09.090(2) were unconstitutionally vague.[20] Included in the analysis were the terms “comparable”, “sexually motivated”, “safe to be at large”, “mental abnormality”, and “likely.”[21] We will not reexamine the issue here. In 1995, RCW 71.09.090(2) provided in relevant part:

[T]he court shall set a show cause hearing to determine whether facts exist that warrant a hearing on whether the person’s condition has so changed that he or she is safe to be conditionally released to a less restrictive alternative or unconditionally discharged. . . . The burden of proof at the hearing shall be upon the state to prove beyond a reasonable doubt that the committed person’s mental abnormality or personality disorder remains such that the person is likely to engage in predatory acts of sexual violence if conditionally released to a less restrictive alternative or unconditionally discharged.

When the 1995 version of RCW 71.09.090(2) is read as a whole, the term `safe’ refers to a sexually violent predator’s mental condition having changed to the point at which he or she is not likely to commit predatory acts of sexual violence if conditionally released or unconditionally discharged. The statute is quite specific about the meaning of the word `safe’ and provides a clear standard to guide the exercise of discretion in conducting release show cause hearings. The term is not unconstitutionally vague.

III. Scope of Issues at 1994 Remand Trial.
In Young,[22] the Washington Supreme Court affirmed Young’s sex predator determination and remanded the case to the trial court `solely for a consideration of less restrictive alternatives.’[23] On remand, the trial court denied Young’s motion for a trial on all issues relating to commitment, restricting it to consideration of LRAs as the Supreme Court ordered. Young claims that he was entitled to a trial on all the prerequisites for commitment in 1994 under In re Brooks.[24] We reject this argument because the Supreme Court overruled portions of its Brooks opinion in In re Thorell,[25] and the overruled portions are relevant here. In Brooks, the Washington Supreme Court held that the 2001 version of chapter 71.09 RCW, which prohibited considering LRAs at the commitment trial, violated the equal protection clause when compared with chapter 71.05 RCW, which required consideration of LRAs at the initial commitment trial.[26] It reaffirmed its decision in Young that there are good reasons to treat SVPs differently from other mentally ill people because SVPs are generally more dangerous to others than are the mentally ill.[27] But it concluded there was no rational basis on which to treat SVPs differently with respect to when a jury could consider LRAs. The court determined `that the SVP statute allows for a sufficient period of time both before and after the [initial] commitment trial for a proper evaluation of whether a committed person may safely be released to an LRA.’[28] Accordingly, it remanded for a new commitment trial where LRAs would be considered. In 2003, the Washington Supreme Court reexamined its opinion in Brooks and expressly overruled portions of the decision. In Thorell,[29] the court held that the fact finder need not consider LRAs at initial commitment, and they may be considered for the first time during the annual LRA review without violating equal protection.[30] It accepted the State’s claim that LRA evaluation can only occur after commitment because a competent evaluation requires intensive inpatient treatment.[31] It noted that before commitment, detainees are preoccupied with legal challenges, and their defense lawyers often instruct them to limit their participation in treatment to avoid admitting past sexual acts or their desire to commit such acts.[32]
Accordingly, only after commitment, when SVPs tend to participate in treatment, can treatment providers evaluate LRA possibilities properly. The court concluded by stating, `To the extent our holding here conflicts with Brooks, that case is overruled.’[33]

Young asserts that although the court overruled Brooks, that does not foreclose his request for an LRA trial on all issues relating to commitment. He contends Thorell does not apply here because it only considered the 2001 SVP statute under which the definition of `secure facility’ prevented a court and jury from considering `LRAs other than those appropriate to an SVP.’[34] The Thorell court stated that the 2001 definition of `secure facility’ a term that is included in the definition of `sexually violent predator’ bolstered its holding that differentiating between LRAs for SVPs and other mentally ill people is rationally related to legitimate objectives because `[it] allows the functional equivalent of LRAs to be considered under [chapter 71.09 RCW] without reliance upon those provided for by chapter 71.05.’[35] Young argues the court’s reliance on the new definition of `secure facility’ makes its holding inapplicable to him because he was committed under a statute that did not include that definition. We disagree for two reasons.

