204057MAJ
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                          Court of Appeals Division III
                               State of Washington

                            Opinion Information Sheet

Docket Number:       20405-7-III
Title of Case:       In re the Detention of  Monte Hoisington
File Date:           04/29/2004


                                SOURCE OF APPEAL
                                ----------------
Appeal from Superior Court of Asotin County
Docket No:      00-2-00265-9
Judgment or order under review
Date filed:     07/25/2001
Judge signing:  Hon. William D Acey


                                     JUDGES
                                     ------
Authored by Stephen M Brown
Concurring: Frank L. Kurtz
            John a Schultheis


                                COUNSEL OF RECORD
                                -----------------
Counsel for Appellant(s)
            Neil Presley Jr Cox
            Attorney at Law
            924 5th St
            Clarkston, WA  99403-2636

Counsel for Respondent(s)
            Sarah Sappington
            Office of The Atty General
            900 4th Ave Ste 2000
            Seattle, WA  98164-1076


COURT OF APPEALS, STATE OF WASHINGTON, DIVISION III

STATE OF WASHINGTON,

Respondent,

          v.

MONTE HOISINGTON,

Appellant.

                                                 )
                                                 ) No. 20405-7-III
                                                 )
                                                 ) ORDER GRANTING
                                                 ) MOTION TO PUBLISH
                                                 ) COURT'S OPINION OF ) APRIL 29
                                                 ) )

THE COURT has considered respondent's motion to publish the court's opinion
of April 29, 2004, and the record and file herein, and is of the opinion
the motion to publish should be granted.  Therefore,
IT IS ORDERED the motion shall be granted and the opinion filed by the
court on April 29, 2004, shall be modified on page 1 to designate it is a
published opinion and on page 13 by deletion of the following language:
A majority of the panel has determined this opinion will not be
printed in the Washington Appellate Reports, but it will be filed for
public
record pursuant to RCW 2.06.040.

DATED:
          FOR THE COURT:

KENNETH H. KATO
CHIEF JUDGE

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,                             ) No. 20405-7-III
                                                 )
               Respondent,                       ) Division Three
                                                 ) Panel Five
          v.                                     )
                                                 ) PUBLISHED OPINION
MONTE HOISINGTON,                                ) )
               Appellant.                        )
     BROWN, J.--On Monte Hoisington's scheduled release date from
imprisonment for second degree rape, the State petitioned to commit him as
a sexually violent predator (SVP).  A jury found Mr. Hoisington to be a
SVP, and the trial court committed him to the Special Commitment Center
(SCC).  Mr. Hoisington appeals contending (1) recent Supreme Court
precedent mandates remand for consideration of less restrictive
alternatives (LRAs), (2) RCW 71.09.030 is unconstitutional because it
allows the State to file a SVP petition shortly before his release, (3) the
State violated his right to substantive due process by delaying the filing
of the petition, (4) the State violated his right to substantive due
process by denying him treatment during his imprisonment, (5) lack of
sufficient evidence showing he was a risk to re-offend, and (6) the trial
court erred in admitting a psychologist's expert opinion.  We affirm.
FACTS
On August 23, 2000, Mr. Hoisington appeared before the Asotin County
Superior Court for purposes of resentencing on his 1991 second degree rape
and second degree burglary convictions pursuant to this court's opinion
remanding the matter.  In re Pers. Restraint of Hoisington, 99 Wn. App.
423, 993 P.2d 296 (2000).  Concurrently, the State filed a petition
alleging Mr. Hoisington was a SVP who should be committed under chapter
71.09 RCW.  In its certification for determination of probable cause, the
State recounted the facts underlying Mr. Hoisington's convictions for three
sexually violent offenses committed in 1977, 1978, and 1991.
     Regarding the 1991 conviction, the State noted this court had remanded
in 2000 for resentencing to a term of 120 months.  The State alleged Mr.
Hoisington admitted raping a woman with a disability (multiple sclerosis)
in 1991, an uncharged offense.  The State alleged several non-sexual
criminal acts, such as prowling.  The State alleged Mr. Hoisington signed
an agreement to participate in the Sex Offender Treatment Program (SOTP) in
1992, but, because of his remanded sentence, it was not possible to
complete the program before the scheduled date of Mr. Hoisington's release,
August 23, 2000.  Finally, the State alleged psychological evaluations
showed Mr. Hoisington was more likely than not to 'commit a predatory
offense of sexual violence, if not confined to a secure facility.'  Clerk's
Paper's (CP) at 14.
     The superior court ordered Mr. Hoisington held without bail for a 72-
hour probable cause hearing scheduled for August 25, 2000.  Mr. Hoisington
waived his right to a 72-hour hearing and agreed to a rescheduled hearing.
On August 31, 2000, the superior court found probable cause existed to
believe Mr. Hoisington was a SVP and ordered him transported to the Special
Commitment Center (SCC) for purposes of a SVP evaluation.
     On May 23, 2001, the State filed the SVP commitment evaluation
completed by Psychologist Carla van Dam, Ph.D.  Dr. van Dam concluded, 'to
a reasonable degree of psychological certainty, Mr. Hoisington does appear
to meet the statutory criteria to be considered a sexually violent predator
in accordance with RCW 71.09.'  CP at 261.
     Mr. Hoisington moved unsuccessfully to dismiss the petition and/or
exclude the opinion testimony of psychologist Dennis M. Doren, Ph.D., who
issued a June 2001 report determining Mr. Hoisington to be more likely than
not 'to engage in predatory acts of sexual violence . . . if not confined
in a secure facility.'  CP at 354.
     At the commitment trial, T.B. testified Mr. Hoisington raped her in
1977 in Lewiston, Idaho, and was convicted.  He held a knife to her throat.
The trial court entered into evidence the charging documents and judgment
of conviction connected with the rape.
     E.H. testified via videotaped deposition that a man assaulted her in
her Boise, Idaho apartment in April 1991.  She could feel a knife against
her throat.  She asked the intruder if he was going to rape her, and he
said, ''Yes.''  Ex. 14 at 7.  E.H. asked to use the bathroom, and the
assailant helped her walk there because of her multiple sclerosis.  After
E.H. left the bathroom, the man assaulted her on the bed and then
apparently helped her into the shower.  The intruder was gone by the time
she finished her shower.  She did not see her assailant's face, but she
picked out his voice from police recordings.  E.H. could not specifically
remember being raped, but after she underwent a hospital examination she
knew she had been sexually assaulted.  She was not aware of any subsequent
prosecution of the crime.
     Boise Police Detective Mark Ayotte testified he investigated the rape
of E.H. and requested physical evidence from her sexual assault
examination.  He received a request from Asotin County to execute an arrest
warrant on Mr. Hoisington.  From that contact, Detective Ayotte noted
similarities between the Asotin County matter and the rape of E.H.
     The detective then arrested Mr. Hoisington and interviewed him about
the Boise rape, which Mr. Hoisington denied.  After the detective obtained
DNA testing results that did not eliminate Mr. Hoisington as a suspect in
the Boise rape, he conducted a second interview at the Walla Walla
penitentiary.  At the second interview, Mr. Hoisington admitted raping E.H.
and related details as to the rape and the victim's disability.  The
detective also testified that Mr. Hoisington admitted raping another woman
in Ada County, Idaho.  Additionally, the detective stated that E.H.
identified Mr. Hoisington's recorded voice.  The detective also testified
that as far as he knew neither of the Idaho rapes was prosecuted.
     A.H. testified she was confronted by a male intruder in her mother's
bedroom on a June 1991 evening.  The intruder let A.H. go to the bathroom
but watched over her as she used the toilet, telling her to hold her head
down so she could not see him.  The assailant then took her to the kitchen,
put tape over her eyes, and held a knife to her throat as he moved her back
to the bedroom.  The man then raped her repeatedly, vaginally, anally, and
orally.  Afterward, the rapist told A.H. to take a shower and made his
escape while she did so.  A.H. later identified Mr. Hoisington from a photo
lineup.  The trial court admitted into evidence the second amended
information and the second amended judgment and sentence regarding Mr.
Hoisington's conviction for raping A.H.
     The trial court allowed into evidence the information, judgment of
conviction, and amended judgment relating to Mr. Hoisington's rape of a
woman in Nez Perce County, Idaho in 1977.
     Dr. Doren testified that in his professional opinion Mr. Hoisington
suffered from a mental abnormality, paraphilia.  The doctor opined that a
person suffering from Mr. Hoisington's type of paraphilia is predisposed to
committing criminal sexual acts against other people.  Based on his
training, experience, and Mr. Hoisington's records, Dr. Doren gave the
following opinion:
     My opinion to a reasonable degree of professional certainty or
psychological certainty is that Mr. Hoisington does represent a risk that
is, ah, at least more likely than not, ah, my understanding of terms
likely, ah, at least more likely than not to engage in predatory acts of
sexual violence defined by the statute.

