COURT OF APPEALS OF VIRGINIA

Present: Judges Causey, Lorish and White

Argued at Salem, Virginia

WILL LEE CARTER

MEMORANDUM OPINION* BY

v. Record No. 0363-23-3 JUDGE KIMBERLEY SLAYTON WHITE

APRIL 30, 2024

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY

Stacey W. Moreau, Judge

James C. Martin (Martin & Martin Law Firm, on brief), for 

appellant.

Amanda L. Lavin, Assistant Attorney General (Jason S. Miyares, 

Attorney General; M. Nicole Wittmann, Deputy Attorney General; 

Susan Barr, Senior Assistant Attorney General; Timothy M. 

Davidson, Assistant Attorney General, on brief), for appellee.

Will Lee Carter appeals the trial court’s judgment finding that he remains a sexually violent 

predator under Code § 37.2-910 and recommitting him to the custody of the Department of 

Behavioral Health and Developmental Services (the Department) for treatment. Carter argues that

various provisions of the Sexually Violent Predator Act (SVPA) are unconstitutional facially and as 

applied to him. Because Carter fails to show how the SVPA is unconstitutional as applied to him 

and procedural defaults prevent us from addressing his remaining assignments of error, we affirm 

the trial court’s judgment.

BACKGROUND

When a respondent appeals a trial court’s judgment that he is a sexually violent predator, 

“we view the facts in the light most favorable to the Commonwealth, the prevailing party below.” 

* This opinion is not designated for publication. See Code § 17.1-413(A).

UNPUBLISHED
- 2 -

Shivaee v. Commonwealth, 270 Va. 112, 127 (2005). “We also accord the Commonwealth the 

benefit of all inferences fairly deducible from the evidence.” Id. (citing Stanley v. Webber, 260 Va. 

90, 95 (2000)).

In 2013, Will Lee Carter was convicted of aggravated sexual battery. The court 

sentenced him to 20 years’ incarceration, with 10 years suspended. In January 2021, the 

Commonwealth petitioned the trial court to civilly commit Carter under the SVPA.

Before trial, Carter moved the trial court to declare the SVPA unconstitutional alleging 

that the Act violated his rights to due process, equal protection, freedom of religion, and counsel, 

and his right against self-incrimination because it required the use of polygraphs and penile 

plethysmographs. He asserted that any conditional release under the SVPA hinged on 

participating in a “full disclosure” polygraph, where he would have to disclose everything he had

ever done sexually. He also argued that penile plethysmographs required him to view 

pornography.

Carter further contended that the SVPA unconstitutionally prohibited him from asserting 

his actual innocence to the underlying offense. Yet he acknowledged that the SVPA did not 

preclude him from testifying that he was innocent. He acknowledged that the statute barred 

procedural attacks on the underlying conviction in the litigation on the Commonwealth’s petition 

under the SVPA. Finally, Carter argued that the SVPA unconstitutionally permitted his 

confinement beyond the term of his underlying sentence and prohibited his conditional release 

outside the Commonwealth, in violation of the Commerce Clause and his due process and equal 

protection rights. The trial court denied Carter’s motion.

Following the trial, a jury unanimously found that Carter: 1) had been convicted of a 

sexually violent offense as defined by Code § 37.2-900; 2) has a mental abnormality and/or 
- 3 -

personality disorder1according to Code § 37.2-900; and 3) finds it difficult to control predatory 

behavior because of mental abnormality and/or personality disorder and thus is likely to engage 

in sexually violent acts. Furthermore, the court found that “alternatives to involuntary secure 

inpatient treatment and hospitalization are unsuitable and that there is no less restrictive 

alternative to involuntary treatment and hospitalization.”

Carter petitioned the Supreme Court for an appeal of the trial court’s judgment.2 The 

Supreme Court refused the petition and denied the subsequent petition for rehearing.