First, the court’s statement is dicta. In relevant part it stated, We now conclude that differentiating between LRAs for those involuntarily committed under chapter 71.05 and the SVPA is a rational means to achieve these legitimate objectives [providing treatment specific to sex offenders and protecting society]. . . .

Our conclusion is bolstered by our determination that the current definition of a secure facility under the SVPA allows the functional equivalent of LRAs to be considered under the SVPA without reliance upon those provided for by chapter 71.05. . . .[36]

The court is merely pointing out the statute contains evidence that the Legislature chose to treat SVPs and other mentally ill people differently as a means of achieving the state’s objectives.[37] It does not say that it considered — nor does it appear to consider — the 2001 definition of `secure facility’ in its equal protection analysis of that issue. Also contrary to Young’s claim, the court does not say that it relied on — nor does it appear to rely on — the 2001 definition of `secure facility’ when it considered the equal protection claim at issue here: Whether the 2001 statute violates equal protection because it prohibits LRA consideration at the initial commitment trial.[38]

Second, and more importantly, including or omitting this definition does not affect the court’s ultimate conclusion: There is a rational relationship between delaying consideration of LRAs for SVPs until their first annual review so they may undergo treatment to determine appropriate LRAs and the legitimate governmental interest it serves, to protect society and provide appropriate treatment of SVPs.[39]
Accordingly, the court’s holding in Thorell applies here to Young’s claim that he is entitled to a new commitment trial to consider LRAs. The trial court properly limited Young’s 1994 trial to the Supreme Court’s mandate in Young — considering whether LRAs are appropriate.

IV. Conditions of Confinement at the SCC.
Young alleges that the confinement conditions at the SCC are more severe than those at the Department of Corrections and the conditions of care are inadequate. Therefore, he asserts, his detention is criminal rather than civil in nature, violating his rights to due process and protections against double jeopardy and ex-post facto laws. The State counters that the facts in Young were incorporated in In re Campbell and In re Turay where the Washington Supreme Court already considered and rejected the argument. We agree with the State.

In Campbell, the court referred to its opinion in Young, stating, In analyzing the constitutionality of RCW 71.09 in Young, we also examined the issue of whether `the [s]tatute violates due process because . . . constitutionally required treatment is precluded due to the conditions of confinement.’ . . . In Young, this court held the legislative intent of the statute is not to punish detainees and RCW 71.09 is civil, not criminal, in nature in both `purpose and effect.’ . . . `RCW 71.09 . . . does not violate either the prohibition against ex post facto laws or the double jeopardy clause. We further hold, after a searching inquiry, that the basic statutory scheme implicates no substantive due process concerns.’[40]

The court reiterated that chapter 71.09 RCW passed strict scrutiny analysis because by treating the mentally ill and removing sexual predators from society, it serves a compelling state interest.[41] It rejected Campbell’s argument that when a statute is unconstitutionally administered, the statute itself is unconstitutional because Campbell had `confus[ed] the issue of a committed individual’s due process rights following a valid commitment under the [s]tatute with the analysis of whether the [s]tatute’s scheme for involuntary commitment is constitutional.’[42] It reiterated the rule that a court looks at the statute on its face, not how it is applied, to decide whether it is constitutional. It expressed doubt that Campbell could challenge the statute’s validity based upon conditions of confinement[43] and concluded that even if he could, he would have to show `by the “clearest proof’ that the `statutory scheme [is] so punitive either in purpose or effect as to negate [the State’s] intention that the proceeding be civil. . . .”[44] Campbell did not make that showing.[45] The trial court here, also relying on Young, properly concluded it could not consider conditions of confinement to invalidate a statutory scheme that the courts had held was civil in purpose and facially valid.[46] And it also concluded that, like the defendant in Campbell, Young failed to prove the conditions of confinement are so punitive that they negate the legislative intent that the proceeding be civil. Although the trial court in this case found inadequacies in the conditions and care at the SCC and noted that some of the conditions were more restrictive than those imposed on prison inmates at the Department of Corrections facilities, the deficiencies in the SCC are subject to remediation and correction under federal district court direction.[47] Accordingly, as in Campbell, the proper relief in this case is to remedy constitutional defects in the SCC’s administration, not to invalidate the statute.

