IN RE: the DETENTION OF Charles SKINNER (2004)

PUBLISHED IN PART

Charles Skinner appeals the order committing him as a sexually violent predator (SVP) and the order denying his motion to dismiss following a trial on less restrictive alternatives to confinement (LRAs).   The State cross-appeals the order denying its motion for a judgment as a matter of law pursuant to former RCW 71.09.094 and other rulings of the trial court.

We hold in the published portion of this opinion that the provisions of former RCW 71.09.094 that permit a judgment as a matter of law on the issue of conditional release comply with due process and equal protection.   Further, we conclude that the trial court erred in holding the LRA trial in contravention of the statutes, and that the verdict on this trial and the trial court's denial of the State's motion for judgment as a matter of law are void.   We also hold that Skinner's challenges to the order of commitment in this case are not persuasive.   Finally, respecting the remaining issues that the State raises in its cross appeal, we conclude there was no prejudicial error by the trial court.   Accordingly, we affirm in part and reverse in part.

Skinner has been convicted repeatedly for committing sex offenses.¹ His most recent convictions were in 1987, when he pled guilty to one count of attempted first degree rape and one count of first degree rape.   In November 1998, one day before his scheduled release from prison following service of the sentences on his most recent convictions, the State petitioned for his commitment under RCW 71.09 as an SVP. Following Skinner's waiver of his right to trial within the statutory term, the superior court set trial for January 2000.

Skinner moved pretrial for clarification of evidentiary issues.   He noted that the definition of “sexually violent predator” in former RCW 71.09.020(1),² which was in effect in 2000 during the trial of this matter, included the statement that an SVP was someone “likely to engage in predatory acts of sexual violence if not confined in a secure facility.”   Based on this definition, he argued that the statute required consideration by the fact-finder of LRAs at the commitment trial.   The trial court held that the statutory definition did not permit consideration of LRAs at the commitment trial.   The court also held that the equal protection clause of the constitution required that a trial regarding conditional release upon an LRA must immediately follow the commitment trial.   Accordingly, the court bifurcated the trial into a commitment phase followed immediately by a conditional release phase. The same jury considered the evidence for the two phases of the bifurcated trial.

At the conclusion of the commitment phase, the jury found that Skinner was an SVP. However, at the conclusion of the conditional release phase, the jury found that the State had failed to meet its burden to prove beyond a reasonable doubt that “a less restrictive alternative is not in the best interests of Charles Skinner or will not adequately protect the community” and that Skinner was likely to reoffend if released to an LRA.

Skinner subsequently moved to dismiss based on the jury's finding that the State had failed to prove that an LRA was not in his best interests or would not adequately protect the community.   He argued that this finding negated the finding that he was an SVP. The trial court denied the motion.

The State sought reconsideration of a prior ruling that former RCW 71.09.094 was unconstitutional.   The State also moved for judgment as a matter of law based on that statute.   The court denied these motions.

The court entered an order of commitment and directed the Department of Social and Health Services (DSHS) “to prepare a conditional release plan for Mr. Skinner which meets the criteria articulated in RCW 71.09.092.”   The court also ordered the Department of Corrections (DOC) “to investigate the less restrictive alternative proposed by the parties and DSHS and recommend any additional conditions to the court.”

Skinner appeals the commitment order and the order denying his posttrial motion to dismiss on the basis of the jury verdict.   The State cross-appeals, challenging the order for the second phase of trial, the order declaring former RCW 71.09.094(1) unconstitutional, the denial of its motion for judgment as a matter of law, and several evidentiary rulings.³

In October 2001, this court stayed a trial court hearing to evaluate a proposed LRA plan pending our decision on appeal.   We ordered further stays pending the supreme court's decisions in In re Brooks⁴ and In re Thorell.⁵  The parties reargued this case following the last of these two state supreme court decisions.

JUDGMENT AS A MATTER OF LAW

 The State argues that the trial court erred in deciding that the provisions of former RCW 71.09.094(1) providing for judgment as a matter of law unconstitutionally shift the burden of proof to an SVP to propose an LRA that meets the criteria set forth in RCW 71.09.092. We hold that the statute is not unconstitutional:  the burden of proof remains with the State, notwithstanding the fact that the statutory procedure tests whether any triable issue remains for a jury to consider.   Moreover, on this record, the trial court should have granted the State's motion.

