                                                                                             Filed
                                                                                       Washington State
                                                                                       Court of Appeals
                                                                                        Division Two

                                                                                        October 20, 2015



       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
    In re the Detention of:                                        No. 46524-8-II

    DUANE BRENNAN,
                                                             UNPUBLISHED OPINION
                                Appellant.


          LEE, J. — Duane Brennan was found in contempt of court for refusing to comply with an

order compelling penile plethysmograph (PPG) testing as part of a pre-civil commitment trial

evaluation.1 Brennan appeals both the order compelling PPG testing and the order holding him in

contempt. He argues that (1) the order compelling PPG testing violated his constitutional right to

privacy and (2) he received ineffective assistance of counsel. Brennan’s claims fail because (1)

he has limited privacy rights as a sexual offender and (2) he fails to demonstrate that his counsel

was deficient. Thus, we affirm.

                                             FACTS

          The underlying facts are not in dispute. Brennan was convicted of a sexually violent

offense. At the end of his incarceration in November 2012, the State petitioned to civilly commit

Brennan as a sexually violent predator under chapter RCW 71.09. In support of the petition, the

State included Dr. Amy Phenix’s psychological evaluation of Brennan. Dr. Phenix concluded that

Brennan met “the criteria as a sexually violent predator as described in [chapter] RCW 71.09.”



1
    Civil commitment pursuant to chapter RCW 71.09—Sexually Violent Predators.
No. 46524-8-II


Clerk’s Papers (CP) at 137. Dr. Phenix’s report details Brennan’s extensive criminal history,

including Brennan’s own admissions related to his history of violence and sexually assaulting

minors. Brennan reported that “he did not see himself being able to stop his sexually deviant

behavior.” CP at 137.

       In December 2012, Brennan stipulated to the existence of probable cause and agreed to

undergo an evaluation by the State’s expert. In the stipulated order, Brennan agreed, “Consistent

with RCW 71.09.050(1), [he] shall now submit to an evaluation by an expert chosen by the State.

The evaluation may include any of the following procedures or tests if requested by the State’s

expert: . . . Penile plethysmograph testing (PPG).”2 Suppl. CP at 11.

       In November 2013,3 before Brennan’s civil commitment trial, Brennan retained an expert,

Dr. Brian Abbott, to conduct an evaluation. CP at 63. Brennan told Dr. Abbott that “he made up

the extent of his deviant interests in prepubescent children and his history of sexually offending

against children in order to convince [the State’s experts] to recommend commitment because he

was afraid of being released from prison with no resources nor community support.” CP at 63-64;

       In light of Brennan’s statements to Dr. Abbott and in preparation for trial, Dr. Phenix

requested a current evaluation of Brennan, including a polygraph and a PPG. Brennan argued that

the PPG testing was unnecessary because Dr. Phenix had the necessary information that she sought

to obtain through the PPG testing.      Brennan further argued that the stipulated order was




2
 Brennan did not challenge the stipulated order at the time nor does he assign error to it in this
appeal.
3
  While RCW 71.09.50(1) provides for a trial within 45 days of the probable cause determination,
the parties agreed to trial continuances.


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No. 46524-8-II


inconsistent with the statute because the stipulation fails to provide for judicial discretion. VRP at

34-35, 7. Brennan also argued that the PPG testing violated his constitutional rights. Brennan

claimed that “[c]ases where the courts have permitted PPG testing involve the testing as a direct

consequence of a criminal defendant’s conviction or sentence. On the other hand, cases where the

courts have not permitted PPG examinations involve instances, like the case at bar, of civil pre-

trial discovery.” CP at 33 (citations omitted).

        The superior court rejected Brennan’s arguments, finding that PPG testing is authorized by

RCW 71.09.050(1) and that Brennan agreed to the testing. Accordingly, the superior court ordered

Brennan to participate in the testing requested by Dr. Phenix. Brennan refused to comply with the

court’s order. The superior court found Brennan in contempt and stayed the commitment

proceedings until he fully complied with the order compelling PPG testing. Brennan appeals. CP

at 2.

