     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                         DIVISION ONE
                                                                                                  C)
In re the Detention of Donald Herrick     )       No. 69818-4-1
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STATE OF WASHINGTON,                      )
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                     Respondent,          )                                             —"       cr)rn
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DONALD HERRICK,                           )       PUBLISHED OPINION
                                          )
                     Appellant.           )       FILED: April 3, 2017
                                          )

       VERELLEN, C.J. — Donald Herrick appeals a pretrial order compelling penile
plethysmograph (PPG)and polygraph testing as part of a sexually violent predator

(SVP)civil commitment evaluation. He argues that the statute granting trial courts

discretion to compel PPG testing is unconstitutional on its face and particularly as

applied to him. Herrick fails to meet his burden of proving that RCW 71.09.050(1) is

unconstitutional beyond a reasonable doubt. Herrick also argues that

RCW 71.09.050(1) was unconstitutionally amended in 2012 to permit the court to

compel PPG testing in violation of the single subject rule of article II, section 19 of the

Washington Constitution. But the title of Senate Bill 6493 is general, and rational unity

among the matters within the bill exist, including SVP experts and testing.1 Therefore,

we affirm.



        S.B.6493,62nd Leg., Reg. Sess.(Wash. 2012).
No. 69818-4-1/2

                                            FACTS

       The underlying facts are not in dispute. In 1997, Herrick was convicted of rape in

the first degree. He was released from incarceration for that offense in September

2006. Three months after his release, Herrick stalked a 16-year-old. He pleaded guilty

to voyeurism and was sentenced to 22 months. Following his release, Herrick entered

outpatient sexual deviancy treatment with Northwest Treatment Associates. In March

2009, as part of his treatment, he participated in PPG testing.

       In February and June 2010, Herrick violated his conditions of community

placement by engaging in stalking. He was ordered to serve 120 days' confinement for

the violations.

       In November 2010, in anticipation of Herrick's release, the State petitioned to

civilly commit him as an SVP under chapter 71.09 RCW. The petition identified

Herrick's prior sexually violent offenses and alleged that he suffers from a mental

abnormality and/or personality disorder that makes him likely to engage in predatory

acts of sexual violence if not confined in a secure facility. Prior to filing the petition, the

State's expert, psychologist Dr. Brian Judd, completed a clinical evaluation record

review. Dr. Judd opined that Herrick met the diagnostic criteria for paraphilia not

otherwise specified (nonconsent), alcohol abuse, cannabis abuse, voyeurism

(provisional), and antisocial personality disorder. Of these disorders, Dr. Judd

determined that paraphilia not otherwise specified (nonconsent) met the criteria for

abnormality as defined in chapter 71.09 RCW. His opinion was based on the predicate

offenses, the 2009 PPG testing, which demonstrated a preference for coercive

sexuality, and actuarial testing, which predicted a high risk of recidivism.


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No. 69818-4-1/3

       In January 2011, Herrick stipulated to the existence of probable cause and

agreed to undergo an evaluation by the State's expert.2 He was ordered to be held at

the Special Commitment Center for custodial detention and evaluation.

       Dr. Judd completed an updated clinical evaluation, including an interview of

Herrick and a records review. In April 2012, Dr. Judd provided an addendum, again

opining that Herrick met the definition of an SVP, relying in part on the results of the

2009 PPG, which he characterized as detecting a clear arousal to humiliation rape of an

adult female and rape of a female minor, despite apparent attempts to suppress

arousal.

       In May 2012, defense expert Stephen Jensen, M.A., criticized Dr. Judd's report

as it related to the 2009 PPG. Mr. Jensen concurred with the Northwest Treatment

Associates evaluator, who found the PPG inconclusive:

       The[PPG]assessment was conducted appropriately and followed. ..
       standards. The conclusions by the evaluators appear to accurately reflect
       the assessment data. The data was correctly assessed as "inconclusive,"
       which indicates it is not clinically predictive. Dr. Judd incorrectly
       concluded that this data reflected a preference for aberrant sexual
       behavior, while in reality no preference was clear to any form of sexual
       behavior.131

       In December 2012, the State moved for an order requiring Herrick to submit to a

PPG and a specific-issue polygraph as part of the evaluation in anticipation of trial.