Former RCW 71.09.094 states that:

(1) Upon the conclusion of the evidence in a hearing held pursuant to RCW 71.09.090, if the court finds that there is no legally sufficient evidentiary basis for a reasonable jury to find that the conditions set forth in RCW 71.09.092 have been met, the court shall grant a motion by the State for a judgment as a matter of law on the issue of conditional release to a less restrictive alternative.[6]

The trial court held that former RCW 71.09.094(1) required the respondent to bear the burden of providing proof that he fulfills the requirements of RCW 71.09.092, and that this requirement shifted the burden of proof from the State.   According to the court, such a shift violates due process and is therefore unconstitutional.   We hold that this statute does not violate due process.

 Statutes are presumed to be constitutional.⁷  The party challenging the constitutionality of a statute bears the burden of proving beyond a reasonable doubt that the statute is unconstitutional.⁸

Former RCW 71.09.094(1) required the court to grant a motion for judgment as a matter of law in favor of the State on the issue of conditional release to an LRA if no legally sufficient evidentiary basis existed for a reasonable jury to find that the conditions set forth in RCW 71.09.092 are met.   A court may not order conditional release unless these conditions are met:

(1) The person will be treated by a treatment provider who is qualified to provide such treatment in the State of Washington ․;  (2) the treatment provider has presented a specific course of treatment and has agreed to assume responsibility for such treatment and will report progress to the court on a regular basis, and will report violations immediately to the court, the prosecutor, the supervising community corrections officer, and the superintendent of the special commitment center;  (3) housing exists that is sufficiently secure to protect the community, and the person or agency providing housing to the conditionally released person has agreed in writing to accept the person, to provide the level of security required by the court, and immediately to report to the court, the prosecutor, the supervising community corrections officer, and the superintendent of the special commitment center if the person leaves the housing to which he or she has been assigned without authorization;  (4) the person is willing to comply with the treatment provider and all requirements imposed by the treatment provider and by the court;  and (5) the person is willing to comply with supervision requirements imposed by the department of corrections.[9]

It is undisputed that two of these requirements, a treatment provider and a residence, were not met in this case as of the time of the State's motion.

Implicit in the wording of former RCW 71.09.094(1) is the requirement that the State bears the burden of proof on the issue that is the subject of a motion for a judgment as a matter of law.   Likewise, the requirement that the burden of proof for such a motion is beyond a reasonable doubt is implicit in the statutory framework.

We reach these conclusions for two reasons.   First, former RCW 71.09.094(2) expressly states that the State has the burden of proof before the jury at trial and that the burden of proof is beyond a reasonable doubt.¹⁰  Second, our supreme court has held that the State bears the burden of proof in civil commitment hearings under the SVP statute, particularly in show cause hearings under RCW 71.09.090(2).¹¹  There is no reason to expect that less rigorous criteria would apply to a motion for a judgment as a matter of law under former RCW 71.09.094(1), a motion that may avoid a trial on the mandatory statutory criteria.

The issue here is whether the burden of proof shifted away from the State and to Skinner when the former moved for a judgment as a matter of law based on the record then before the court.   There was no such shift here.

Commentators have observed that the term “burden of proof” encompasses two separate burdens:  that of producing evidence on a particular issue and that of persuading the trier of fact that a particular fact is true.¹²  “The burden of producing evidence on an issue means the liability to an adverse ruling (generally a finding or directed verdict) if evidence on the issue has not been produced.” ¹³  But the burden of persuasion does not shift from party to party during the trial because it concerns the ultimate decision.¹⁴  The burden of production identifies issues of fact,¹⁵ while the burden of persuasion defines the degree of certainty with which the fact finder must decide the issues.¹⁶  A party must first meet its burden to produce satisfactory evidence before the court reaches the ultimate burden of persuasion.¹⁷