                                            ANALYSIS

        Brennan appeals the order compelling PPG testing and the order finding him in contempt

of the court for refusing to submit to PPG testing.4 He argues that the underlying order compelling

PPG testing is illegal, and therefore, we should reverse the order finding him in contempt. We

disagree.




4
  Brennan assigns error to the superior court’s finding of fact 3 and conclusion of law 2. However,
he does not offer substantive argument or authority regarding the assignments of error. “A party
that offers no argument in its opening brief on a claimed assignment of error waives the
assignment.” Brown v. Vail, 169 Wn.2d 318, 336 n.11, 237 P.3d 263 (2010); RAP 10.3. We do
not address his assignments of error without argument.


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No. 46524-8-II


A.     PRIVACY IMPLICATIONS OF PPG TESTING

       Brennan claims that the superior court violated his substantive due process right to privacy

by ordering him to undergo PPG testing. We disagree.

       RCW 71.09.050(1) authorizes the court to order a sex offender to submit to PPG testing

after probable cause has been determined. Brennan acknowledges that RCW 71.09.050 authorizes

PPG testing.     And Brennan does not appear to challenge the constitutionality of RCW

71.09.050(1). Rather, Brennan appears to challenge the constitutionality of the order requiring

him to undergo PPG testing.

       Brennan contends that “[a]rticle I, section 7 protects the right to privacy with no express

limitations.” Br. of Appellant at 19. Brennan misunderstands his privacy rights.

       Washington recognizes a fundamental right to privacy. In re Det. of Williams, 163 Wn.

App. 89, 97, 264 P.3d 570 (2011). However, in “Washington, sex offenders have reduced privacy

interests because they threaten public safety.” Id.; see also In re Det. of Campbell, 139 Wn.2d

341, 355-56, 986 P.2d 771 (1999), cert. denied, 531 U.S. 1125 (2011). Thus, “[t]he privacy that

Washington’s article I, section 7 protects is not absolute, and the State ‘may reasonably regulate

this right [in order] to safeguard society.’” Williams, 163 Wn. App. at 97 (second alteration in

original) (quoting State v. Meacham, 93 Wn.2d 735, 738, 612 P.2d 795 (1980)). Even Brennan

recognizes the State has a compelling interest both in treating sex offenders and protecting society

from their actions.

       Brennan argues that the PPG testing violated his privacy rights, and “although the superior

court found that such testing is ‘routinely relied upon . . . this does not answer the question of




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No. 46524-8-II


whether such mandatory testing satisfies strict scrutiny.” Br. of Appellant at 23. His argument

fails.

         In Williams, the sexually violent predator argued that the court-ordered, statutorily-

authorized, pre-trial evaluations violated his constitutional right to privacy.5 163 Wn. App. at 97.

The court considered the authorized pre-trial evaluations, which included PPG testing, and

weighed the nature of the testing against the State’s compelling need to “‘safeguard society.’”

Williams, 163 Wn. App. at 97 (quoting Meacham, 93 Wn.2d at 738). The court rejected the

sexually violent predator’s claim, and held that the evaluations, authorized by statute, did not

improperly infringe on the sex offender’s constitutional right to privacy. Williams, 163 Wn. App.

at 97. The court held that “substantial public safety interest outweighs the truncated privacy

interests of the convicted sex offender.” Williams, 163 Wn. App. at 97 (quoting Campbell, 139

Wn.2d at 356). Accordingly, Brennan’s claim that the superior court’s order compelling PPG

testing violated his privacy rights fails because, as in Williams, the “substantial public safety

interest outweighs [Brennan’s] truncated privacy interests.” Williams, 163 Wn. App. at 97.

         Brennan suggests that we follow the analysis in United States v. Weber, 451 F.3d 552 (9th

Cir. 2006). But, Weber did not hold PPG testing unconstitutional.6 Weber, 451 F.3d at 569-70.



