In re Richard K.

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE ) ) ) ) ) ) ) ) ) ) ) IN RE RICHARD K. DIVISION ONE FILED: 06/17/10 PHILIP G. URRY,CLERK BY: JT 1 CA-MH 09-0073 SP DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Coconino County Cause No. CV 2003-0387 The Honorable Danna D. Hendrix, Judge AFFIRMED David W. Rozema, Coconino County Attorney by Timothy G. McNeel, Deputy County Attorney Attorneys for Appellee Flagstaff H. Allen Gerhardt, Coconino County Public Defender Attorney for Appellant Flagstaff P O R T L E Y, Judge ¶1 of Petitioner Richard K. appeals the trial court s denial his Arizona petition Community for discharge Protection from and civil Treatment commitment Center at the ( ACPTC ) pursuant to Arizona s Sexually Violent Person Act, Arizona Revised Statutes ( A.R.S. ) sections 36-3701 to 3717 (2009). FACTUAL AND PROCEDURAL BACKGROUND ¶2 Petitioner was sentenced to fourteen years in the Arizona Department of Corrections on April 18, 1990, after being convicted of sexual assault. Before he completed his sentence, the State sought to have him civilly committed as a sexually violent person ( SVP ). The trial court found that there was probable cause to believe Petitioner was an SVP, and a jury subsequently found that he was an SVP beyond a reasonable doubt. Petitioner, as a result, was civilly committed to ACPTC in June 2004. 1 ACPTC s Petitioner dismissed his appeal when the State agreed to recommendation for conditional release to a less restrictive alternative ( LRA ) program. ¶3 Petitioner absconded while on an LRS program outing in 2005 and a warrant was issued for his arrest. Petitioner was stopped for a traffic Four years later, violation in arrested on the warrant and extradited to Arizona. Arkansas, Petitioner then filed a petition for discharge from civil commitment. He was examined by two physicians; both had also evaluated him in 1 During 2003 and 2004, Petitioner was evaluated by four physicians and was diagnosed with: paraphilia, NOS-forced sex with non-consenting person; personality disorder, NOS with antisocial features; polysubstance dependence; and alcohol abuse. Both substance abuses were found by at least one physician to be in remission in a controlled environment. 2 the SVP proceeding. After taking evidence, the court denied Petitioner s request for discharge. He appeals that denial, and we have jurisdiction pursuant to A.R.S. § 12-2101 (2003). DISCUSSION ¶4 The SVP Act was designed to protect the public from sexually violent felons by allowing commitment of those persons. the State to seek civil Martin v. Reinstein, 195 Ariz. 293, 299, ¶ 2, 987 P.2d 779, 785 (App. 1999). The State, as a result, must prove beyond a reasonable doubt that the person suffers from a mental disorder that predisposes the person to commit sexual acts to such a degree that he or she is dangerous to others, probable and that violence. that the the person mental will disorder engage in makes it highly acts of sexual In re Leon G., 204 Ariz. 15, 23, ¶ 28, 59 P.3d 779, 787 (2002) (emphasis omitted). [O]nly those persons who lack control because a mental disorder, not a voluntary choice, makes them likely to commit sexually violent acts can be committed. Id. at ¶ 29. ¶5 Once committed, A.R.S. § 36-3714(B) individual to annually challenge his confinement. challenge, the reasonable doubt State that must prove the person s to the mental allows the To defeat the court beyond disorder has a not changed and that the person remains a danger to others and is 3 likely to engage in acts of sexual violence if discharged. § 36-3714(C). ¶6 Petitioner argues that substantial evidence was not presented to establish beyond a reasonable doubt that he meets the statutory contends that requirements there was for a continued definite commitment. change in [the He State expert s] analysis of [Petitioner s] mental disorder because he eliminated [his previous] Axis I diagnosis. ¶7 [T]he findings of the trial court as to the weight and effect of the evidence will not be disturbed unless they are clearly erroneous. P.2d 550, 552 reasonable O'Hern v. Bowling, 109 Ariz. 90, 92, 505 (1973). evidence or If the based findings on a are supported by reasonable conflict of evidence, they