Carter’s current appeal arises from his annual review on February 14, 2023, where the 

circuit court found that Carter remains a sexually violent predator who does not meet the criteria 

for conditional release under Code § 37.2-912. Thus, the court declared him a sexually violent 

predator under Code § 37.2-910 and recommitted him to the custody of the Department for 

inpatient treatment at the Virginia Center for Behavioral Rehabilitation (VCBR).

Before the trial court was Carter’s updated annual review report containing the finding

that Carter had made no additional treatment gains and continues to need intensive inpatient 

treatment and indicating that conditional release was not recommended. More specifically, the 

report set forth that although Carter cooperated with weekly program treatment sessions and 

attended every session, Carter did not complete annual paperwork for the quarter to update his 

records—the only formal assignment given to Carter. The report did not indicate any evidence 

of physical aggression or sexual acting out towards staff or residents and no violations by Carter 

of the law or facility rules or policies related to safety. However, according to the report, Carter 

1 Craig King, a licensed clinical psychologist, opined that Carter “may meet” the 

diagnostic criteria for antisocial personality disorder.

2 When Carter filed that notice of appeal, this Court did not have jurisdiction over 

Carter’s appeal. This Court’s jurisdiction was expanded effective January 1, 2022, to encompass 

this appeal. See Code § 17.1-405; 2021 Va. Acts Spec. Sess. I ch. 489.
- 4 -

denied the need for treatment as well as the desire to participate in core and module groups and, 

at the time of the report, had not agreed to return to groups for the Winter 2023 quarter.

During the annual review hearing, Carter moved for the trial court to declare SVPA 

unconstitutional for the same reasons3contained in written motions he filed during the 

adjudication of the Commonwealth’s original commitment petition and previously argued at the 

trial and prior motions hearing in 2021. Regarding polygraphs, the Commonwealth pointed out 

that there are no facts and no testimony from Carter showing that polygraphs were in fact 

required to get out of VCBR; Carter therefore did not meet the burden for a Fifth Amendment 

claim. The Commonwealth also argued that Carter’s motion was not ripe because Carter had not 

been “required to either take a polygraph in the VCBR or take a polygraph on conditional 

release.” At the hearing, the Commonwealth proffered, without objection, evidence of speaking 

with VCBR evaluators who stated that respondents are “not required to make any admissions to 

stay on conditional release or to . . . receive that recommendation.” Regarding the 

plethysmograph, the Commonwealth proffered an email from a test administer saying that 

3 Those reasons were stated as follows: SVPA 

violates a respondent’s constitutional rights, both inherently and 

“as applied,” specifically: 

[t]he Right of Procedural Due Process . . . under the Fifth 

Amendment to the United States Constitution, as incorporated by 

the Fourteenth Amendment, and under the “Law of the Land”

Clause of Article I § 8 and the Due Process Clause of Article I § 11 

of the Virginia Constitution; 

[t]he Right of Substantive Due Process under the 

Fourteenth Amendment to the United States Constitution, and

under the “Law of the Land” Clause of Article I § 8 and the Due 

Process Clause of Article I § 11 of the Virginia Constitution; 

[t]he Right to Equal Protection under the Fourteenth 

Amendment to the United States Constitution; and 

[t]he Commerce Clause of the United States Constitution, 

Article I, Section 8, Clause 3, as being unduly restrictive of the 

personal interstate movement of persons who have been declared 

SVP’s merely because they are from another State.
- 5 -

respondents do not have to look at “naked or erotic bodies.” The Commonwealth argued that

Carter could not claim Fifth Amendment violations because Carter had not been asked to 

undergo a penile plethysmograph and Fifth Amendment rights are not self-executing.

At the motions hearing, the parties asked for clarity on Code § 37.2-901. The 

Commonwealth stated: 

the Code pretty clearly says that the respondent is not allowed to 

attack the validity of his past convictions, but unfortunately the 

Code doesn’t become more specific about that and there’s no 

controlling case law, so does not attacking the validity mean he 

cannot make a procedural attack, or does it mean he can’t deny 

that, that the thing ever happened?

The court clarified that Carter could deny the allegations but could not go back and try to 

retry the criminal case itself. The parties agreed on that interpretation. Accordingly, Carter had 

“no objection” to an order that prohibited him from “attacking the prior convictions, procedurally.” 

