Opinion
No. 31144-5-II
Filed: August 3, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Thurston County. Docket No: 95-2-01430-2. Judgment or order under review. Date filed: 11/25/2003. Judge signing: Hon. Gary R Tabor.
Counsel for Appellant(s), Samuel W. Donaghe (Appearing Pro Se), P O Box 88600, Steilacoom, WA 98388.
Peter B. Tiller, The Tiller Law Firm, PO Box 58, Centralia, WA 98531-0058.
Counsel for Respondent(s), Krista Kay Bush, Attorney General, 900 4th Ave Ste 2000, Seattle, WA 98164-1012.
After a bench trial, the court determined that Samuel W. Donaghe was a sexually violent predator (SVP). Donaghe appeals, asserting numerous grounds. We affirm.
Facts
Donaghe has prior sex crime convictions, namely: (1) a 1967 conviction for child molestation involving boys ages 11 through 13, (2) a 1969 conviction for indecent liberties involving a 14-year-old boy, (3) a 1973 conviction for two counts of child molestation of an 8-year-old boy, and (4) a 1975 conviction for oral copulation involving a 13-year-old boy. In 1988, he was convicted of making a false statement on a passport application, a federal offense.
On appeal, Donaghe assigns error to the findings of fact detailing his sex offenses. But he did not object to the admission of this information below. Further, he does not provide argument or citation to authority on appeal. RAP 10.3(a)(5) (appellant's brief should contain `argument . . . together with citations to legal authority'). Thus, Donaghe waived this assignment of error and we do not address it. Smith v. King, 106 Wn.2d 443, 451-52, 722 P.2d 796 (1986).
In 1990, Donaghe filed an Alford plea on charges of second degree rape by forcible compulsion and third degree rape. After he solicited the assault of his rape victim, he pleaded guilty to second degree solicitation to commit assault.
North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970) (holding that `[a]n individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime').
Under RCW 71.09.020(15), second degree rape by forcible compulsion constitutes a sexually violent offense. We cite the current version of the code. Although some subsection numbers have changed, the relevant text remains the same.
Later, Donaghe moved to withdraw his Alford plea under CrR 4.2(f). The trial court denied his motion.
Instead of serving the state sentence, however, officials placed him in federal custody. This occurred because he violated the terms of his 1988 federal probation. He was in federal custody until 1993 or 1994, when he was transferred back to Washington to serve his state sentence for the 1990 crimes.
We cannot discern the transfer date from the record. But the parties agree that Donaghe came into Washington's custody in 1993 or 1994.
Donaghe's sentence for second degree rape by forcible compulsion was to end on May 10, 1995. On that day, the State filed a petition to confine him as an SVP. The petition alleged that (1) Donaghe had been convicted of a sexually violent offense; (2) he suffered from a mental abnormality or personality disorder, making him likely to engage in acts of sexual violence; and (3) less restrictive alternative treatments were not appropriate. After years of pretrial motions, the court set the matter for trial on September 15, 2003.
When the court set the matter, both counsel indicated their readiness to proceed on September 15.
Days before trial, however, Donaghe filed a motion to continue. Counsel explained that he had three cases scheduled to begin trial on September 15, 2003, the start date of Donaghe's trial. Further, he had two other trials scheduled in September and a homicide case in October. Counsel stated that he needed additional time to meet with Donaghe and his expert, Dr. Gerald McCarty. The trial court denied the motion.
Donaghe waived his right to a jury trial. On the morning of trial, counsel renewed his motion to continue. As he explained to the court, `I am not prepared to proceed to trial in this matter.' I Report of Proceedings (Trial) (RP) at 16. Again, the trial court denied the motion. It also denied counsel's motion to withdraw.
At trial, the State called Dr. Irwin Dreiblatt, a psychologist and certified sex offender treatment provider. Dreiblatt testified that the Washington Attorney General's Office asked him to evaluate whether Donaghe suffered from a mental abnormality or personality disorder, making him likely to commit future predatory acts of sexual violence.
Dreiblatt concluded that Donaghe had both a mental abnormality and personality disorder. Regarding the mental abnormality, Dreiblatt diagnosed Donaghe with paraphilia, not otherwise stated, with elements of pedophilia, hebephilia, and rape. He testified that Donaghe had a personality disorder, not otherwise stated, with mixed features including an antisocial personality, and passive-aggressive, narcissistic, and dependent features.