The statutory provisions that Skinner challenges are designed to test whether there is a legally sufficient evidentiary basis for a jury to find that the mandatory requirements of RCW 71.09.092 have been met.   Under this statute, both the burden of producing evidence that Skinner failed to fulfill the mandatory statutory criteria and persuading the court of the truth of that proposition remained with the State.   The fact that Skinner had the opportunity to bring forth evidence to attempt to defeat the State's motion did not shift the burden of proof away from the State.   Rather, the motion tested whether the evidence then before the court, regardless of the source of that evidence, was legally sufficient for the question to go to the jury.   Unquestionably, it was not.   Two of the mandatory statutory criteria were missing at the time of the motion, as shown by the State.

There was no shifting of the burden of proof away from the State and no violation of due process.

 Citing People v. Trainor¹⁸ as supplemental authority, Skinner argues that former RCW 71.09.094(1) does not comport with due process.   We disagree.

In Trainor, the court held that a summary judgment proceeding “would allow the State to circumvent the defendant's right to a jury trial” ¹⁹ because the defendant would not be able to present any evidence supporting his petition for release to the trier of fact.   Under Illinois law, an SVP who applies for release has no right to appointment of an independent expert,²⁰ and a summary judgment hearing would preclude him from presenting evidence at a trial.   In Washington, an SVP shall have the right to “have experts evaluate him or her on his or her behalf and the court shall appoint an expert if the person is indigent and requests an appointment.” ²¹  And under Washington law, the trial court may grant a motion for judgment as a matter of law only “[u]pon the conclusion of the evidence in a hearing held pursuant to RCW 71.09.090.” ²²  Thus, unlike Illinois, Washington law does not deprive an SVP of his due process rights to a hearing and to present evidence.

 Skinner also argues that former RCW 71.09.094(1) violates equal protection.   He claims that it requires the respondent to produce a currently available treatment and residence plan while under RCW 71. 05, the involuntary commitment act, the State is required to create an appropriate LRA even where none exists.   We disagree with this contention.

Thorell²³ controls our resolution of this question.   There, the supreme court stated that “[w]e use rational basis review to resolve equal protection claims involving the consideration of LRAs in SVP commitment proceedings.” ²⁴  The court reasoned that treatment issues for SVPs are different from those for individuals under RCW 71.05.   Because there is more danger to society from SVPs, who are highly likely to reoffend, their treatment modalities and term of treatment are different.   LRAs under RCW 71.05 do not consider the unique treatment issues or danger to society posed by SVPs, and the procedures and requirements for LRAs under RCW 71.09 achieve the State's legitimate objectives.   These distinctions between the two separate statutory schemes support our conclusion that there is no equal protection violation here.

 Skinner also argues that former RCW 71.09.094(1) unlawfully discriminates against indigent SVPs because RCW 71.05 does not require the individual to obtain a treatment provider and housing in advance.   We disagree.

 We first note that Skinner fails to point to any evidence in the record to support his claim that his inability to obtain a treatment provider or residence is based on indigency.   We further note that equal protection analysis requires intermediate scrutiny when considering a claim that a law discriminates against the poor.²⁵  Under this standard, “the challenged law must be such as ‘may fairly be viewed as furthering a substantial interest of the State.’ ” ²⁶

Thorell establishes that this challenged law is to be fairly viewed as furthering a substantial State interest.   The requirements of RCW 71.09.092 further the State's interest by assuring that necessary treatment will continue, and that the SVP has a confirmed residence that is safe both for the individual as well as the community.

Thus, even under the heightened level of scrutiny to be applied in the case of indigency, the treatment requirements and increased dangerousness of SVPs differ from those for individuals committed under RCW 71.05.   For these reasons, we conclude there is no equal protection violation on the basis of indigency in this case.

In sum, Skinner fails in his burden to prove beyond a reasonable doubt that former RCW 71.09.094(1) is unconstitutional.

 The State argues that the trial court erred in determining that equal protection considerations required an LRA trial immediately following the commitment trial.   We agree.