V. Unconstitutionality as Applied.
Young claims the Supreme Court’s opinion in Seling v. Young[48]
`clearly supports’ his argument that the statute is unconstitutional as applied to him. But he does not analyze the case, relying only on arguments presented in his original brief written four years before Seling was decided.[49] In Seling, Young filed a habeas corpus action in federal court, raising the same issues concerning the conditions of confinement he asserts here. The United States Supreme Court rejected his claim that chapter 71.09 RCW violates the ex post facto and double jeopardy clauses, concluding that Young’s `as applied’ argument was fundamentally flawed.[50] It relied on Washington courts’ interpretation of chapter 71.09 RCW as a civil act and denied Young a hearing on conditions of confinement. It held, `An Act, found to be civil, cannot be deemed punitive `as applied’ to a single individual in violation of the Double Jeopardy and Ex Post Facto Clauses and provide cause for release.’[51] Accordingly, we reject Young’s argument as erroneous.

VI. Incarceration During Trial and Pretrial Hearings.
RCW 71.09.060(3) and RCW 71.09.090(3) permit incarceration of alleged SVPs during pre-trial hearings and civil proceedings. Young claims this renders the statute unconstitutionally punitive. The State counters that this court already addressed and resolved this issue in In re Aqui.[52]
Although the Aqui court did not decide this precise issue, it did reach conclusions that are relevant here. In that case, Aqui argued that RCW 10.77.220, referred to in the 1991 version of RCW 71.09.060(3), did not authorize detaining him during trial. Although the statute did not provide that a person should be incarcerated during trial, the court concluded: `Given the need to protect the public safety by securing a potentially dangerous person during the duration of the trial, the trial court acted within its authority to order detention during trial.’[53]
The legislature recognized this public safety concern when it amended in 1995 RCW 71.09.060(3) to require that during all court proceedings the detainee be in a secure facility.[54] Young does not allege nor does the 1995 legislative amendment suggest that the legislature intends to punish individuals by incarcerating them during trial and pre-trial hearings. Rather, it is merely designed to protect the public during the civil proceedings. In addition, the cases Young cites, Reanier v. Smith[55] and State v. Phelan,[56] are distinguishable from the facts here. Both cases involve credit for detention time prior to sentencing in criminal proceedings. Because this is a civil proceeding, those cases provide little support to Young’s argument.

VII. Dr. Dreiblatt’s Testimony.
There are two prongs to the Frye test: (1) whether the evidence is based upon a theory that is generally accepted in the relevant scientific community and (2) whether the technique used to implement that theory is also generally accepted by that scientific community.[57] Once the court determines that the technique is generally scientifically accepted, the question of whether a `generally accepted technique was performed correctly on a given occasion’ goes to the weight of the evidence, not to its admissibility.[58] We review the trial court’s decision to admit or exclude novel scientific evidence de novo.[59] A reviewing court undertakes a searching review that is not always confined to the record.[60] `Decisions from other jurisdictions may be examined . . ., but the relevant inquiry is the general acceptance by scientists, not by the courts.’[61] We generally will not consider arguments that are unsupported by pertinent authority, references to the record, or meaningful analysis.[62]

A. The `Personality Disorder Not Otherwise Specified’ Diagnosis.
Young claims that Dr. Dreiblatt’s diagnosis that Young suffered from a `personality disorder not otherwise specified’ (PDNOS) should not have been admitted because it `requires only a conclusion that the subject has made a mess of his life’ and it is not susceptible to proof by scientific criteria. The State claims the issue was raised and rejected in Young.[63]

We reject the State’s argument that this issue was resolved in Young. In that case, the court acknowledged Young was diagnosed with PDNOS and concluded that the combination of PDNOS and mental abnormality was sufficient to meet the definition of sexually violent predator.[64] But Young did not challenge the diagnosis under Frye, and the court did not perform a Frye analysis.