Dreiblatt testified that the qualities of paraphilia are `recurrent, intense, sexually arousing fantasies, sexual urges or behavior that involves non-humans. . . . [such as] pieces of clothing or objects, the suffering of one's self or their partner or children or non-consenting persons.' I RP at 66. Further, these feelings must have `occurred for more than six months, caus[ing] the person either marked distress, interpersonal difficulties or impairment in their life.' I RP at 66.
He defined `pedophilia' as `recurrent, intense sexual interest in prepubescent children.' I RP at 65.
Dreiblatt explained that `hebephilia' is the term for the same type of interest in adolescents. I RP at 65.
He described `rape' as nonconsensual sexual relations with adults. I RP at 65.
Dreiblatt described a `personality disorder' as follows:
an enduring pattern of experiencing the environment and behavior that deviates from cultural expectations in at least two realms — cognitively, how you think; effectively, in your emotions; interpersonally, the way you relate to people; or impulse control, the way you manage your behavior. . . . [T]he personality traits that comprise personality disorders . . . [are] traits that are inflexible and maladaptive and cause subjective distress or personal impairment.
I RP at 89.
As Dreiblatt testified, the essential feature of an `antisocial personality' is `a pervasive disregard in violation of the rights of others. . . . demonstrated in things like sexual abuse, verbal abuse, assault, use of threat[s], [and] intimidation.' I RP at 91-92.
Dreiblatt then discussed his methodology for evaluating future risk for sexual reoffense, noting that he used several actuarial risk assessments to anchor his evaluation. When analyzing Donaghe's risk of sexually violent reoffense, Dreiblatt stated:
In my judgment, Mr. Donaghe has shown a remarkable persistence in his efforts to access minor males to exploit them sexually. And that persistence has occurred despite convictions, criminal interventions, legal barriers, risk to himself. He's hired children and offended against them. He's groomed neighborhood children. He's either initiated or participated in Big Brothers, Boy Scouts and other organizations. He started an exchange student program and raped one of the members. . . . He's . . . very preoccupied with accessing and offending against young males and engages in a lot of planning to access them. These are not impulsive acts. To set up a company that will bring in children that you can involve sexually is very planful activity, and that type of preoccupation and victim planning has been demonstrated to relate to higher recidivism.
I RP at 117-18.
Before cross-examination of Dreiblatt, Donaghe asked the court to appoint a second expert. He claimed that McCarty was not a `viable expert' to rebut Dreiblatt's actuarial testimony. The trial court denied this motion.
Donaghe's counsel cross-examined Dreiblatt. Acting on the court's instructions, counsel cross-examined the doctor for three hours. Initially, counsel did not object to this length of time. When the trial court indicated that the allotted time had expired, counsel noted his objection, but he did not make an offer of proof as to any remaining examination questions.
Periodically throughout the cross-examination, the trial court noted the time remaining.
At the close of the State's case, Donaghe moved to dismiss the petition, alleging a lack of competent evidence. The court denied the motion.
Donaghe then called McCarty to testify on his behalf. McCarty, a psychologist and psychoanalyst, opined that Donaghe did not suffer from a mental abnormality or personality disorder. McCarty criticized Dreiblatt's diagnosis, calling it `hunch-type.' II RP at 388. He also criticized Dreiblatt's use of actuarial instruments, calling them invalid tools to determine recidivism:
I see them as . . . politically correct[,] just like switching homosexuality from being a clinical disorder to being an appropriate behavior. The tests are not based upon neurology, they're not based upon mental status in terms of the workings of the brain, they're not based on any major psychotic disorders or neurotic disorders or other kinds of mental disorders. So, as far as I can see, he doesn't have a risk factor.
II RP at 398. In written findings and conclusions, the trial court determined that Donaghe was an SVP.
Donaghe moved for a new trial, asserting that the trial court abused its discretion in denying his motion for a continuance and terminating Dreiblatt's cross-examination. The trial court denied the motion for a new trial.
Donaghe appeals.
Analysis I. Ineffective Assistance of Counsel
Donaghe contends that he received ineffective assistance of counsel. He asserts two deficient performance claims.