Later, Carter acknowledged that he did not seek to “retry the criminal case” or otherwise attack his 

underlying conviction.

The trial court denied the motions, finding that Carter “really need[s] to get back in with 

[his] treatment” and “ha[s] not completed the VCBR’s three phase program” and that an 

outpatient program would be inappropriate because Carter has not been willing to work while 

inpatient. Another annual review was set for February 9, 2024.

On appeal, Carter argues that the SVPA is unconstitutional because it (1) requires 

polygraphs, (2) requires penile plethysmographs, (3) “forbids” his assertion of “actual innocence” 

on the underlying offense while permitting the Commonwealth to introduce evidence of 

unadjudicated conduct, (4) permits his confinement beyond the term of his sentence on the 

underlying conviction, and (5) prevents his conditional release outside the Commonwealth,

summarily asserting that the above issues violate the Commerce Clause, as well as his rights to 
- 6 -

procedural and substantive due process, equal protection, counsel, freedom of religion, and a 

compulsory process for obtaining witnesses, and his right against self-incrimination.

ANALYSIS

Carter’s arguments that the SVPA is unconstitutional present questions of law subject to 

de novo review. Shivaee, 270 Va. at 119. “We also accord the Commonwealth the benefit of all 

inferences fairly deducible from the evidence.” Id. at 127 (citing Stanley, 260 Va. at 95). When 

a respondent appeals a trial court’s judgment that he is a sexually violent predator, the trial 

court’s findings of fact will be reversed only if they are plainly wrong or without evidentiary 

support. Commonwealth v. Squire, 278 Va. 746, 749-50 (2009) (citing Higginbotham v. 

Commonwealth, 216 Va. 349, 352 (1975)).

“Although civil in nature, a statutory scheme such as the SVPA that permits an 

involuntary commitment process to be initiated by the Commonwealth is subject to the rule of 

lenity normally applicable to criminal statutes and must therefore by strictly construed.” Hood v. 

Commonwealth, 280 Va. 526, 540 (2010) (quoting Townes v. Commonwealth, 269 Va. 234, 240 

(2005)).

I. Polygraphs, Penile Plethysmographs, and Conditional Release Outside the Commonwealth

“An appellant can only mount a successful facial challenge to a statute by showing first that 

the statute in question is unconstitutional as applied to him and that the statute in question would not 

be constitutional in any context.” Toghill v. Commonwealth, 289 Va. 220, 228 (2015) (citing 

County Ct. of Ulster Cnty. v. Allen, 442 U.S. 140, 154-55 (1979)). Accordingly, “if there is no 

constitutional defect in the application of the statute to a litigant, he does not have standing to 

argue that it would be unconstitutional if applied to third parties in hypothetical situations.” Id.

(quoting Allen, 442 U.S. at 155). Indeed, “[e]mbedded in the traditional rules governing 

constitutional adjudication is the principle that a person to whom a statute may constitutionally 
- 7 -

be applied will not be heard to challenge that statute on the ground that it may conceivably be 

applied unconstitutionally to others, in other situations not before the court.” Broadrick v. 

Oklahoma, 413 U.S. 601, 610 (1973).

4

Carter’s arguments that the SVPA is unconstitutional regarding polygraphs and penile 

plethysmographs is meritless because the record contains no evidence that Carter was required, 

or even asked, to participate in a polygraph or penile plethysmograph examination. In fact, 

Dr. Demetria Brown’s report affirmatively indicated that Carter had not been asked to participate 

in a polygraph examination. Moreover, there is no evidence that Carter was denied a conditional 

release or had suffered any negative consequence for “refusing” to participate in either 

examination. Without such evidence, Carter cannot demonstrate that those provisions of the 

SVPA were unconstitutional as applied to him, so he cannot argue that they would be 

unconstitutional in some hypothetical situation not before this Court.