Report of Proceedings (RP) (Volume R) at 513-14.

     Dr. Doren further testified that three actuarial assessments factored
into his evaluation of Mr. Hoisington.  According to the doctor, Mr.
Hoisington 'fell into the lower end of high or moderate high range of
risk.'  RP (Volume R) at 524.  But Dr. Doren added that psychologists did
not rely on such tools alone because they do not include other factors
needed for evaluation.  In conclusion, it was Dr. Doren's opinion that Mr.
Hoisington was likely to engage in predatory violent sex crimes if not
confined in a secure facility.
     During Dr. Doren's cross-examination, Mr. Hoisington unsuccessfully
attempted to enter into evidence a proposed contract wherein Mr. Hoisington
promised to abide by certain conditions in return for the Department of
Social and Health Service's (DSHS) promise to drop the SVP petition without
prejudice.  The trial court reasoned the proposed contract was irrelevant
and assumed facts not in evidence.
     At the close of the State's case in chief, the trial court denied Mr.
Hoisington's motion to dismiss for lack of evidence of his alleged risk of
future offenses.
     Mr. Hoisington relied mainly on the testimony of Brian Judd, Ph.D., a
psychologist who testified he was unable to make a diagnosis of antisocial
personality disorder.  On cross-examination, Dr. Judd testified he did not
find Mr. Hoisington's accounts of the rapes credible, and he believed Mr.
Hoisington was not forthcoming.
     On July 25, 2001, the jury found Mr. Hoisington to be a SVP.
Consequently, the trial court ordered Mr. Hoisington's commitment to the
SCC.
     On August 1, 2001, Mr. Hoisington appealed the order of commitment.
This court stayed the matter until the Supreme Court issued its mandate for
In re Detention of Thorell, 149 Wn.2d 724, 72 P.3d 708 (2003).