In reviewing an ineffective assistance claim, we engage in a strong presumption of effective performance. Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). A criminal defendant receives ineffective assistance of counsel when counsel's deficient performance results in prejudice. State v. Stenson, 132 Wn.2d 668, 705-06, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998). Deficient performance occurs when counsel's performance falls below an objective standard of reasonableness. Stenson, 132 Wn.2d at 705. Prejudice occurs when, but for the deficient performance, there is a reasonable probability that the outcome would have differed. In the Matter of the Personal Restraint Petition of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998).
Donaghe first asserts that counsel failed to adequately prepare for trial. He points to counsel's `repeated admissions that he was unprepared for trial' and his `abysmally busy' schedule. Appellant's Brief at 27.
Donaghe's argument fails because he cannot identify any prejudice suffered. Instead, he suggests that it is `reasonable for this Court to infer that [counsel's busy schedule] affected his ability to adequately represent Mr. Donaghe, and that his client was prejudiced thereby, meriting reversal.' Appellant's Br. at 27-28.
At a pretrial hearing on August 15, 2003, Donaghe's counsel stated his preparedness for trial. The parties dispute whether this statement is relevant to the ineffective assistance claim. Because Donaghe cannot establish prejudice, the August 15, 2003 statement does not pertain here.
We cannot `infer' prejudice. Instead, our review of the record discloses none. Counsel conducted a thorough cross-examination of Dreiblatt, prepared McCarty in Donaghe's defense, and asserted several proper, strenuous objections at trial.
Second, Donaghe claims ineffective assistance because counsel did not challenge the State's failure to prove a recent overt act. We disagree.
RCW 71.09.020(16) defines a `sexually violent predator' as any person who has been 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.
The State may file a petition alleging that an individual is an SVP if `[a] person who at any time previously has been convicted of a sexually violent offense is about to be released from total confinement on, before, or after July 1, 1990' or `a person who at any time previously has been convicted of a sexually violence offense and has since been released from total confinement and has committed a recent overt act.' RCW 71.09.030. A `recent overt act' is `any act . . . that has either caused harm of a sexually violent nature or creates a reasonable apprehension of such harm.' RCW 71.09.020(10).
Under RCW 71.09.020(15), second degree rape by forcible compulsion constitutes a `sexually violent offense.' By an Alford plea, Donaghe pleaded guilty to this crime on June 15, 1990.
Due process does not require the State to prove a recent overt act if, on the date the petition is filed, the individual is incarcerated for a sexually violent offense or for an act that qualifies as a recent overt act. In the Matter of the Detention of Henrickson v. State, 140 Wn.2d 686, 695, 2 P.3d 473 (2000).
Donaghe testified at trial that the State discharged him from McNeil Island, releasing him to `community custody at Tacoma pre-release.' III RP at 470. He now claims that he received ineffective assistance because `there is a colorable issue of whether his short release to Tacoma pre-release requires the [S]tate to allege and prove a recent overt act.' Appellant's Br. at 28-29.
Regardless of the nature of the `Tacoma pre-release,' the parties agree that on May 10, 1995, the State held Donaghe on his incarceration for second degree rape by forcible compulsion, a sexually violent offense. Under RCW 71.09.030 and Henrickson, nothing required the State to allege and prove a recent overt act. Counsel did not provide deficient performance.
We cannot determine from the record when this `pre-release' occurred.
II. Second Expert
Donaghe next contends that the trial court erred when it denied his motion to appoint a second expert. We disagree.
In an SVP commitment trial, the respondent has the right to be examined by an expert:
Whenever any person is subjected to an examination under this chapter, he or she may retain experts or professional persons to perform an examination on their behalf. When the person wishes to be examined by a qualified expert or professional person of his or her own choice, such examiner shall be permitted to have reasonable access to the person for the purpose of such examination, as well as to all relevant medical and psychological records and reports. In the case of a person who is indigent, the court shall, upon the person's request, assist the person in obtaining an expert or professional person to perform an examination or participate in the trial on the person's behalf.
When a trial court denies an indigent defendant the assistance of an expert, we review for an abuse of discretion. State v. Hermanson, 65 Wn. App. 450, 452, 830 P.2d 674, review denied, 120 Wn.2d 1016 (1992). A trial court abuses its discretion when it bases its decision on untenable grounds or reasons. State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995).