The supreme court in Thorell stated that RCW 71.09 “restricts the court ․ from ordering an LRA prior to a hearing under the annual LRA review provision, RCW 71.09.090, following initial commitment,” and that “those who meet the statutory definition and are committed as SVPs are not entitled to consideration of LRAs until their first annual review.” ²⁷  A trial court's authority is limited to that found in the statute, and the court's failure to follow the statute renders the court's action void.²⁸  Because RCW 71.09.090 is mandatory, the trial court was precluded from holding an LRA trial immediately following the commitment trial.   Neither the LRA hearing nor the denial of the State's motion for judgment as a matter of law should have occurred.   Both are incorrect.

We reverse the trial court's ruling determining that former RCW 71.09.094 is unconstitutional and conclude that the verdict on the LRA hearing is vacated.   We otherwise affirm the trial court's decisions.

The balance of this opinion has no precedential value.   Accordingly, pursuant to RCW 2.06.040, it shall not be published.

VOLITIONAL CONTROL

Skinner argues that the court erred when it refused to instruct the jury that the State must prove that his mental condition rendered him unable to control his behavior.   The Thorell court rejected this argument and so do we.

In addressing this issue, the Thorell court noted that the United States Supreme Court in Kansas v. Hendricks29 held that “the civil commitment of an SVP satisfies due process if the SVP statute couples proof of dangerousness with proof of an additional element, such as ‘mental illness,’ because the additional element limits confinement to those who suffer from an impairment ‘rendering them dangerous beyond their control.’ ” 30 Subsequently in Kansas v. Crane,31 the Supreme Court “clarified Hendricks' mental illness element in SVP commitment proceedings as one requiring ‘proof of serious difficulty in controlling behavior.’ ” 32  The Thorell court concluded “that Crane requires a determination that a potential SVP has serious difficulty controlling dangerous, sexually predatory behavior, but does not require a separate finding to that effect.   The United States Supreme Court did not impose a new element in SVP commitment proceedings․” 33

The trial court was not required to instruct the jury that Skinner's mental abnormality rendered him incapable of controlling his behavior.

Skinner also argues post-Thorell that the evidence does not support a finding that he has difficulty controlling his sexually violent behavior.   We disagree.   The evidence adduced at trial shows that Skinner was diagnosed with the mental abnormality of paraphilia (nonconsent/rape), voyeurism, and unspecified personality disorder with antisocial and narcissistic traits.   Skinner has difficulty relating to other people.   His predatory history began in early adulthood, and he admitted to committing seven or eight rapes as well as other crimes.   Skinner testified that he has a “high rape drive.”   His expert testified that Skinner's repeated offenses and convictions showed that he was unable to control his behavior.   And both Skinner and his expert witness testified that he would reoffend without conditions on release.   This evidence is sufficient to establish that Skinner is an SVP.

Further, Skinner argues that the prosecutor's closing argument incorrectly stated the definition of mental abnormality, negating the requirement of serious difficulty controlling his behavior and replacing it with the requirement that the mental abnormality merely affect his behavior in some way.   We disagree.

The Thorell court held that, when the sufficiency of the jury's verdict in a commitment hearing is challenged, the court on review must “analyze the evidence and determine whether sufficient evidence exists to establish a serious lack of control.” 34  A mental abnormality linked to serious difficulty controlling behavior, along with a history of sexually predatory behavior, requires a finding of future dangerousness justifying commitment as an SVP.35

During closing argument, the prosecutor stated that a mental abnormality “doesn't mean that he has no volitional fine control.   It's just that it affects it in some way, and that that predisposes the person to the commission of criminal sexual acts constituting a threat.”   He also argued that “these fantasies were intense and arousing enough to make him disregard the possible consequences,” and that “[t]hese desires he had clearly affected his emotional or volitional capacity.   Those desires were so strong, it was more important to go out and do that than it was to try to keep his family, keep his job, keep himself out of custody.”   The prosecutor did not misstate the law, but explained that the lack of control affected Skinner's behavior in such a serious way that he could not control his tendency to engage in criminal sexual behavior.   The jury instructions properly stated the definition of mental abnormality and the elements of an SVP.