5
   In Williams, the court addressed whether the pre-trial mental health examinations
unconstitutionally invaded the sex offender’s privacy. Williams, 163 Wn. App. at 98. Although
the applicable statutes have changed since Williams, PPG testing was among the available testing
both then and now.
6
  Furthermore, the defendant in Weber objected to PPG testing based on “statutory grounds-that
such testing is not reasonably related to the goals of supervised release.” The Weber court stated
that it “express[es] no opinion on the question whether requiring [PPG] testing as a condition of
supervised release amounts to a substantive due process violation.” Weber, 451 F.3d at 563, n.14.



                                                 5
No. 46524-8-II


Instead, Weber held that before PPG testing can be imposed as a term of supervised release, the

trial court must make an individualized determination that the testing is necessary, considering the

constitutional rights of the offender. Weber, 451 F.3d at 569-70.

       Furthermore, Brennan fails to demonstrate how Weber is applicable to the civil

commitment proceedings under chapter RCW 71.09. RCW 71.09.050(1) explicitly authorizes

PPG testing, and Brennan agreed to submit to PPG testing, if requested. Brennan fails to provide

authority requiring a court to make an individualized determination regarding the necessity of PPG

testing in sexually violent predator civil commitment proceedings.7 Thus, Weber is not applicable

to the circumstances in this case.

       Brennan’s claim fails because he does not make considered constitutional arguments that

account for his limited right to privacy, rendering his arguments lacking in relevant authority and

analysis. “Parties raising constitutional issues must present considered arguments to this court”—

“‘naked castings into the constitutional sea are not sufficient to command judicial consideration

and discussion.’” State v. Johnson, 119 Wn.2d 167, 171, 829 P.2d 1082 (1992) (quoting In re

Rosier, 105 Wn.2d 606, 616, 717 P.2d 1353 (1986); State v. Bonds, 174 Wn. App. 553, 567 n.3,

299 P.3d 663, review denied, 178 Wn.2d 1011 (2013). Moreover, Brennan does not make

arguments based on his limited privacy interest. Rather, Brennan’s arguments are based on his

misconception that sex offenders have limitless privacy rights.        Thus, we reject Brennan’s

constitutional challenge.




7
 “Where no authorities are cited in support of a proposition, the court is not required to search out
authorities, but may assume that counsel, after diligent search, has found none.” DeHeer v. Seattle
Post-Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193 (1962).


                                                 6
No. 46524-8-II


B.     RELIABILITY OF PPG TESTING

       Brennan next challenges the superior court’s finding that courts routinely rely upon PPG

testing. We reject Brennan’s challenge.

       Brennan appears to argue that courts should not utilize PPG testing because it is unreliable.

Although Brennan identifies criticisms of PPG testing, he does not establish, or argue, that it is no

longer accepted or authorized.

       Washington courts have held that PPG testing is useful as part of a diagnostic process. In

re the Det. of Halgren, 156 Wn.2d 795, 807, 132 P.3d 714 (2006); State v. Riles, 135 Wn.2d 326,

352, 957 P.2d 655 (1998); cf. State v. Johnson, 184 Wn. App. 777, 780, 340 P.3d 230 (2014)

(holding PPG testing is a valid condition of community placement “‘within the context of a

comprehensive evaluation or treatment process’”) (quoting Riles, 135 Wn.2d at 352); State v.

Castro, 141 Wn. App. 485, 494, 170 P.3d 78 (2007) (holding that PPG testing is a valid sentencing

condition and “is regarded as a ‘treatment device’ for diagnosing and treating sex offenders”).

Furthermore, the legislature has deemed it permissible to utilize PPG testing as evidenced by RCW

71.09.050(1)’s express authorization. RCW 71.09.050(1); see In re Det. of Hawkins, 169 Wn.2d

796, 803, 238 P.3d 1175 (2010) (noting that the legislature deems an evaluation method

permissible when a statute specifically authorizes the method).