The trial court appointed McCarty, a well qualified and knowledgeable expert. At the time of the motion, McCarty was prepared to testify that Donaghe did not have a mental abnormality or personality disorder and to criticize Dreiblatt's use of actuarial instruments. Further, Donaghe made the motion in an untimely fashion, just before Dreiblatt's cross-examination. Appointment of a second expert was neither necessary nor prudent, given McCarty's expertise and judicial economy concerns. The trial court based its decision on tenable grounds and reasons and acted within its discretion when it denied Donaghe's motion for appointment of a second expert.
III. Volitional Control
Citing Kansas v. Hendricks, 521 U.S. 346, 117 S. Ct. 2072, 138 L. Ed. 2d 501 (1997), Donaghe argues that we should reverse his commitment order absent a finding that he lacked volitional control.
Our Supreme Court addressed this issue in In the Matter of the Detention of Thorell, 149 Wn.2d 724, 731, 72 P.3d 708 (2003), cert. denied, 541 U.S. 990 (2004). After analyzing Hendricks and Kansas v. Crane, 534 U.S. 407, 122 S. Ct. 867, 151 L. Ed. 2d 856 (2002), the Court explained the `volitional control' aspect of an SVP civil commitment:
What is critical to both Hendricks and Crane is the existence of `some proof' that the diagnosed mental abnormality has an impact on offenders' ability to control their behavior. Crane requires linking an SVP's serious difficulty in controlling behavior to a mental abnormality, which together with a history of sexually predatory behavior, gives rise to a finding of future dangerousness, justifies civil commitment, and sufficiently distinguishes the SVP from the dangerous but typical criminal recidivist. It is the finding of this link, rather than an independent determination, that establishes the serious lack of control and thus meets the constitutional requirements for SVP commitment under Hendricks and Crane. Then, if the existence of this link is challenged on appeal, this case specific approach requires the reviewing court to analyze the evidence and determine whether sufficient evidence exists to establish a serious lack of control.
Thorell, 149 Wn.2d at 736. Proof that the person lacks behavioral control is not an element of SVP commitment. Thorell, 149 Wn.2d at 742. Thus, the fact finder need not separately find a `lack of control.' Thorell, 149 Wn.2d at 742. Although the evidence need not demonstrate that the person is completely unable to control his behavior, the jury's finding must indicate that the offender has serious difficulty controlling behavior. Thorell, 149 Wn.2d at 742.
In Thorell, the Court examined the jury instructions. 149 Wn.2d at 742. The trial court provided the standard `to convict' instruction, which read in pertinent part:
To find that the respondent is a sexually violent predator, each of the following elements must be proved beyond a reasonable doubt:
(1) That the respondent has been convicted of or charged with a crime of sexual violence; and
(2) That the respondent suffers from a mental abnormality or personality disorder; and
(3) That such mental abnormality or personality disorder makes the respondent likely to engage in predatory acts of sexual violence if not confined in a secure facility.
Thorell, 149 Wn.2d at 742. The Court concluded that the instruction `requires a fact finder to determine whether the person seriously lacks control of sexually violent behavior' because it requires the jury `to find a link between a mental abnormality and the likelihood of future acts of sexual violence if not confined in a secure facility.' Thorell, 149 Wn.2d at 743.
Here, sufficient evidence establishes Donaghe's serious lack of control. In its conclusions of law, the trial court decided:
2. The crime of Rape in the Second Degree by Forcible Compulsion, for which [Donaghe] was convicted in 1990, is a sexually violent offense, as that term is defined in RCW 71.09.020.
3. Paraphilia, Not Otherwise Specified, with elements of Pedophilia, Hebephilia, and Rape, from which Dr. Dreiblatt testified that [Donaghe] suffers, is a mental abnormality as that term is defined in RCW 71.09.020.
4. Personality Disorder, Not Otherwise Specified, with mixed features, including Antisocial, Narcissistic, and Dependent traits, from which Dr. Dreiblatt testified that [Donaghe] suffers, is a personality disorder, as that term is used in RCW 71.09.020.
5. [Donaghe's] mental abnormality and personality disorder make him likely to engage in predatory acts of sexual violence if not confined in a secure facility.