Carter reads the SVPA to require full disclosure polygraphs for conditional release 

without any specific language supporting that interpretation. However, the statute allows for a

conditional release plan that does not require polygraph examinations because polygraph 

examinations are only part of the required regular psychological monitoring of the respondent “if 

called for” and “if necessary.” Code § 37.2 910(D). The SVPA further provides that, when 

determining whether there are “possible alternatives to commitment, the court shall consider . . . 

whether any such alternatives will accommodate needed and appropriate regular psychological 

or physiological testing, including but not limited to, penile plethysmograph testing or sexual 

interest testing.” Code § 37.2-908(E) (emphasis added). Nor does Carter seem to give any

4 This Court notes that there is an exception to this general rule for challenges based on 

facial overbreadth challenges. See Singson v. Commonwealth, 46 Va. App. 724, 745 (2005) 

(quoting Broadrick, 413 U.S. at 615). However, Carter has not argued that the SVPA violates 

the First Amendment speech clause or is so overbroad as to chill speech, so the exception is not 

applied.
- 8 -

evidence about how the polygraph is administered or used beyond stating that a polygraph of 

some nature is used as part of the conditional release plan. As such his allegation of a 

constitutional violation requires us to speculate about VCBR’s practices, but that is outside this 

Court’s mandate as we are limited by the record. Thus, Carter’s argument that the SVPA 

unconstitutionally mandates those examinations is meritless.

Similarly, Carter fails to show that the SVPA is unconstitutional as applied to him regarding 

the use of penile plethysmographs. There is no evidence that Carter had been asked or required to 

participate in such an examination or suffered any negative consequences for refusing to do so. 

Carter also did not present evidence that participation in the plethysmograph would subject Carter to 

viewing pornography as alleged. Thus, Carter’s argument that the SVPA unconstitutionally 

mandates this examination is meritless.

Carter generally argues that by not permitting his conditional release outside the 

Commonwealth, the SVPA violates the Commerce Clause and his rights to procedural and 

substantive due process and equal protection under the federal and state constitutions. Nowhere 

does his brief explain the nature of his constitutional rights under either the U.S. Constitution nor 

the Virginia Constitution, how they apply to the present case, or how the SVPA violates them. 

Thus, to address Carter’s arguments would require this Court to advocate for, as well as judge the 

correctness of, his positions. “[I]t is not the role of the courts, trial or appellate, to research or 

construct a litigant’s case or arguments for him or her.” Bartley v. Commonwealth, 67 Va. App. 

740, 746 (2017) (quoting Sneed v. Bd. of Prof’l Resp. of the Sup. Ct. of Tenn., 301 S.W.3d 603, 

615 (Tenn. 2010)). “Nor is it this Court’s ‘function to comb through the record . . . in order to 

ferret-out for ourselves the validity of [appellant’s] claims.’” Burke v. Catawba Hosp., 59 

Va. App. 828, 838 (2012) (alterations in original) (quoting Fitzgerald v. Bass, 6 Va. App. 38, 56 

n.7 (1988) (en banc)). Thus, Carter’s insufficient argument fails to show how the SVPA is 
- 9 -

unconstitutional facially and as applied to him regarding conditional release outside the 

Commonwealth.

II. Contesting Guilt of the Underlying Offense

In his written motion to declare the SVPA unconstitutional, filed before the hearing on the 

Commonwealth’s original petition, Carter argued that the SVPA denied him the opportunity to 

contest the validity of the underlying aggravated sexual battery conviction or any “institutional 

convictions, charges, or sentences” during a hearing under the SVPA. At the hearing on his motion, 

however, Carter and the Commonwealth agreed that Code § 37.2-901 prohibited only “a procedural 

attack” on the underlying conviction during a SVPA hearing; it did not prohibit Carter from 

testifying that he was innocent. Accordingly, Carter had “no objection” to an order that prohibited 

him from “attacking the prior convictions, procedurally.” Later, Carter acknowledged that he did 

not seek to “retry the criminal case” or otherwise attack his underlying conviction.