BIFURCATED PROCEDURE

The State argues that the trial court erred by ordering a conditional release trial immediately following the commitment trial. Skinner concedes in a supplemental brief that the court erred when it did so.   But Skinner nevertheless argues that the bifurcated trial procedure either complied or substantially complied with the law.   We do not agree.

Skinner cites language in Thorell that states “LRAs need not be considered at initial commitment and may be considered for the first time during the annual LRA review without violating principles of equal protection.”  36  But in doing so, he ignores other language in that opinion that defeats his argument.

Thorell set out the recent progression of the law in this area.   The court noted that in In re Detention of Brooks,37 our court “held [that] it was ‘rational to impose total confinement before undertaking consideration of whether a less restrictive treatment program is a viable option,’ ” concluding that “the greater dangerousness and different treatment requirements posed by SVPs provided a rational basis for allowing consideration of LRAs only after the SVP had been confined in a secure facility.” 38  Our supreme court reversed, concluding that “there was no rational basis to differentiate in the timing of consideration of LRAs between persons committed under chapter 71.05 RCW and the SVPA.” 39 The Thorell court reexamined the decision in Brooks and held that, under rational basis review, “differentiating between LRAs for those involuntarily committed under chapter 71.05 and the SVPA is a rational means to achieve” the legitimate objectives of protecting society from the heightened risk of sexual violence and providing specific treatment to SVPs.40

Skinner ignores the Thorell court's specific statement that “[t]he SVPA restricts the court ․ from ordering an LRA prior to a hearing under the annual LRA review provision, RCW 71.09.090, following initial commitment.   RCW 71.09.060(4).   Because of this restriction on the trial court, those who meet the statutory definition and are committed as SVPs are not entitled to consideration of LRAs until their first annual review.” 41  The Court states that this furthers the State's legitimate interests and notes that appropriate SVP treatment requires a period of time “in intensive inpatient treatment, which occurs only after commitment” because before that time, inmates are preoccupied with legal challenges or are unwilling to admit fully to criminal history or participate fully in other aspects of treatment.

Without presenting any support from the record, Skinner argues that he fully cooperated in treatment during the year he spent at the Special Commitment Center (SCC) before the commitment hearing.   In fact, Michael Parker, his therapist at the SCC prior to these hearings, testified that Skinner was “cooperative with the beginning phases of treatment and congenial and anxious to please, but not-but somewhat guarded, and not really willing to discuss anything in depth,” and that he never showed any willingness to reveal his past in detail.   This testimony reinforces the reasoning of Thorell that pre-commitment treatment is not likely to be effective enough to warrant an LRA hearing prior to the annual review because prior to commitment, a respondent may not be sufficiently forthcoming regarding treatment.

Skinner also argues that the bifurcated procedure substantially complied with the law.   We disagree.

“[I]t is well recognized that the underlying purpose inherent in the function of judicial interpretation of statutory enactments is to effectuate the objective-often referred to as the intent-of the legislature.” 42  The substantial compliance doctrine is rooted in the judiciary's longstanding effort to give legislative commands a rational interpretation founded upon their design.43  There simply is no reason to apply the doctrine here, where to do so would conflict with the statute as interpreted in Thorell.

SKINNER'S MOTION TO DISMISS

In his original brief, Skinner argued that the trial court erred in denying his motion to dismiss.   He contended that the definition of “sexually violent predator” found in former RCW 71.09.020(1), correctly interpreted, excluded those persons who would not be likely to engage in predatory sex acts if released to an LRA. Because the jury found that the State failed to prove that an LRA is not in Skinner's best interest or would not adequately protect the community, it necessarily found that Skinner was not an SVP, and the trial court should have granted his motion to dismiss.   This argument was rejected in Thorell.