       In addition, Brennan’s challenge of a generally accepted test goes to the weight of the

evidence, not the constitutionality of the superior court’s order.8 See In re Det. of Berry, 160 Wn.



8
  To the extent that Brennan asserts that the admissibility of PPG testing at trial affects his
constitutional privacy rights, that argument fails. First, the trial court did not rule on whether the
results of the specific PPG test ordered would be admissible in Brennan’s commitment trial,
expressly reserving the issue for trial. Further, Brennan’s commitment trial has been stayed.


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No. 46524-8-II


App. 374, 382, 248 P.3d 592, review denied, 172 Wn.2d 1005 (2011). The weight of evidence is

an issue reserved for the finder of fact. State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004).

Thus, Brennan’s challenge to the superior court’s finding that courts routinely rely on PPG testing

fails.

C.       LANGUAGE OF THE PPG TESTING ORDER

         Brennan appears to argue that the order compelling PPG testing is unlawful because it

relied on the stipulated order, which “did not track the language of the statute, but inexplicably

removed judicial oversight.” See Br. of Appellant at 13. Brennan’s challenge is to the stipulated

order, which he did not assign error to. He offers no authority for the proposition that he can now

challenge an unappealed stipulated order for the first time with no assignment of error. See RAP

10.3. Brennan also fails to offer argument or authority suggesting that the superior court erred by

relying on an order, to which Brennan agreed and did not challenge. Therefore, we need not

address Brennan’s argument. RAP 10.3; Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d

801, 809, 828 P.2d 549 (1992); DeHeer v. Seattle Post-Intelligencer, 60 Wn.2d 122, 126, 372 P.2d

193 (1962). However, even if we do address the issue, Brennan’s argument fails.

         Brennan contends that the stipulated order was illegal because it not include all of the

language from RCW 71.09.050(1). We disagree.



Therefore, the superior court did not make a decision regarding admissibility that we can review.
Second, Washington courts have held that the results of PPG testing are not subject to a Frye
examination because PPG testing does not involve novel science, and that discussion of results of
PPG testing “as one component among many in diagnosing” a sexual deviant may be admissible.
Halgren, 156 Wn.2d at 806-07. Third, Brennan makes no argument and offers no authority for
the claim that the admissibility of expert discussion about the results of PPG testing controls
whether a sex offender can be ordered to undergo PPG testing prior to a civil commitment trial.



                                                8
No. 46524-8-II


       While the stipulated order does not recite RCW 71.09.050(1)’s language verbatim,

Brennan provides no authority for the proposition that a stipulated order must contain all of the

language of the applicable statute. “Where no authorities are cited in support of a proposition, the

court is not required to search out authorities, but may assume that counsel, after diligent search,

has found none.” DeHeer, 60 Wn.2d at 126.

       Furthermore, Brennan’s argument is factually incorrect. The order compelling PPG testing

mirrors the language of RCW 71.09.050(1). The order compelling PPG testing provides in

relevant part: “The forensic evaluator who is conducting the RCW 71.09.050 evaluation, Dr. Amy

Phenix, has requested [PPG testing] with specific-issue polygraph testing and a sexual history

polygraph of [Brennan] in order to obtain current information for his evaluation.” CP at 4-5

(Finding of Fact 2). The superior court also found that “RCW 71.09.050 grants [the State] the

right to a current evaluation and specifically authorizes the Court to order psychological and

physiological testing if requested by the evaluator, which can include PPG testing and polygraph

testing.” CP at 5 (Conclusion of Law 2). Based on these findings, the superior court ordered

Brennan to undergo the testing requested by Dr. Phenix.