Clerk's Papers at 247-48. These legal conclusions track the same requirements as the jury instructions in Thorell. Although the trial court did not separately find that Donaghe lacked control, Thorell does not require that. Sufficient evidence shows a link between Donaghe's mental abnormality and the likelihood of future predatory acts of sexual violence.
Accordingly, Donaghe's volitional control argument fails.
IV. Testimony Regarding the 1990 Second Degree Rape Conviction
Donaghe next claims that the trial court erred when it (1) denied his motion to compel the victim's testimony, (2) permitted Dreiblatt to testify regarding the victim, and (3) denied his motion to dismiss. Donaghe concedes that the trial court properly admitted his 1990 Alford plea into evidence. But he argues that the trial court erred because he `was not given an opportunity to produce testimony regarding the Alford pleas and subsequent use of the convictions,' even though this information was relevant. Appellant's Reply Br. at 7.
Donaghe did not include the motion to compel or the accompanying order in the record on review.
In 1990, Donaghe entered an Alford plea to second degree rape by forcible compulsion. An Alford plea does not constitute an admission of guilt. See State v. Morreira, 107 Wn. App. 450, 456, 27 P.3d 639 (2001). With such a plea, the defendant pleads guilty to take advantage of the State's offer because the weight of the evidence would likely result in conviction. Alford, 400 U.S. at 37. As a guilty plea, an Alford plea functions as a conviction. In the Matter of the Personal Restraint Petition of Percer, 150 Wn.2d 41, 49, 75 P.3d 488 (2003) (detailing challenge of defendant's conviction after a guilty plea).
As noted, Donaghe concedes that the trial court properly admitted his Alford plea as a conviction for a sexually violent offense. He asserts, however, that circumstances surrounding the conviction were relevant.
This is a proper concession. Donaghe entered his Alford plea in 1990. By 2003, he could only collaterally attack the conviction through a personal restraint petition. Although he filed a personal restraint petition, it is unclear whether the petition related to the 1990 convictions.
Donaghe's argument fails for several reasons. First, he does not specify the relevance of this evidence. Second, he did not include the motion to compel or the trial court's order in the appellate record. Finally, he did not make an offer of proof, predicting the content of the victim's testimony had the court granted the motion to compel. See II RP at 330-35; ER 103(a)(2) (stating that `[e]rror may not be predicated upon a ruling which . . . excludes evidence unless a substantial right of the party is affected, and . . . the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked').
Both parties discuss Clark v. Baines, 150 Wn.2d 905, 84 P.3d 245 (2004). In Clark, our Supreme Court held that `an Alford plea cannot be used as the basis for collateral estoppel in a subsequent civil action.' 150 Wn.2d at 907. Baines, in effect, collaterally attacked his conviction by Alford plea in a later civil suit. Clark, 150 Wn.2d at 909. Clark does not apply here because Donaghe did not collaterally attack his conviction in the civil commitment trial. Rather, he sought to introduce evidence as to the surrounding circumstances of that conviction. Thus, we review this issue under the rules of evidence and not those of civil procedure.
V. Cross-Examination
Donaghe further argues that the trial court erred when it terminated his cross-examination of Dreiblatt. He asserts that the court deprived him of due process when it denied him an unlimited cross-examination of Dreiblatt.
Due process guarantees the right to a full and fair hearing. State v. Jackson, 75 Wn. App. 537, 543, 879 P.2d 307 (1994), review denied, 126 Wn.2d 1003 (1995). Although the process due depends on the type of proceeding, cross-examination is an integral component of both criminal and civil proceedings. Baxter v. Jones, 34 Wn. App. 1, 3, 658 P.2d 1274 (1983).
The right to cross-examination, however, is not absolute. ER 611. One such limitation is the trial court's control over witnesses:
The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.
ER 611(a). We review asserted violations of ER 611 for the manifest abuse of discretion. State v. Hakimi, 124 Wn. App. 15, 98 P.3d 809 (2004), review denied, 154 Wn.2d 1004 (2005).
Both parties cite Baxter to support their arguments. Baxter involved an unlawful detainer action. 34 Wn. App. at 2. The parties disagreed about the scope of an oral agreement to make repairs and improvements. Baxter, 34 Wn. App. at 2. Baxters' counsel began cross-examining Jones, completing only preliminary questions. Baxter, 34 Wn. App. at 2, 4. Before counsel could pursue the scope of the parties' oral agreement, the trial court terminated cross-examination and announced its ruling. Baxter, 34 Wn. App. at 2-3.
