In Re: Ms2009-000010

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

IN RE: MS2009-000010

No. 1 CA-MH 19-0011 SP
FILED 12-10-2019

Appeal from the Superior Court in Maricopa County
No. MS2009-000010
The Honorable Jay M. Polk, Judge

AFFIRMED

COUNSEL

Maricopa County Legal Defender’s Office, Phoenix
By Anne H. Phillips
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Aubrey Joy Corcoran
Counsel for Appellee State of Arizona

MEMORANDUM DECISION

Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Judge James B. Morse Jr. and Judge Diane M. Johnsen joined.
 IN RE: MS2009-000010
Decision of the Court

J O N E S, Judge:

¶1 Appellant challenges the superior court’s order denying his
petition for discharge from the Arizona Community Protection and
Treatment Center (ACPTC) at the Arizona State Hospital (ASH). For the
following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In 2009, the superior court determined Appellant was a
sexually violent person (SVP) and ordered him committed to ACPTC.1 See
Ariz. Rev. Stat. (A.R.S.) §§ 36-3701(7)2 (defining SVP as a person who “[h]as
ever been convicted of . . . a sexually violent offense . . . [and] [h]as a mental
disorder that makes the person likely to engage in acts of sexual violence”),
-3707(B) (authorizing the superior court to commit an SVP to a licensed
facility supervised by ASH). In 2016, Appellant made progress toward his
treatment goals and was transferred to a less restrictive program within
ACPTC. See A.R.S. § 36-3710 (directing conditional release to a less
restrictive alternative if it is in the SVP’s best interest and the public is
adequately protected). Two years later, Appellant petitioned for absolute
discharge. See A.R.S. § 36-3714(A) (authorizing discharge from treatment if
the SVP’s “mental disorder has so changed that the person is not likely to
engage in acts of sexual violence if discharged”).

¶3 At the December 2018 hearing, Sarah Gallimore, Psy.D.,
testified regarding a December 2017 report she had authored
recommending Appellant remain at ACPTC. Dr. Gallimore is an Arizona-
licensed clinical psychologist whose practice focuses on persons who have
committed sexually violent offenses. She is familiar with Arizona’s SVP
statutes and sex-offender treatment programs and has completed
approximately sixty-five SVP evaluations. When evaluating the needs of
an SVP, Dr. Gallimore interviews the person, reviews legal and treatment
records and past diagnoses, and completes various risk-assessment tools to
determine whether the person is making progress in treatment and whether
the person continues to pose a danger to the public. After reviewing all the
information, Dr. Gallimore attributes diagnoses, determines the person’s

1 We view the facts in the light most favorable to upholding the
superior court’s ruling. In re MH 2008-001188, 221 Ariz. 177, 179, ¶ 14 (App.
2009) (citing In re MH 94-00592, 182 Ariz. 440, 443 (App. 1995)).

2 Absent material changes from the relevant date, we cite the current
version of rules and statutes.

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level of risk, and makes a recommendation about the need for continued
treatment.

¶4 Based upon Appellant’s self-reports, a review of his history,
and her prior experience evaluating him for a 2015 report, Dr. Gallimore
testified that Appellant was diagnosed with antisocial personality disorder
and exhibitionist disorder immediately before he was found to be an SVP
and committed to ACPTC in 2009. She then determined Appellant
continued to experience these disorders, and others, in 2017. The antisocial
personality disorder, characterized by aggressiveness and a lack of
empathy, was of particular concern, which, when combined with more
recently identified narcissistic personality and paraphilic disorders,3 left
Appellant “at high risk for committing another sexually violent offense.”
Dr. Gallimore’s evaluation was consistent with three separate actuarial risk
assessment tools that employ different combinations of static, dynamic,
objective, and subjective factors — the Static-99R, the Static-2002R, and the
SVR-20 — each of which placed Appellant at a “well above average risk” of
committing a new sexual offense within five years with a rate of recidivism
several times greater than the average individual convicted of a sexually
motivated offense. Accordingly, Dr. Gallimore opined that absolute
discharge would not be in Appellant’s best interest or adequately protect
the community.

¶5 Brian Abbott, Ph.D., testified on Appellant’s behalf, criticizing
Dr. Gallimore’s use, administration, and interpretation of the SVR-20. He
also pointed out that the version of the SVR-20 Dr. Gallimore administered
to Appellant was outdated, having been replaced three months before her
evaluation of Appellant. Dr. Abbott did not personally evaluate Appellant
but testified, based upon his review of Dr. Gallimore’s report, that the State
had failed to prove that Appellant’s continued commitment at ACPTC was
warranted. Dr. Abbott nonetheless agreed that current evidence of
impulsivity and lack of remorse could demonstrate a person suffered from
antisocial personality disorder, and that these behaviors, in conjunction
with paraphilic conditions, could cause someone to have serious difficulty
controlling sexually violent behavior.