We also reject Young’s argument because he does not provide argument or citation[65] supporting his claim that there is no generally accepted technique to implement the theory of PDNOS. The scientific literature he cites earlier in his brief involves violence prediction, not personality disorders, and the cases he cites simply reiterate the Frye rule rather than lending support to his claim. In addition, the record suggests that this is a valid personality disorder. It is defined in the Third Edition of the American Medical Association’s Diagnostic and Statistical Manual as Disorders of personality functioning that are not classifiable as a specific Personality Disorder. An example is features of more than one specific Personality Disorder that does not meet the full criteria for any one, yet cause significant impairment in social or occupational functioning, or significant distress.[66]

Dr. Dreiblatt testified that Young had the disorder, which he described as a combination of traits associated with paranoid, borderline, and narcissistic personality disorder plus anti-social personality disorder. Finally, PDNOS has been diagnosed and testimony about it admitted in a number of cases involving sexually violent predators.[67] There is no basis on which to reject this diagnosis under either prong of the Frye standard.

B. No LRAs Conclusion.
Young next argues that Dr. Dreiblatt’s testimony about LRAs to confinement `went beyond the limits of his professional competence’ because the American Psychological Association specifically states that it is inappropriate for an evaluator to testify that an individual is too dangerous to be released. We reject Young’s argument because Dr. Dreiblatt did not testify that Young was too dangerous to be released into the community.

In the portion of the record Young cites, Dr. Dreiblatt testified that in 1993, he gave an opinion about whether Young’s best interest would be served by LRAs to incarceration. He testified that he considered six forms of LRA treatments and rejected them based on a number of factors.[68] Neither his opinion, the reasons underlying it, nor the factors he considered describe Young as `too dangerous to release.’ In fact, when cross-examined about his opinion and the handbook of the Association for the Treatment of Sexual Abusers’ (ATSA) suggestion that it is inappropriate to state an offender is too dangerous to release, Dr. Dreiblatt clarified that he was merely `saying that there is a greater likelihood than not that [Young] will commit future acts of sexual violence against females, particularly adult females.’ This type of testimony is admissible under Frye.[69]

C. Testimony About `Chronicity’ and Paraphilia.
Young asserts Dr. Dreiblatt’s testimony about the `chronicity’ of paraphilias and personality disorders is flatly rejected by the American Psychiatric Association’s Diagnostic and Statistical manual, Fourth Edition (DSM-IV). The State contends the sections of the DSM-IV that Young cites support Dr. Dreiblatt’s testimony. We agree with the State.

The relevant portion of DSM-IV states:

The disorders [paraphilias] tend to be chronic and lifelong, but both the fantasies and the behaviors often diminish with advancing age in adults.[70]
. . . .
Some types of Personality Disorder (notably, Antisocial and Borderline Personality Disorders) tend to become less evident . . . with age.[71]
. . . .
Antisocial Personality Disorder has a chronic course but may become less evident or remit as the individual grows older, particularly by the fourth decade of life. Although this remission tends to be particularly evident with respect to engaging in criminal behavior, there is likely to be a decrease in the full spectrum of antisocial behaviors and substance use.[72]

The record shows that Dr. Dreiblatt’s testimony is consistent with the DSM-IV. He testified that age can be significant when formulating his opinion about whether LRAs are good options for a person like Young. In the context of discussing age, he stated that some rapists act impulsively when an opportunity exists to rape. Others, like Young, act with a continuing, compulsive `push’ within them to commit sexual violence on women. Young claims the following testimony is inconsistent with the DSM-IV: `Paraphiliac impulses that don’t decline with age, they tend to continue unabated through a person’s lifetime.’ In the context of the entire statement, however, Dr. Dreiblatt’s testimony appears to mean that when the impulses do not decline with age then they tend to continue through a person’s lifetime, which is not inconsistent with the DSM-IV’s statements about some types of personality disorders tending to diminish with age. Young does not claim the scientific literature rejects this conclusion. In fact, Dr. Dreiblatt’s understanding and reliance on the quoted portions of the DSM-IV is apparent in his testimony immediately following the disputed statement:

So, in this case, I don’t think age is a potent factor, and that is reinforced by the fact that the last rape was committed in 1985, which would have made Mr. Young approximately forty-three or forty-four years of age.

He was already, then, passed what is usually thought of as the limit of when people commit impulsive rapes. People who are impulsive life-style people tend to commit rapes and or other assaults from the time they are fifteen to maybe thirty, and then that drops off dramatically. Here is Mr. Young, still at age forty-three and forty-four, committing the rape. . . .

