In re Dennis H

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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 DIVISION ONE FILED: 05/29/2012 RUTH A. WILLINGHAM, CLERK BY: sls IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE ) ) ) ) ) ) ) ) ) ) ) ) IN RE DENNIS H. No. 1 CA-MH 11-0057 SP DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure Appeal from the Superior Court in Maricopa County Cause No. MS2007-000007 The Honorable Rosa Mroz, Judge AFFIRMED ________________________________________________________________ Thomas C. Horne, Attorney General Phoenix By Aubrey Joy Corcoran, Assistant Attorney General Attorneys for Appellee Bruce Peterson, Maricopa County Legal Advocate By Mary Beth Mitchell, Deputy Legal Advocate and Phoenix Daniel R. Raynak Phoenix Attorneys for Appellant ________________________________________________________________ J O H N S E N, Judge ¶1 Dennis H. absolute discharge appeals from the the denial Arizona of his Community petition for Protection and Treatment Center ( ACPTC ). For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 In 1993, Dennis was convicted of one count of molestation of a child, a Class 2 felony, and sentenced to 15 years imprisonment. Before his release in 2007, the State filed a petition pursuant to Arizona Revised Statutes ( A.R.S. ) section 36-3704 (West 2012) alleging Dennis was a sexually violent person ( SVP ) who should be committed to the ACPTC for supervision and treatment. 1 the superior court found Dennis admitted the allegation, and him to be an SVP and ordered his commitment. ¶3 In February 2011, Dennis petitioned for absolute discharge from ACPTC, asserting that he was no longer an SVP. During a two-day psychologist Dennis s at annual evidentiary the hearing, Arizona examination, State Dr. Nicole Hospital testified that who Huggins, a conducted Dennis s mental disorders had not changed and he remained a danger to others, likely to reoffend if discharged. Dr. Richard Samuels testified on that behalf of Dennis and opined Dennis s condition had changed, that he was no longer at risk of reoffending and that he should be unconditionally discharged from ACPTC. 1 Absent material revisions after the relevant date, we cite a statute s current version. 2 ¶4 On May 9, 2011, the superior court issued a minute entry denying the petition and finding that the State proved beyond a reasonable doubt that [Dennis s] mental disorder has not changed; that he remains a danger to others; and that it is highly probable that [Dennis] violence if he is discharged. will engage in acts of Dennis timely appealed. 2 sexual We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and A.R.S. § 12-2101(A)(10) (West 2012). DISCUSSION ¶5 Dennis contends the superior court erred in denying his petition because Dr. Huggins is not a competent professional as required by A.R.S. § 36-3703 (West 2012). He also argues that her testimony should have been excluded under Arizona Rule of Evidence 702 and Frye v. United States, 293 F. 1013 (1923), and, accordingly, there was not sufficient evidence to support the superior court s findings. We review the superior court s admission of expert testimony for an abuse of discretion. State v. Davolt, 207 Ariz. 191, 210, ¶ 69, 84 P.3d 456, 475 (2004) (in the context of Arizona Rule of Evidence 702). 2 As the court s minute entry was unsigned, Dennis s notice of appeal was premature. This court suspended the appeal and revested jurisdiction in the superior court to allow it to issue a signed order denying Dennis s petition. 3 ¶6 During SVP proceedings, A.R.S. § 36-3703(A) provides that each party may select a competent professional to perform simultaneous evaluations of the person. A competent professional is defined as a person who is: (a) Familiar with the state s sexually violent persons statutes and sexual offender treatment programs available in this state. (b) Approved by the superior meeting court approved guidelines. court as A.R.S. § 36-3701(2) (West 2012). ¶7 Dennis argues Dr. Huggins s testimony did establish that she qualified as a competent professional. not At the hearing, Dr. Huggins answered yes when asked if she was familiar with the Arizona s sexually violent persons statutes and with sexual offender treatment programs that are available in Arizona. On cross-examination, demonstrate some of this knowledge. she was pressed to Although she named eight other treatment programs in Arizona, she was unable to name any of the core classes in those programs or to relate the duration of those programs and said she never had observed any treatment at any of those programs. She testified that she had spoken briefly with one of the doctors from Psychological Consulting Services at a continuing education seminar, but otherwise had never spoken with any doctors from those programs. On redirect, Dr. Huggins described the general type of programming that sex 4 offender treatment programs in Arizona provide and testified that while she keeps a list of treatment programs, she has no need to memorize that list. ¶8 in While Dr. diligent Huggins s cross-examination knowledge, we revealed conclude that weaknesses her overall testimony provided sufficient evidence for the superior court to find she persons was familiar statutes and both with sexual Arizona s offender sexually treatment violent programs. Accordingly, the superior court did not abuse its discretion by determining that Dr. Huggins met the statutory requirements of a competent professional. ¶9 have Dennis next argues that Dr. Huggins s testimony should been excluded under Arizona Rule of Evidence 702. According to Rule 702, 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. 