The court in Thorell stated that

[t]he SVPA limits the fact finder at the initial hearing to the consideration of ‘placement conditions and voluntary treatment options that would exist for the person if unconditionally released from detention.’  RCW 71.09.060(1).   This means a fact finder may consider evidence that voluntary treatment on unconditional release is appropriate.   Because this goes to whether the definition of SVP is met, the individual may bring this evidence in defense of commitment.   The SVPA restricts the court, however, from ordering an LRA prior to a hearing under the annual LRA review provision, RCW 71.09.090, following initial commitment.  RCW 71.09.060(4).   Because of this restriction on the trial court, those who meet the statutory definition and are committed as SVPs are not entitled to consideration of LRAs until their first annual review.[[44]

Thus, the only evidence of release that the jury may appropriately consider at the commitment hearing is evidence that a defendant is amenable to treatment on unconditional release.   The jury could not appropriately consider whether Skinner was amenable to treatment under an LRA at the hearing below.   And there was no evidence supporting unconditional release.   The trial court did not err in denying Skinner's motion to dismiss.

ACTUARIAL EVIDENCE

The State argues that the trial court abused its discretion in suppressing evidence of two actuarial instruments, the Violence Risk Assessment Guide (VRAG) and the Sex Offense Risk Assessment Guide (SORAG).   We hold that any error by the trial court was harmless.

The trial court's evidentiary rulings are reviewed for an abuse of discretion. 45

The trial court held that the VRAG and SORAG evidence was inadmissible under ER 403 because they “tend to be tools for predicting general violent behavior” and therefore less probative than other tests introduced because the issue the jury would be asked to decide was whether Skinner was likely to engage in predatory acts of sexual violence, not general violence.   The court held that providing these “numbers” in addition to the actuarial data provided by other tools would create the possibility of confusion and unfair prejudice.

The State argues that this court's holdings in Strauss46 and Thorell affirming the use of actuarial assessments in an SVP proceeding support the argument that the court abused its discretion in excluding such evidence in this case.   The Strauss court held that assessments including the VRAG are admissible under the Frye test and ER 702, not ER 403.   The Thorell court discussed the admissibility of actuarial assessments under Frye, ER 702, 703, and 403, noting that it had already declined to require Frye hearings for such evidence in In re Young47 and In re Detention of Campbell,48 and rejected challenges under ER 403 in Young.   The Court also concluded that arguments regarding this evidence go to weight rather than admissibility “and are to be assessed under ER 702 and ER 703” 49, stating that “[t]he probative value of this testimony is high and directly relevant to whether an individual should be committed as a sexually violent predator” 50 and holding “that actuarial assessments, which satisfy the requirements of ER 403, ER 702, and ER 703 are admissible and not profile evidence.” 51  The Court did not perform any analysis of specific actuarial assessments in its analysis of the individual cases in Thorell.

The trial court's ruling to exclude this evidence is inconsistent with controlling precedent.   However, the error is harmless.   The jury considered other actuarial assessment evidence, and there is no showing that the exclusion of these assessments affected the verdict.52

TESTIMONIAL EVIDENCE

The State argues that the court abused its discretion in suppressing the testimony of H.K.G., a woman Skinner was charged with raping in 1987.   There was no abuse of discretion in this respect.

The trial court held that H.K.G.'s testimony would be more prejudicial than probative and less probative than that of other witnesses.   At argument on the motion, the State conceded that H.K.G. had been unable to describe her attacker with certainty.   Skinner was charged with her rape but this count was dismissed as part of a plea bargain.

The State argues that victim testimony has been held admissible in Young and Turay.   We do not understand that to be a blanket rule.   Rather, the court still has the discretion to determine whether the prejudicial effect of the evidence would outweigh its probative value.   Here, the State was allowed to present the testimony of four other victims.   Particularly in light of this cumulative testimony, the court's ruling that the prejudicial effect would outweigh the probative value was not an abuse of discretion.

The State argues that the court abused its discretion in suppressing the testimony of John Ketchum, who conducted an interview and polygraph examination of Skinner in 1999.   The State argues that Ketchum's testimony was highly probative because Skinner made statements to Ketchum that he had made to no other witness.   The court initially ruled that the State could introduce Ketchum's testimony if he did not mention that the interview was a polygraph test.   The court reconsidered and reversed this ruling.