In sum, the testimony is not contrary to the DSM-IV, and it is therefore not barred under Frye.

D. Failure to Discuss Specific Crimes.
Young claims Dr. Dreiblatt violated ATSA guidelines by not specifying when Young might reoffend. Therefore, he asserts, the prediction was inadmissible under Frye. The State contends that Dr. Dreiblatt simply declined to make an absolute prediction of reoffense. We agree with the State. Contrary to Young’s argument, Dr. Dreiblatt’s refusal to make a specific prediction that within five years Young will reoffend is not contrary to ATSA guidelines. Dr. Dreiblatt testified that according to the ATSA handbook,

[i]f a member decided that it’s appropriate on the basis of a thorough evaluation in a given case to provide a prediction of criminal behavior, he or she should specify clearly, A, the acts being predicted, B, the estimated probability that these acts will occur in a given period of time; and C, the facts upon which these predictive judgments are based . . . [.]

The record shows that Dr. Dreiblatt’s testimony fulfilled each requirement of the ATSA guidelines. First, he testified that Young was likely to commit predatory acts of sexual violence if released. Second, he testified that `if you look at a five year time frame, I think it’s quite likely that he will reoffend.’[73] He would not make an absolute prediction, but testified that five years was `a reasonable period of time to be considering.’[74] His opinion sufficiently provides an estimated probability (quite likely) that Young will reoffend (with acts of sexual violence) in a given period of time (five years). Third, it is uncontested that Dr. Dreiblatt gave a number of reasons for his opinion. In sum, Dr. Dreiblatt did not ignore accepted scientific explanations recommended by the ATSA, and the trial court did not err by allowing his testimony.

VIII. Admissibility of Dr. Dreiblatt’s Testimony Under ER 702.
Once a scientific test has met the Frye standard, an appellate court reviews a trial court’s decision to admit the evidence under ER 702 for abuse of discretion.[75] A trial court abuses this discretion if no reasonable person would take the view the trial court adopted or the court’s exercise of discretion is manifestly unreasonable or based on untenable grounds or reasons.[76] ER 702 provides: `If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.’ The two part test a court applies for an ER 702 inquiry is whether “(1) the witness qualifies as an expert and (2) the expert testimony would be helpful to the trier of fact.”[77] Education and practical experience may qualify a witness as an expert.[78] Once an expert has been qualified, he or she may express an opinion on issues covered by that expertise.[79] The expert testimony of an otherwise qualified witness is not admissible if the issue lies outside the witness area of expertise.[80]

Young does not challenge Dr. Dreiblatt’s qualification as an expert in evaluating sex offenders for treatment and placement. Rather, he argues Dr. Dreiblatt’s testimony about LRAs should have been excluded because he is not an expert in locating or determining the advisability of LRAs. The State argues his expertise in locating or determining LRAs is not the issue because Dr. Dreiblatt’s undisputed expertise is in evaluating sex offenders for treatment and placement: So, the relevant question is whether his expertise in that area is helpful to the trier of fact in determining whether LRAs are possible.

There is no question that Dr. Dreiblatt was qualified as an expert in evaluating sex offenders.[81] And the record does not suggest he offered testimony outside of his expertise. It shows that Dr. Dreiblatt considered all the LRAs of which he was aware, including alternatives Young suggested.[82] He specifically limited his testimony to the six categories of LRAs of which he was aware and to whether Young could be placed in those programs. He did not claim that these were the only programs that could be considered or that they were all available in Washington.

We also reject Young’s claim that this testimony was not helpful to the trier of fact because (1) the opinions were simply diagnostic impressions, made without interviewing Young or his family, (2) Dr. Dreiblatt improperly told the jurors what result to reach, (3) his testimony was inconsistent with the court’s instruction about the State’s burden to prove there were no LRAs to commitment under chapter 71.09
RCW, and (4) his contradiction of his own prior testimony rendered his testimony unreliable and not helpful to the jury. First, we reject Young’s argument about diagnostic impressions for the same reasons the Washington Supreme Court rejected the claim in Young that Dr. Dreiblatt’s testimony was inadmissible under ER 703. It stated,

Both experts for the State here relied on psychological reports and criminal history of petitioners. They testified that these are the types of materials reasonably relied on to diagnose future dangerousness of sex offenders. Indeed, in the face of petitioners’ refusals to cooperate, no other course was open to the State’s experts.