will not be disturbed on appeal. Id. at 93, 505 P.2d at 553; accord Moreno v. Jones, 213 Ariz. 94, 98, ¶ 20, 139 P.3d 612, 616 (2006). ¶8 in The State s expert, Dr. DiBacco, diagnosed Petitioner 2004 with an Axis I: paraphilia NOS (not otherwise specified), non-consent; polysubstance dependence in remission because disorder. of detention; and Axis II: antisocial personality In Dr. DiBacco s 2009 evaluation, he again diagnosed Petitioner with an Axis II antisocial personality disorder, but left out the Axis I paraphilia NOS diagnosis. Dr. DiBacco testified that he left out the Axis I diagnosis because some 4 controversy had arisen about the use of the term and because of the dispute about the diagnosis, [he] chose not to use it. ¶9 When Dr. DiBacco was asked if the exclusion of the Axis I diagnosis indicated a change in Petitioner s mental disorder, he testified that there is no change in my diagnosis and there is no disparity. He clarified that even though he made the decision not to give the Axis I diagnosis, Petitioner s antisocial personality disorder remained, and this disorder is in conjunction inability to substantial with control evidence Petitioner sexually his behavior. 2 to support acting out the court s his there Accordingly, and was finding that Petitioner s mental disorder had not changed. ¶10 Petitioner also argues there was insufficient evidence to prove that he is likely to reoffend because likely requires a finding testified of that high he probability. tested Dr. Petitioner s risk DiBacco, to reoffend, Petitioner scored in the high range on both tests. 3 Dr. DiBacco treatment was found an that Petitioner s aggravating factor in failure the however, risk and Moreover, to complete assessment. Although Dr. DiBacco considered Petitioner s age as a mitigating 2 In Dr. DiBacco s 2004 evaluation, he found that both the Axis I paraphilia and Axis II personality disorder were conditions that predisposed Petitioner to sexually act out. 3 The tests included an actuarial prediction instrument referred to as the MnSOST-R, and a risk assessment tool known as the Static-99. 5 factor, 4 he reoffend. found still concluded Petitioner had a high risk to Consequently, the trial court did not err when it Petitioner was likely to engage in acts of sexual violence. ¶11 Petitioner contends that Dr. DiBacco did not completely discredit the testimony of [Petitioner s] witness[,] . . . did not refute the findings of the other doctors whose reports were referenced[,] and nothing refuted the undeniable fact that [Petitioner] lived as a free man without offending for four and one-half years. ¶12 testimony. Here, the trial court had to resolve conflicts in The credibility of the witnesses and the weight and value to be given to their testimony are questions exclusively for the [fact-finder]. State v. Cox, 217 Ariz. 353, 357, ¶ 27, 174 P.3d 265, 269 (2007). The trial court, after considering the diagnosis of both experts, found that [a]fter weighing all of the evidence . . . [Petitioner s] mental disorder has not changed. Similarly, after the court noted that the expert witnesses had opposite opinions on whether Petitioner was likely to reoffend, it found that the [S]tate has proven beyond a reasonable doubt that . . . [Petitioner] remains a danger to others and is likely to engage in acts of sexual violence if 4 Research has shown that when an individual reaches the age of fifty there may be a reduction in the likelihood of sexually acting out. 6 discharged. Finally, the court acknowledged that Petitioner did not reoffend during his hiatus, but found that Petitioner would have been better served if he had completed the civil commitment treatment. Consequently, because there was substantial, reasonable evidence to support the findings made by the trial court, we find no error. O Hern, 109 Ariz. at 93, 505 P.2d at 553. CONCLUSION ¶13 Based on the foregoing reasons, we affirm the trial court s denial of Petitioner s petition for discharge. /s/ ____________________________ MAURICE PORTLEY, Judge CONCURRING: /s/ ________________________________ JOHN C. GEMMILL, Presiding Judge /s/ ________________________________ PATRICIA K. NORRIS, Judge 7

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