The court stated that the ruling was based on the inadmissibility of polygraph results and that there was a strong possibility that the jury would understand the interview was really a polygraph test and would assume Skinner failed it because it had been excluded.   In fact, Skinner passed the test.   The effect of the jury's assumption that Skinner had taken and failed a polygraph test would be highly prejudicial.   The probative value of introducing the testimony would be low, despite the State's arguments that there was no other source of the statements.   The State was able to question Skinner directly and impeached his testimony with the interview answers.   This ruling was not manifestly unreasonable.

The State argues that the court abused its discretion in ruling that the State could not question Barbaree about his decision to delete mention of the polygraph test from his report.   Barbaree stated in his cover letter to Skinner's attorneys accompanying the report that he had removed mention of the report because:

you might not want to disclose that record, in which case you would not want it mentioned in mine.   If you do disclose the polygraph report, I would like to make reference to the report in several parts of my report.   I think it would strengthen my report․

The State argues that this was an attempt on Barbaree's part to hide the polygraph report from the State.   Skinner argues that Barbaree was uncertain about whether his report would be admitted directly to the fact finder as evidence, and he did not want to bring inadmissible evidence in through the back door.   The court denied the State's efforts to impeach Barbaree by asking him why he chose to omit any mention of the report.

The court did not abuse its discretion in denying the State the opportunity to cross-examine Barbaree about his decision to delete the information from his report.   The court weighed the State's and Skinner's explanations of Barbaree's intent in deleting the report and was not persuaded that there was any showing of deceitful intent. The court repeatedly expressed concerns about the inadmissibility of reference to the polygraph test.   Barbaree could not explain his reason for deleting the information in a convincing way unless he disclosed that the report was inadmissible because it was a polygraph test.   This ruling was not manifestly unreasonable or based on untenable grounds.

The State moved to prohibit Skinner from referring to sexual conduct of any of the State's witnesses.   The State argued that Skinner should not be allowed to ask one of the victims, E.C., whether she had had a venereal disease.   The State argued that the Rape Shield statute should apply in the SVP trial, despite the civil nature of the trial, and that the testimony would be irrelevant and prejudicial.   Skinner stated that he would not elicit any testimony from the State's witnesses about prior sexual history, and the court granted the State's motion.   The State argues that the court should have granted its motion on the ground that the rape shield statute applied.   Under RAP 3.1, only an aggrieved party can seek review by an appellate court.   A party cannot be considered aggrieved merely because it objects to the reasoning by which the court granted it relief.53  The State cannot prevail on appeal because the court's ruling was based on grounds other than the rape shield statute.

We reverse the trial court's ruling determining that former RCW 71.09.094 is unconstitutional and conclude that the verdict on the LRA hearing is vacated.   We otherwise affirm the trial court's decisions.

FOOTNOTES

1.   Skinner's criminal history began with two rapes during burglaries in 1971.   Each time he has been released from incarceration, he has begun a pattern of burglary and rape or attempted rape.   He committed burglaries at the homes of single women in 1979 and 1981 where he admitted he intended to or attempted to rape the victims.

2.   Former RCW 71.09.020(1) stated that “sexually violent predator” “means any person ․ 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.”

3.   On appeal, the State moved to supplement its designation of clerk's papers.   Because the additional material is irrelevant to our disposition of this case, we deny the motion.

4.   145 Wash.2d 275, 36 P.3d 1034 (2001).

5.   149 Wash.2d 724, 72 P.3d 708 (2003).

6.   (Emphasis added.)

7.   State v. Pauling, 149 Wash.2d 381, 386, 69 P.3d 331 (2003).

8.   In re Detention of C.W., 147 Wash.2d 259, 277, 53 P.3d 979 (2002).

9.   RCW 71.09.092.

10.   Whenever the issue of conditional release to a less restrictive alternative is submitted to the jury, the court shall instruct the jury to return a verdict in substantially the following form:  Has the state proved beyond a reasonable doubt that the proposed less restrictive alternative is not in the best interests of respondent or will not adequately protect the community?   Answer:  Yes or No (emphasis added).

11.   Detention of Petersen v. State, 145 Wash.2d 789, 795, 42 P.3d 952 (2002).

12.   2 Charles Tilford McCormick and John William Strong, McCormick on Evidence, § 336 (5th ed.1999).