Dr. Judd requested the PPG and a follow-up interview to provide the most current

information possible:


       2 On February 15, 2013, the State filed an amended petition, alleging an
additional recent overt act: that in December 2009, while under conditions of community
placement, Herrick engaged in stalking behaviors towards a female employee of Work
Source.
       3 Clerk's   Papers(CP)at 694.
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No. 69818-4-1/4

             Mr. Herrick has a history of apparently attempting to manipulate
      and suppress his arousal when assessed on the PPG and has previously
      made efforts to obtain information on how to dissimulate on the PPG. As
      such, I believe that independent verification of Mr. Herrick's participation in
      the PPG consistent with the examiner's instructions is necessary to
      ensure that Mr. Herrick does not use countermeasures to minimize
      deviant arousal during the PPG. This can be assessed through a post-
      PPG specific-issue polygraph administered immediately following the
      PPG.[41

Dr. Judd's statement about Herrick's previous "efforts to obtain information on how to

dissimulate on the PPG" referred to an August 2010 recorded jail phone call in which

Herrick asked his girlfriend to research ways to "beat," "cheat," or "win" the PPG.5

       On January 22, 2013, the trial court granted the State's motion to compel PPG

and specific-issue polygraph testing. Herrick moved for discretionary review of the

order. A court commissioner initially denied review, but a panel from this court granted

Herrick's motion to modify the ruling.

                                         ANALYSIS

       Herrick challenges the constitutionality of RCW 71.09.050(1). Constitutional

challenges are questions of law that are reviewed de novo.6 "A statute is presumed

constitutional, and the party challenging it bears the burden of proving it is

unconstitutional beyond a reasonable doubt."7




       4 CP   at 686.
       5 CP   at 701, 703-04; CP at 678, n.19.
       6 State  v. McCuistion, 174 Wn.2d 369, 387, 275 P.3d 1092(2012).
       7 In re Det. of Bergen, 146 Wn. App. 515, 524, 195 P.3d 529 (2008).

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No. 69818-4-1/5

                       RCW 71.09.050(1) Is Constitutional On Its Face

       Herrick argues that RCW 71.09.050(1) is unconstitutional on its face because it

violates the precommitment detainee's substantive due process right to privacy. We
           1
disagree.

       The Washington Constitution places greater emphasis on privacy than the

federal constitution, but the State can reasonably regulate privacy rights to protect the

public.8 Sex offenders have reduced privacy interests because they threaten public

safety.8 In comparison, the public has "[g]rave public safety interests" that outweigh the

"truncated" privacy interests of sex offenders.1° The State's compelling interest in "both

treating sex predators and protecting society from their actions," therefore, is

"irrefutable."11 Herrick recognizes that "pre-commitment detainees retain a limited right

to privacy and due process."12

       Herrick claims that"RCW 71.09.050(1) is unconstitutional on its face because it

provides for compulsory testing simply upon request" by the State and "the statute does

not require a heightened level of scrutiny."13 Herrick misreads the statute.

       RCW 71.09.050(1) provides:

       Within forty-five days after the completion of any hearing held pursuant to
       RCW 71.09.040, the court shall conduct a trial to determine whether the



       8In re Det. of Williams, 163 Wn. App. 89, 97, 264 P.3d 570(2011)(SVP
evaluation under former RCW 71.09.040(2009) did not violate appellant's privacy rights
under Washington Constitution, art. 1, § 7).
       9 Id.

       18   In re Det. of Campbell, 139 Wn.2d 341, 356, 986 P.2d 771 (1999).
       11   In re Det. of Younq, 122 Wn.2d 1, 26, 857 P.2d 989 (1993).
       12 Appellant's   Br. at 10.
       13   Id. at 12, 14; Reply Br. at 1.
                                             5
No. 69818-4-1/6

      person is a sexually violent predator. ... 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 ...
      (c) plethysmograph testing; and (d) polygraph testing.[14]

      Contrary to Herrick's assertions, this statute does not allow PPG testing

whenever requested by the State. The statute applies only in the context of determining

whether the person named in the SVP petition is an SVP. Significantly, this statutory

evaluative process occurs after the completion of the probable cause hearing held

pursuant to RCW 71.09.040 and a finding of probable cause. Also, PPG and polygraph

testing must be "requested by the evaluator," who must:

      (1) Have demonstrated expertise in conducting evaluations of sex
          offenders, including diagnosis and assessment of reoffense risk;

      (2) Have demonstrated expertise in providing expert testimony related to
         sex offenders or other forensic topics; and

      (3) Provide documentation of such qualification J151

Finally, the court, not the State, makes the decision to allow PPG testing, and its

decision is discretionary: "The judge may require the person to complete any or all of

the following procedures or tests."16 Thus, the statue does not give the State unfettered

authority to order PPG testing.