Finally, it must be pointed out that petitioners each presented expert testimony of their own. The juries were urged by defense experts to reject the opinions of the State’s experts, and had ample opportunity to weigh the testimony of both sides.[83]

In the case of LRAs, Dr. Dreiblatt’s testimony about Young’s future dangerousness and the risks of placing him in treatment outside of confinement Search Term End is central to the ultimate question of whether Young should be placed in any treatment less restrictive than confinement. Second, Young does not cite to any place in the record where Dr. Dreiblatt told the jury what result to reach, and a search of the record reveals he gave only his opinion that under the facts in this case, no LRAs were appropriate.[84] As the State argues, this opinion testimony is admissible under ER 704.

Third, Dr. Dreiblatt’s testimony does not, as Young suggests, improperly communicate a legal standard, `attempt to reverse the burden of proof,’ or improperly compete with the judge to instruct the jury. Young cites to Dr. Dreiblatt’s testimony that he was unaware of any hospital in Washington capable of providing for Young’s specific needs and that there was no indication from his review of Young’s progress at the SCC that there were any changes in his nature that would reduce his risk of reoffending. This testimony does not appear in any way to shift the burden of proof away from the State. Accordingly, we presume the jury followed the court’s instructions about the appropriate burden of proof.

Fourth, the fact that Dr. Dreiblatt testified in 1991 that he could not say with reasonable certainty that Young suffered from sadism but then testified in 1994 that Young did suffer from sadism does not make the evidence inadmissible under ER 702. Assuming this is an inconsistency, since Dr. Dreiblatt could have more information in 1994 than he had in 1991, Young had an opportunity to impeach Dr. Dreiblatt with the inconsistency on cross-examination. The jury could consider the inconsistency when weighing all the evidence presented. The trial court did not abuse its discretion by admitting Dr. Dreiblatt’s testimony under ER 702.

IX. Young’s Proposed Jury Instruction Defining `Less Restrictive Alternative Treatment.’
Jury instructions are adequate if, taken as a whole, they properly inform the jury of the applicable law, are not misleading, and permit the defendant to argue his theory of the case.[85] A trial court is not required to give an instruction which is erroneous in any respect.[86]
The standard of review for a challenge to a jury instruction depends on whether the trial court’s refusal to give the preferred instruction was based on law or of fact. We review factual disputes for abuse of discretion and rulings of law de novo.[87]

Young claims the trial court erred by refusing to give his instruction on LRAs. The court refused to instruct the jury that less restrictive treatment alternatives do not involve release from court supervision. Jury instruction number 7 read:

A less-restrictive treatment alternative means treatment that is an alternative to total confinement with the Department of Social and Health Services at the Special Commitment Center.

Young’s proposed instruction stated:

`Less restrictive alternative treatment’ means treatment that is an alternative to total confinement at the Special Commitment Center. Not all sex offenders present the same level of danger, nor do they require identical treatment conditions. If you decide that less restrictive treatment is in the best interest of the respondent or others, then the court will determine whether there is an appropriate, available less restrictive treatment alternative, and, if so, order the respondent comply with the conditions of such an alternative, monitor conditions or re-detain the respondent for non-compliance.

We agree with Young that a jury considering whether LRAs to total confinement are appropriate should be instructed that an LRA is a court-supervised and conditional order in order to assure the jurors that an LRA is not tantamount to release. But we do not conclude that the trial court erred by failing to give Young’s proposed instruction. His instruction suggests the court will `re-detain’ Young if he fails to comply with the LRA conditions. This is at best speculative because a court will not always detain a non-compliant respondent. Also, the instruction places the trial court in an awkward position of appearing to insure the respondent will comply with the imposed conditions.

Finally, because a proper jury instruction would not have yielded a different result in Young’s trial, the instructional error was harmless. Affirmed.

SCHINDLER and COX, JJ., concur.