ANALYSIS
A.  Less Restrictive Alternative Evidence
The issue is whether the trial court erred in not allowing Mr. Hoisington
to present evidence of LRAs, specifically the contract wherein he promised
to undergo sex offender treatment while on conditional release.
     We review the trial court's evidentiary decisions for abuse of
discretion.  State v. Castellanos, 132 Wn.2d 94, 97, 935 P.2d 1353 (1997).
'An abuse of discretion occurs only when no reasonable person would take
the view adopted by the trial court.'  Id. (citing State v. Heulett, 92
Wn.2d 967, 969, 603 P.2d 1258 (1979)).
     At the time of Mr. Hoisington's SVP trial, the LRA issue was
unsettled.  The Supreme Court has since resolved the issue in the State's
favor; LRAs cannot be considered until the first annual review after
commitment.   Thorell, 149 Wn.2d at 752-53.  On this point, the Supreme
Court overruled its holding in In re Det. of Brooks, 145 Wn.2d 275, 292, 36
P.3d 1034 (2001), and reversed the Division I opinion of In re Det. of
Ross, 102 Wn. App. 108, 6 P.3d 625 (2000), reversed sub. nom. In re Det. of
Thorell, 149 Wn.2d 724, 72 P.3d 708 (2003).  Mr. Hoisington relies entirely
on Brooks and Ross; therefore, his argument that the trial court should
have considered LRAs at his commitment trial necessarily fails.
B.  Due Process
     The issue is whether RCW 71.09.030 violates due process because it
provides for filing of the SVP petition when the defendant is 'about' to be
released from prison.
A statute is presumed constitutional and the challenging party bears the
heaviest burden of proving the statute's unconstitutionality beyond a
reasonable doubt.  State v. Ward, 123 Wn.2d 488, 496, 870 P.2d 295 (1994).
Mr. Hoisington falls well short of this standard.  He cites no legal
authorities to support his novel constitutional theory.  Mr. Hoisington
merely speculates things might have turned out better for him had the State
filed the petition much earlier during his incarceration.  We will not
consider fleeting and unsupported assertions of constitutional claims.
See, e.g., State v. Johnson, 119 Wn.2d 167, 171, 829 P.2d 1082 (1992).
Accordingly, Mr. Hoisington's argument is unpersuasive.
C.  Constitutionality of RCW 71.09.030
     The issue is whether RCW 71.09.030 violates due process and is
unconstitutional because it permitted the State to delay filing the SVC
petition until just before Mr. Hoisington's scheduled release.
     Again, Mr. Hoisington fails to brief this complex constitutional issue
sufficiently to allow meaningful review.  See Johnson, 119 Wn.2d at 171.
In any event, '{s}ubstantive due process is violated only by 'arbitrary
conduct shocking to the conscience.''  Estate of Lee v. City of Spokane,
101 Wn. App. 158, 170, 2 P.3d 979 (2000) (citing County of Sacramento v.
Lewis, 523 U.S. 833, 836, 118 S. Ct. 1708, 140 L. Ed 2d 1043 (1998)).  In
this connection, the SVP statute does not require earlier filing of the
petition.  RCW 71.09.030.  Here, the State did exactly what the statute
authorized, and Mr. Hoisington has not cited any verifiable facts showing
he was prejudiced by the filing of the petition as he was 'about' to be
released.  RCW 71.09.030(1).  On this record we cannot say the State's
actions were so arbitrary as to shock the conscience.  Consequently, Mr.
Hoisington has not shown a substantive due process violation.
D.  Delayed Treatment
     The issue is whether due process is violated by the State's failure to
treat Mr. Hoisington in prison before the State filed the SVP petition.
Here, the trial court originally imposed a term of life, which it later
reduced to 30 years.  Much later, the trial court reduced Mr. Hoisington's
sentence to 10 years, which resulted in a release date of August 2000.
Meanwhile, Mr. Hoisington was offered treatment in prison, but, because of
the remand, he would have been released before the treatment could even
begin.
     Apart from an inapplicable quote from a United States Supreme Court
opinion, Jackson v. Indiana, 406 U.S. 715, 738, 92 S. Ct. 1845, 32 L. Ed.
2d 435 (1972), Mr. Hoisington's argument on this issue is utterly devoid of
supporting legal authorities.  He merely speculates treatment in prison
might have allowed him to escape post-prison commitment.  As noted earlier,
we will not consider fleeting constitutional arguments unsupported by legal
authorities.  See Johnson, 119 Wn.2d at 171.
     In any event, the SVP statute does not require the defendant first
undergo treatment in prison.  See generally chapter 71.09 RCW.  Treatment
during prison is currently not a prerequisite to the filing of a SVP
petition.  RCW 71.09.030.  The sole purpose of the commitment trial is to
determine whether the person is a SVP.  RCW 71.09.060(1).  While treatment
in prison is certainly relevant in making that determination, the SVP
statute does not mandate such treatment.  See In re Det. of Ross, 114 Wn.