Noting that the trial court had `considerable latitude' to limit the scope of cross-examination, the Baxter court nevertheless held that the trial court erred. 34 Wn. App. at 5. It determined that the scope of the oral agreement was germane to the case and, thus, the cross-examination was relevant to the court's ultimate disposition. Baxter, 34 Wn. App. at 4-5. Further, the trial court's premature termination prevented the Baxters from fully pursuing their theory of the case. Baxter, 34 Wn. App. at 4. Indeed, the abbreviated cross-examination covered only two and one-half pages of the trial transcript. Baxter, 34 Wn. App. at 4. Finally, the trial court's decision appeared motivated by a desire to finish proceedings by the end of the day. Baxter, 34 Wn. App. at 4.
Here, the trial court based its decision on tenable grounds and reasons. Although it limited the length of cross-examination to approximately three hours, Donaghe's counsel had an opportunity to examine Dreiblatt on all germane issues. Donaghe asserts that counsel did not have an opportunity to cross-examine Dreiblatt about the actuarial instruments. Our review of the record discloses otherwise.
Cross-examination on Dreiblatt's actuarial instruments fills 21 pages of the record. When the trial court told counsel that the allotted time had expired, it allowed a few last questions, but counsel stated, `another couple questions would not be of any assistance to me.' II RP at 255. Counsel did not further object or make an offer of proof as to remaining issues. Because Donaghe had a full and fair opportunity to cross-examine Dreiblatt on all relevant issues, his due process argument fails.
Although the length of the record is not dispositive, it is a factor in the analysis. See Baxter, 34 Wn. App. at 4 (noting that the record contained two and one-half pages of cross-examination). Here, counsel's cross-examination about actuarial instruments occupied 21 pages, or approximately one-fifth of the total cross-examination.
VI. Less Restrictive Alternatives
Donaghe next contends that his commitment order must be reversed absent a consideration of less restrictive alternatives (LRAs). Although Donaghe acknowledges that our Supreme Court's holding in Thorell precludes his argument, he asserts that he presents this claim `solely for the purpose of preserving this issue in the event that a Writ for Certiorari is accepted by the United States Supreme Court and the ruling in Thorell is overturned.' Appellant's Br. at 49. The Supreme Court denied that writ and Thorell applies here. 541 U.S. 990.
In Thorell, our Supreme Court held that LRAs need not be considered during the initial commitment trial. 149 Wn.2d at 730. Rather, they may be first considered at the annual LRA review. Thorell, 149 Wn.2d at 730. Donaghe concedes that Thorell precludes his argument. Thus, it fails.
VII. Other Claims
Donaghe argues that the trial court erred when it failed to consider (1) the `staleness' of Dreiblatt's evaluation, (2) Donaghe's age, and (3) the long periods during which he remained conviction-free between 1975 and 1990.
In his assignments of error, Donaghe asserts that insufficient evidence supports his commitment due to the staleness of Dreiblatt's evaluation. This claim goes to weight, not sufficiency. The fact finder weighs evidence. State v. Goodman, 150 Wn.2d 774, 783, 83 P.3d 410 (2004).
As the State correctly notes, Donaghe never asked the trial court to consider his age. When a party fails to raise an issue below, we do not review it on appeal. RAP 2.5(a).
He argues that Dreiblatt did not adequately explain this gap during his testimony. Again, this goes to weight. Goodman, 150 Wn.2d at 783.
We leave credibility determinations, issues of conflicting testimony, and persuasiveness of the evidence to the fact finder. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). We do not disturb these determinations on appeal. Camarillo, 115 Wn.2d at 71.
VIII. Assignment of Error without Argument or Authority
Finally, Donaghe assigns error to the trial court's `failing to dismiss the petition due to incorrect calculation of the termination of [his] federal sentence.' Appellant's Br. at 3. Donaghe failed to preserve this issue for appellate review because he does not provide supporting authority or argument. RAP 10.3(a)(5).
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
MORGAN, A.C.J., and ARMSTRONG, J., concur.