3 The test for whether a person is an expert is whether a jury can receive help on a particular subject from the witness, Webb 3 Arizona Rule of Evidence 702 since was revised. See Order Amending the Arizona Rules of Evidence and Rule 17.4(f), Arizona Rules of Criminal Procedure, Ariz. Sup. Ct. No. R-10-0035, at 64 (Sept. 7, 2011). We refer to the rule in effect at the time of the hearing. 5 v. Omni Block, Inc., 216 Ariz. 349, 352, ¶ 8, 166 P.3d 140, 143 (App. 2007), and [t]he degree of [an expert s] qualification goes to the weight given the testimony, not its admissibility. Davolt, 207 Ariz. at 210, ¶ 70, 84 P.3d at 475. ¶10 Dennis contends that Dr. Huggins did not demonstrate any scientific or specialized knowledge that would qualify her as an expert witness. At the hearing, Dr. Huggins testified that she holds a Bachelor s degree in psychology, a Master s degree in clinical psychology and a Doctorate of psychology. She testified that she had been employed as a psychologist by the Arizona State Hospital for more than two years, conducting and supervising evaluations for the ACPTC. superior court qualified to did not present err expert by finding testimony We hold that the that about Dr. Huggins Dennis s was mental disorders and diagnoses. ¶11 Finally, Dennis argues that Dr. Huggins s testimony should have been excluded because it did not meet the Frye test for admissibility. 4 Pursuant to Frye, 293 F. 1013, and State v. Valdez, 91 Ariz. 274, 371 P.2d 894 (1962), expert testimony that relies on novel scientific tests or techniques is admissible only if the proponent can first demonstrate that the underlying scientific principle from which the expert s deductions are made 4 After the hearings in this matter, the Arizona Supreme Court amended Arizona Rule of Evidence 702 to effectively abandon the Frye test. See supra ¶ 9, n.3. 6 has gained general acceptance in the particular field in which it belongs. State v. Bogan, 183 Ariz. 506, 509, 905 P.2d 515, 518 (App. 1995) (quoting Frye, 293 F. at 1014). are held before trial to resolve acceptance. Id. ¶12 Logerquist v. McVey, In the Frye hearings 196 question Ariz. of 470, general 1 P.3d 113 (2000), our supreme court further clarified the applicability of Frye. the It held that the superior court had improperly utilized Frye test to exclude an expert s proposed testimony on repressed memory, stating expert evidence based on a qualified witness own differently experience, from opinion observation, evidence principles advanced by others. 123. When an expert reaches and based on study is novel treated scientific Id. at 480, ¶ 31, 1 P.3d at a conclusion by inductive reasoning, based on his own observation and experience about human behavior for the purpose of explaining that behavior, Frye s general acceptance test should not be employed to screen such evidence; instead, the validity of the premise is tested by interrogation of the witness. Id. at 490, ¶ 62, 1 P.3d at 133. ¶13 This court examined the appropriate use of the Frye test in the context of an SVP hearing in State ex rel. Romley v. Fields, 201 Ariz. 321, 35 P.3d 82 (App. 2001). In Romley, defendants challenged the admissibility of actuarial data used 7 by experts to develop opinions on recidivism in SVP commitment proceedings, and the superior court granted their request for a Frye hearing. Id. at 323, ¶ 1, 35 P.3d at 84. This court reversed, explaining that the holding in Logerquist reiterated that expert behavioral evidence was beyond Frye s reach. at 327, ¶ 18, 35 P.3d at 88. opinions about the Id. The experts there had formed defendants potential recidivism a behavioral inquiry - based on interpretation of risk assessment tools that do not have the aura of scientific infallibility that DNA or other scientific evidence is perceived to possess. Id. at 328, ¶ 22, 35 P.3d at 89. Accordingly, this court concluded the use of actuarial models by mental health experts to help predict a person s likelihood of recidivism is not the kind of novel applies, should be and scientific [w]e allowed evidence perceive to screen no this or process reason why evidence to the which trial pursuant Frye court to Frye before it is presented to the jury, the ultimate arbiter of truth. ¶14 Id. at 328, ¶¶ 22-23, 35 P.3d at 89. Here, Dennis argues Dr. Huggins s testimony should have been excluded because she did not employ generally accepted methods in conducting her evaluation of Dennis. We hold that the superior court did not err by failing to conduct a Frye hearing. Relying on her experience and education, Dr. Huggins studied Dennis s records and conducted an evaluation of Dennis 8 before developing her professional opinion that Dennis was still a danger to others and his mental disorders had not changed. Dr. Huggins did not rely on scientific tests or instruments that evoked an aura of infallibility her testimony was based on a review of Dennis s records and her own observation and study. Dennis strongly objected to the methodology Dr. Huggins employed in forming her opinions and vigorously attempted to demonstrate on cross-examination clinical assessment, evaluation. that was the not a method she generally employed, accepted guided method of Ultimately, however, the weight the court gave to Dr. Huggins s testimony did not rest on the general acceptance of a scientific theory, but instead on Dr. Huggins s credibility and experience in the field. It was up to the trier of fact to determine the value of Dr. Huggins s methods of interpretation, without regard to Frye. CONCLUSION ¶15 For the foregoing reasons, we affirm the denial of Dennis s petition. /s/ DIANE M. JOHNSEN, Judge CONCURRING: /s/ PATRICIA A. OROZCO, Presiding Judge /s/ JON W. THOMPSON, Judge 9

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