App. 113, 122-23, 56 P.3d 602 (2002), review denied, 149 Wn.2d 1015 (2003)
(holding that State need not show the alleged SVP had declined to volunteer
for treatment, but that evidence that person volunteered for treatment
would be admissible evidence concerning SVP status).
     Considering all, Mr. Hoisington's argument is not compelling.
E.  Evidence Sufficiency
     The precise issue is whether the evidence was insufficient to show Mr.
Hoisington was likely to re-offend.
     We must determine whether the evidence, viewed in a light most
favorable to the State, is sufficient to persuade a fair minded rational
person that the State has proven beyond a reasonable doubt that Mr.
Hoisington is a sexually violent predator.  In re Det. of Thorell, 149
Wn.2d 724, 744, 72 P.3d 708 (2003).  Among other things, a sexually violent
predator is a person 'likely to engage in predatory acts of sexual violence
if not confined in a secure facility.'  RCW 71.09.020(16).
Mr. Hoisington grounds his insufficient evidence arguments on a self-
serving interpretation of Dr. Doren's testimony.  Dr. Doren relied partly
on certain actuarial instruments showing Mr. Hoisington's chances of
'rearrest' or 'reconviction.'  RP (Volume R) at 521-23.  These instruments
generally indicated odds of 'rearrest' or 'reconviction' were less than 50
percent.  Viewed in isolation and in a light most favorable to Mr.
Hoisington, the actuarial data downplays his propensity to re-offend.  But
the correct standard of review requires us to view the evidence in a light
most favorable to the State.  Thorell, 149 Wn.2d at 744.  When we review
the actuarial data in context with the rest of Dr. Doren's testimony, as
well as the testimony of Mr. Hoisington's own expert, Dr. Judd, the
resulting inferences favor the State.
     First, as noted, the actuarial instruments measure chances of
'rearrest' and 'reconviction,' events that both Dr. Doren and Dr. Judd
recognized as less likely to happen than 'reoffense.'  RP (Volume R) at 521-
23; RP (Volume U) at 761-62.  Accordingly, calculating an accurate estimate
of 'reoffense' required an adjustment of the raw actuarial data.  RP
(Volume S) at 550-52.  Further, Dr. Doren made it abundantly clear that
other factors, several of which related to Mr. Hoisington individually,
supported his ultimate conclusion that Mr. Hoisington was more likely than
not to re-offend.
     Moreover, Dr. Judd doubted Mr. Hoisington's credibility because of the
implausibility of his explanations of the rapes, and his consistent refusal
to submit to polygraph and plethysmograph testing.  That cross-examination
testimony seriously undermined Mr. Hoisington's defense.
     Finally, the other evidence introduced at trial, particularly Mr.
Hoisington's extensive history of violent and predatory rapes, charged and
uncharged, would support a rational fair minded person's ultimate
conclusion that he was likely to re-offend if not confined in a secure
facility.  Given all, the evidence was more than sufficient.
F.  Scientific Reliability
     The issue is whether Dr. Doren's methodology failed to meet the Frye1
standard because it disregarded actuarial results tending to favor Mr.
Hoisington.  Again, the standard of review is abuse of discretion.  State
v. Castellanos, 132 Wn.2d 94, 97, 935 P.2d 1353 (1997).  'An abuse of
discretion occurs only when no reasonable person would take the view
adopted by the trial court.'  Id. (citing State v. Huelett, 92 Wn.2d 967,
969, 603 P.2d 1258 (1979)).
     Mr. Hoisington misapprehends Dr. Doren's methodology.  Dr. Doren did
not disregard the actuarial data.  He included those findings within the
mosaic of factors used to determine Mr. Hoisington's propensity to re-
offend.  Dr. Doren necessarily took into account structural shortcomings in
the actuarial data, which estimated 'rearrest' or 'reconviction,' not
'reoffense,' the relevant term for SVP purposes.  RP (Volume R) at 521-23.
See RCW 71.09.060(1).
Because a greater chance of 'reoffense' than 'rearrest' or 'reconviction'
exists, Dr. Doren recognized the raw data underestimated future
dangerousness and thus considered a multitude of other factors, including
Mr. Hoisington's extensive history of sexually violent acts.  RP (Volume S)
at 550-52.  Dr. Doren's approach, which is essentially a clinical approach
incorporating actuarial data as one of its factors, is consistent with
practices approved by the Supreme Court.  See Thorell, 149 Wn.2d at 756
('Based on our established precedent, we reiterate that the Frye standard
has been satisfied by both clinical and actuarial determinations of future
dangerousness.').  Consequently, the trial court did not abuse its
discretion in admitting Dr. Doren's testimony.
     Affirmed.

                                        Brown, J.

WE CONCUR:

Schultheis, J.

Kurtz, J.

     1 Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923).
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