3 Paraphilia is the “expression of the sexual instinct in practices which
are socially prohibited or unacceptable, or biologically undesirable.”
Dorland’s Illustrated Medical Dictionary 1135 (25th ed. 1974).

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Decision of the Court

¶6 After taking the matter under advisement, the superior court
denied the petition for discharge. Appellant timely appealed, and we have
jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and -2101(A)(10)(a).

DISCUSSION

¶7 At a hearing on an SVP’s petition for discharge from
treatment, “[t]he attorney for the state has the burden of proving beyond a
reasonable doubt that the petitioner’s mental disorder has not changed and
that the petitioner remains a danger to others and is likely to engage in acts
of sexual violence if discharged.” A.R.S. §§ 36-3709(A), (C), -3714(A). Here,
the superior court found “beyond a reasonable doubt that: (a) [Appellant]’s
mental disorder has not changed; (b) [Appellant] remains a danger to
others; and (c) [Appellant] is likely[] to engage in acts of sexual violence if
he is unconditionally discharged.” Appellant argues the evidence is
insufficient to sustain these findings in support of continued commitment
at ACPTC. We disagree.

¶8 We will not set aside the findings supporting an order for
involuntary civil commitment “unless they are clearly erroneous.” MH
2008-001188, 221 Ariz. at 179, ¶ 14 (citing MH 94-00592, 182 Ariz. at 443).
“A finding of fact is not clearly erroneous if substantial evidence supports
it, even if substantial conflicting evidence exists.” Ramsey v. Ariz. Registrar
of Contractors, 241 Ariz. 102, 109, ¶ 22 (App. 2016) (quoting Kocher v. Dep’t
of Revenue of Ariz., 206 Ariz. 480, 482, ¶ 9 (App. 2003)). Substantial evidence
is such proof that a reasonable person could accept as adequate and
sufficient to support the facts beyond a reasonable doubt. See State v.
Coulter, 236 Ariz. 270, 275, ¶ 12 (App. 2014) (quoting State v. Gunches, 225
Ariz. 22, 25, ¶ 14 (2010)).

¶9 Appellant argues perceived deficiencies in Dr. Gallimore’s
analysis render her conclusions invalid. He does not challenge her general
competency to testify. See generally A.R.S. § 36-3701(2) (defining
“competent professional” for purposes of Arizona’s SVP statutes); Ariz. R.
Evid. 702 (governing the general admissibility of expert testimony).
Therefore, her testimony “should be tested by the adversary process —
competing expert testimony and active cross-examination — rather than
excluded from [the fact-finder’s] scrutiny for fear that [it] will not grasp its
complexities or satisfactorily weigh its inadequacies.” State v. Bernstein, 237
Ariz. 226, 229, ¶ 18 (2015) (quoting State v. Langill, 945 A.2d 1, 11 (N.H.
2008)); see also State ex rel. Montgomery v. Miller, 234 Ariz. 289, 298, ¶ 20 (App.
2014) (“[C]ross-examination, presentation of contrary evidence, and careful
instruction on the burden of proof are the traditional and appropriate

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means of attacking shaky but admissible expert evidence.”) (citing Ariz. R.
Evid. 702, and quoting Heller v. Shaw Indus., Inc., 167 F.3d 146, 152 (3rd Cir.
1999)).

¶10 Dr. Gallimore testified at length regarding her experience and
qualifications to render an opinion, the information she received from
Appellant over the course of several interviews, and the materials she
reviewed and tests she administered before reaching her conclusions
regarding Appellant’s mental health and propensity to reoffend. See supra
¶¶ 3-4. Although Appellant offered contrary testimony from his own
expert and effectively cross-examined Dr. Gallimore on the details of her
methodology and analysis, the superior court nonetheless found Dr.
Gallimore’s opinions sufficiently reliable and compelling to meet the State’s
burden of proof. See Tyree v. Indus. Comm’n, 159 Ariz. 92, 95 (App. 1988)
(“We must presume that the judge considered . . . all relevant evidence of
record.”) (citing Perry v. Indus. Comm’n, 112 Ariz. 397, 398 (1975)). We will
not reweigh evidence or second-guess credibility determinations on appeal
because “judging the credibility of witnesses and resolving conflicts in
testimony are uniquely the province of the trial court.” In re David H., 192
Ariz. 459, 461, ¶ 8 (App. 1998); see also In re General Adjudication of All Rights
to Use Water in Gila River Sys. & Source, 198 Ariz. 330, 340, ¶ 25 (2000) (citing
Pouser v. Pouser (Estate of Pouser), 193 Ariz. 574, 579, ¶ 13 (1999)).

¶11 The record contains sufficient evidence upon which the
superior court could find, beyond a reasonable doubt, that Appellant’s
continued placement at ACPTC was warranted. We find no error.

CONCLUSION

¶12 The superior court’s order denying Appellant’s petition for
discharge is affirmed.

AMY M. WOOD • Clerk of the Court
FILED: AA

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