       Herrick relies heavily on United States v. Weber.17 Weber concerned a

challenge to a federal sentence requiring PPG testing as a condition of supervised




       14(Emphasis    added.)
       15 WAC 388-880-033 (rule     establishing evaluator qualifications).
       16   RCW 71.09.050(1).
       17 451   F.3d 552 (9th Cir. 2006).
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No. 69818-4-1/7

release.18 The appellant objected to PPG testing based on "statutory grounds-that such

testing is not reasonably related to the goals of supervised release."18 The Weber court

mentioned "heightened procedural protections" but did not analyze a constitutional

challenge; it interpreted a federal sentencing statute, 18 U.S.C. § 3583.20 Weber held

that before PPG testing can be imposed as a term of supervised release under § 3583,

a district court must make an individualized determination that the testing is

necessary.21 Weber "express[es1 no opinion on the question whether requiring

plethysmograph testing as a condition of supervised release amounts to a substantive

due process violation."22 Although Weber expressed concern about the invasive nature

of PPG testing, it acknowledged that PPG testing "has become routine in the treatment

of sexual offenders and is often imposed as a condition of supervised release."23

       Further,- Herrick fails to demonstrate how Weber, which addressed PPG testing

as a condition of release, is applicable to civil commitment proceedings under chapter

71.09 RCW. RCW 71.09.050(1) explicitly authorizes PPG testing. Herrick fails to

provide authority requiring a court to make an individualized determination regarding the




       18   Id. at 555-56.
       19   Id. at 563, n.14.
       20Id. at 557. Similarly, we do not find any support in United States v. Cheever,
2016 WL 3919792, at *11 (D. Colo. July 18, 2016), aff'd, 2016 WL 7367766 (10th Cir.
Dec. 20, 2016)(applying a federal sentencing statute and refusing to include PPG
testing as a condition of supervised release).
       21   Id. at 569-70.
       22   Id. at 563, n.14.
       23   Id. at 554.
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No. 69818-4-1/8

necessity of PPG testing in SVP civil commitment proceedings.24 Therefore, Weber is

not compelling.

       Herrick fails to carry his burden of showing that RCW 71.09.050(1) is facially

unconstitutional beyond a reasonable doubt.

                  RCW 71.09.050(1) Is Constitutional As Applied To Herrick

       In the alternative, Herrick argues that RCW 71.09.050(1) is unconstitutional as

applied to him. He argues that the "court's blanket finding that Washington courts have

found PPG tests reliable in a forensic setting is not sufficiently specific to justify PPG

testing without reference to the specific individual and the facts of his case."25

       But here, the court found "based on the evidence before the Court, there is good

cause to require" Herrick to submit to PPG and polygraph testing.26 The court explained

its reasons for ordering the testing: (1)the previous PPG test was conducted before the

SVP petition was filed and was conducted for treatment as opposed to evaluation

purposes,(2)the record reflected efforts by Herrick to manipulate the PPG results,

(3)the Supreme Court in In re the Detention of Haloren27 approved the use of a PPG for

diagnostic purposes,(4) the Supreme Court's observation in State v. Riles28 indicates

that the PPG is an effective method for diagnosing sex offenders,(5) the statute




       24 "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 research,
has found none." DeHeer v. Seattle Post-Intelligencer, 60 Wn.2d 122, 126, 372 P.2d
193(1962).
       25   Appellant's Br. at 16.
       28 CP   at 354.
       27 156 Wn.2d      795, 806-07, 132 P.3d 714(2006).
       28   135 Wn.2d 326, 352, 957 P.2d 655 (1998).
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No. 69818-4-1/9

provides for the testing, and (6) Dr. Judd, the State's expert, requested it as part of his

evaluation.29 Accordingly, Herrick's as applied challenge to RCW 71.09.050(1)fails.

                                 Reliability ofPPG Testing

       Herrick challenges the reliability of PPG testing. Although Herrick identifies

criticisms of PPG testing, he does not establish that it is no longer accepted in the

scientific community or authorized in case law.