       The superior court’s order reflects both the stipulated order and the language of RCW

71.09.050. RCW 71.09.050(1) provides in relevant part:

       The prosecuting agency shall have a right to a current evaluation of the person by
       experts chosen by the state. The judge may require the person to complete any or
       all of the following procedures or tests if requested by the evaluator: (a) A clinical
       interview; (b) psychological testing; (c) plethysmograph testing; and (d) polygraph
       testing. The judge may order the person to complete any other procedures and tests
       relevant to the evaluation.

The stipulated order provided, in relevant part:




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No. 46524-8-II


       4.     . . . Consistent with RCW 71.09.050(1), [Brennan] shall now submit to an
       evaluation by an expert chosen by the State. The evaluation may include any of the
       following procedures or tests if requested by the State’s expert:

               ....

               c.     Penile plethysmograph testing (PPG);
               ....

       5.     Should the evaluation become stale prior to trial, [Brennan] may be required
       to submit to supplemental evaluation procedures.

Suppl. CP at 11. The stipulated order is consistent with RCW 71.09.050(1). Therefore, Brennan’s

challenge fails.

D.     INEFFECTIVE ASSISTANCE OF COUNSEL

       Brennan argues that “[t]o the extent that counsel agreed to [PPG] testing in the stipulated

order, counsel was ineffective.” Br. of Appellant at 27 (underlining omitted). We disagree.

       To prevail on an ineffective assistance of counsel claim, the defendant must establish that

(1) defense counsel’s performance was deficient and (2) defense counsel’s deficient performance

prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed.

2d 674 (1984). Failure to establish either prong is fatal to an ineffective assistance of counsel

claim. Strickland, 466 U.S. at 700.

       Our review of counsel’s performance is highly deferential, and we strongly presume

reasonableness. State v. Witherspoon, 180 Wn.2d 875, 885, 329 P.3d 888 (2014). To rebut the

presumption of reasonableness, the defendant bears the burden of establishing a lack of any

legitimate trial tactic or strategy. State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260 (2011). “And

to establish prejudice, a defendant must show a reasonable probability that the outcome would




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No. 46524-8-II


have differed absent the deficient performance.” State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d

280 (2002).

       Brennan’s claim of ineffective assistance of counsel fails because Brennan fails to

demonstrate counsel’s performance was deficient. Brennan states, “While there may have been a

valid reason to stipulate to the existence of probable cause in light of the materials submitted by

the State under RCW 71.09.040(2), counsel had no legitimate reason to hand the State’s expert

unfettered discretion to conduct invasive testing.” Br. of Appellant at 28. Brennan’s argument

fails because Brennan fails to demonstrate that agreeing to the statutorily authorized testing

amounts to “unfettered discretion to conduct invasive testing.” Brennan did not receive ineffective

assistance of counsel based on counsel’s agreement to statutorily authorized testing and evaluation

procedures.9 Because Brennan fails to establish that counsel’s performance was deficient, his

claim of ineffective assistance fails.

E.     CONTEMPT

       Brennan asserts that the superior court erred by finding him in contempt. Specifically, he

asserts that “because the underlying order was illegal, this Court should also reverse the contempt

order.” Br. of Appellant at 29. Brennan’s claim that the underlying order is illegal fails.

Therefore, his claim that the contempt order should be reversed also fails. Brennan does not offer

any other argument or authority regarding the contempt order.



9
  Brennan asserts that co-counsel “expressed dismay at the wording of the order and informed the
court he believed the order was contrary to statute and a ‘mistake[].’” Br. of Appellant at 29.
Brennan argued below that the superior court’s ruling compelling PPG testing was “an erroneous
ruling because the [s]tatute is what governs . . . ‘cause it’s based on—it’s not based in the law. It’s
based on a mistaken stipulation.” Verbatim Report of Proceeding at 34. Brennan did not explain
then, nor does he explain now, what a “mistaken stipulation” means.


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No. 46524-8-II


       We affirm.

       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 in accordance with RCW

2.06.040, it is so ordered.



                                                                    Lee, J.
 We concur:



                  Bjorgen, A.C.J.




                     Maxa, J.




                                             12