13.   Id.

14.   Id.

15.   See In re Dependency of C.B., 61 Wash.App. 280, 282, 810 P.2d 518 (1991).

16.   See 2 Charles Tilford McCormick and John William Strong, McCormick on Evidence, § 336 (5th ed.1999).

17.   Id.

18.   196 Ill.2d 318, 256 Ill.Dec. 813, 752 N.E.2d 1055 (2001).

19.   196 Ill.2d at 340, 256 Ill.Dec. 813, 752 N.E.2d 1055.

20.   196 Ill.2d at 341, 256 Ill.Dec. 813, 752 N.E.2d 1055.

21.   RCW 71.09.090(2) (1998).

22.   RCW 71.09.094(1) (1998).

23.   Thorell, 149 Wash.2d 724, 72 P.3d 708.

24.   Thorell, 149 Wash.2d at 748-49, 72 P.3d 708.

25.   State v. Phelan, 100 Wash.2d 508, 514, 671 P.2d 1212 (1983).

26.   Phelan, 100 Wash.2d at 512, 671 P.2d 1212.

27.   Thorell, 149 Wash.2d at 751, 72 P.3d 708.

28.   State v. Phelps, 113 Wash.App. 347, 354-55, 57 P.3d 624 (2002).

29.   521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997).

30.   Thorell, 149 Wash.2d at 731-32, 72 P.3d 708 (quoting Kansas v. Hendricks, 521 U.S. at 358, 117 S.Ct. 2072).

31.   534 U.S. 407, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002).

32.   Thorell, 149 Wash.2d at 732, 72 P.3d 708 (quoting Crane, 534 U.S. at 413, 122 S.Ct. 867).

33.   Thorell, 149 Wash.2d at 735, 72 P.3d 708.

34.   Thorell, 149 Wash.2d at 736, 72 P.3d 708.

35.   Thorell, 149 Wash.2d at 736, 72 P.3d 708.

36.   Thorell, 149 Wash.2d at 730-31, 72 P.3d 708.

37.   94 Wash.App. 716, 722, 973 P.2d 486 (1999), affirmed in part, reversed in part, 145 Wash.2d 275, 36 P.3d 1034 (2001).

38.   Thorell, 149 Wash.2d at 746-47, 72 P.3d 708.

39.   Thorell, 149 Wash.2d at 747, 72 P.3d 708 (citing Brooks, 145 Wash.2d 275, 36 P.3d 1034).

40.   Thorell, 149 Wash.2d at 750, 72 P.3d 708.

41.   Thorell, 149 Wash.2d at 751, 72 P.3d 708 (emphasis added).

42.   Murphy v. Campbell Inv. Co., 79 Wash.2d 417, 420, 486 P.2d 1080 (1971) (emphasis omitted).

43.   See Murphy, 79 Wash.2d at 421, 486 P.2d 1080.

44.   Thorell, 149 Wash.2d at 751, 72 P.3d 708.

45.   State v. Matthews, 75 Wash.App. 278, 283, 877 P.2d 252 (1994), review denied, 125 Wash.2d 1022, 890 P.2d 463 (1995).

46.   In re Detention of Strauss, 106 Wash.App. 1, 20 P.3d 1022 (2001).

47.   122 Wash.2d 1, 857 P.2d 989 (1993).

48.   139 Wash.2d 341, 355, 986 P.2d 771 (1999), cert. denied, 531 U.S. 1125, 121 S.Ct. 880, 148 L.Ed.2d 789 (2001).

49.   Thorell, 149 Wash.2d at 756, 72 P.3d 708.

50.   Thorell, 149 Wash.2d at 758, 72 P.3d 708.

51.   Thorell, 149 Wash.2d at 758, 72 P.3d 708.

52.   State v. Carleton, 82 Wash.App. 680, 686, 919 P.2d 128 (1996).

53.   City of Tacoma v. Taxpayers of City of Tacoma, 108 Wash.2d 679, 685, 743 P.2d 793 (1987).

COX, C.J.