       Herrick appears to attack the trial court's reliance on Halgren in finding good

cause to order the PPG testing. In Halgren, our Supreme Court unequivocally held that

PPG testing is useful as part of a diagnostic process.3° Herrick argues this court should

reject Halgren because the court relied on case law addressing PPG testing in a

treatment setting rather than in a forensic setting. But we are bound to follow the

express decisions of our Supreme Court.31

       Further, our legislature has expressly authorized the use of PPG testing as part

of the evaluative process.32




       29   Report of Proceedings (Jan. 22, 2013) at 26-30.
       30 Halgren, 156 Wn.2d at 807; see also Riles, 135 Wn.2d at 352
("Plethysmograph testing is regarded as an effective method for diagnosing and treating
sex offenders."); 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")(citing Riles, 135 Wn.2d at 345).
       31   1000 Virginia Ltd. P'Ship v. Vertecs Corp., 158 Wn.2d 566, 590, 146 P.3d 423
(2006).
       32 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).
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No. 69818-4-1/10

       In essence, Herrick alleges the PPG should not be a generally accepted

diagnostic test, but our Supreme Court has recognized that it is. His challenge to the

reliability goes to the weight of the evidence, not its admissibility.33 The weight of

evidence is an issue reserved for the finder of fact.34

       Therefore, Herrick's challenge to the reliability of PPG testing fails.

                                    Article II, Section 19

       Herrick argues Senate Bill 6493 violated the single subject rule of article II,

section 19 of the Washington Constitution. Section 19 reads, in part, "No bill shall

embrace more than one subject." "The purpose of the single subject clause is to

prohibit the enactment of an unpopular provision pertaining to one subject by attaching

it to a more popular provision whose subject is unrelated."35

       In determining whether an enactment relates to one general subject or multiple

specific subjects, Washington courts look to the title of the enactment for guidance.36 "A

general title is broad, comprehensive, and generic as opposed to a restrictive title that is

specific and narrow."37 The title of Senate Bill 6493 is general: "AN ACT Relating to

sexually violent predator civil commitment cases."38




       33 See    In re Det. of Berry, 160 Wn. App. 374, 382, 248 P.3d 592(2011).
       34 State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970(2004).
       35 City of Burien v. Kiga, 144 Wn.2d 819, 824, 31 P.3d 659(2001).

      36 Fibo Foods, LLC v. City of SeaTac, 183 Wn.2d 770, 782, 357 P.3d 1040
(2015); Washington Ass'n of Neigh. Stores v. State, 149 Wn.2d 359, 368, 70 P.3d 920
(2003).
       37 City   of Burien, 144 Wn.2d at 825.
       38 1   SENATE JOURNAL, 62nd Leg., Reg. Sess., at 132(Wash. 2012).
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No. 69818-4-1/11

       Where a general title is used, "[o]nly rational unity among the matters need

exist."39 "Rational unity exists when the matters within the body of the initiative are

germane to the general title and to one another."40 Here, Senate Bill 6493 addresses

several subtopics, but they all relate to the subject of SVP civil commitment cases and

to each other.

       Herrick claims the amendment to RCW 71.09.050(1) granting discretion to trial

courts to order evaluative procedures is unrelated to the other provisions of the bill. We

disagree. Senate Bill 6493 transferred financial responsibility for SVP evaluations from

the Department of Social and Health Sciences(DSHS)to the prosecuting agency and

the Office of Public Defense (OPD), and, at the same time, removed DSHS's rule-

making authority over evaluators and evaluation procedures.41 Who decides to approve

a PPG evaluation is part of that procedure. Because the provision Herrick challenges

was rationally related to the transfer of authority from DSHS to OPD and the

prosecuting agency, it has "rational unity" with the general subject of "sexually violent

predator civil commitment cases."

       Herrick relies on In re Detention of Hawkins.42 Hawkins held that the legislature

could not have intended to include polygraph examinations in the mandatory evaluation

under former RCW 71.09.040(4)(2009) without explicitly saying so.43 But Hawkins did




       39   Fibo Foods, 183 Wn.2d at 782 (citing City of Burien, 144 Wn.2d at 825-26).
       40 Id. at 782-83 (citing City of Burien, 144 Wn.2d at 826).
       41   Effective July 1, 2012.
       42 169 Wn.2d    796, 238 P.3d 1175(2010).
       43   Hawkins, 169 Wn.2d at 803.
                                             11
No. 69818-4-1/12

not address PPG testing and left the door open to other testing methods." In any

event, RCW 71.09.050(1) indisputably shows that the legislature intended to make

polygraph and other types of testing available to evaluators.

       We conclude that RCW 71.09.050(1) was not unconstitutionally amended in

violation of article 11, § 19.

       Affirmed.




WE CONCUR:



  //4447




        44Id. at 803-04 ("This conclusion, as the foregoing analysis makes clear, applies
only to polygraph examinations; the failure of the statute to enumerate other methods of
conducting an examination does not necessarily preclude their use.").
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