At the annual review hearing, Carter renewed his argument but conceded that nothing had 

changed since the trial court’s original ruling on his motion. He acknowledged the 

Commonwealth’s “partial concession” that he could testify that he was innocent. But he summarily 

concluded, without elaboration, that there was “still a . . . constitutional problem.” Despite such a 

vague and unspecific argument, he contends on appeal that the SVPA “violates equal protection” by 

denying him the opportunity to contest the validity of his underlying criminal conviction or any 

“institutional convictions, charges, or sentences” during a hearing under the SVPA.

Carter’s argument is waived for various procedural reasons. “No ruling of the trial 

court . . . will be considered as a basis for reversal unless an objection was stated with reasonable 

certainty at the time of the ruling, except for good cause shown or to enable this Court to attain 

the ends of justice.” Rule 5A:18. “Not just any objection will do. It must be both specific and 

timely — so that the trial judge would know the particular point being made in time to do 
- 10 -

something about it.” Bethea v. Commonwealth, 297 Va. 730, 743 (2019) (quoting Dickerson v. 

Commonwealth, 58 Va. App. 351, 356 (2011)). We have held that “Rule 5A:18 applies to bar 

even constitutional claims.” Farnsworth v. Commonwealth, 43 Va. App. 490, 500 (2004) 

(quoting Ohree v. Commonwealth, 26 Va. App. 299, 308 (1998)).

Carter did not preserve his argument for appeal. In the original proceedings, Carter 

explicitly agreed to an order prohibiting him from “attacking the prior convictions, procedurally,”

and acknowledged that he did not want to contest the validity of his underlying criminal conviction. 

When he renewed his arguments at the annual review hearing, he did not alter his position in any 

way, contending only that despite the Commonwealth’s agreement that he could testify about his 

innocence, there was “still a . . . constitutional problem.” The vague and unspecific suggestion that 

there is a “constitutional problem” is insufficient to preserve his argument that the SVPA violates 

equal protection by prohibiting him from challenging the validity of his underlying conviction. 

Accordingly, his argument is not preserved. Although there are exceptions to Rule 5A:18, Carter 

has not invoked them, and this Court does not do so sua sponte. Hogle v. Commonwealth, 75 

Va. App. 743, 756 (2022).5

III. Confinement under the SVPA

Carter generally asserts that the SVPA unconstitutionally permits “prisoners convicted of 

crimes” to be “held past their release dates” in violation of his due process and equal protection 

rights. Carter lists, without further comment, the various constitutional provisions that the SVPA 

supposedly “violates.”

5

In addition, to the extent Carter’s argument contradicts his prior agreement that he could 

not procedurally attack his prior conviction in a SVPA proceeding, his argument is waived because 

“[a] party may not approbate and reprobate by taking successive positions in the course of

litigation that are either inconsistent with each other or mutually contradictory.” Nelson v. 

Commonwealth, 71 Va. App. 397, 403 (2020) (alteration in original) (quoting Rowe v.

Commonwealth, 277 Va. 495, 502 (2009)).
- 11 -

An opening brief must contain “[t]he standard of review and the argument (including 

principles of law and authorities) relating to each assignment of error.” Rule 5A:20(e). 

“Unsupported assertions of error ‘do not merit appellate consideration.’” Bartley, 67 Va. App. at 

744 (quoting Jones v. Commonwealth, 51 Va. App. 730, 734 (2008)). “[I]t is not the role of the 

courts, trial or appellate, to research or construct a litigant’s case or arguments for him or her.” 

Id. at 746 (quoting Sneed, 301 S.W.3d at 615). “Nor is it this Court’s ‘function to comb through 

the record . . . in order to ferret-out for ourselves the validity of [appellant’s] claims.’” Burke, 59 

Va. App. at 838 (alterations in original) (quoting Fitzgerald, 6 Va. App. at 56 n.7). To the 

contrary, if an appellant believes that the trial court erred, “Rule 5A:20(e) require[s] him ‘to 

present that error to us with legal authority to support [his] contention.’” Bartley, 67 Va. App. at 

746 (second alteration in original) (quoting Fadness v. Fadness, 52 Va. App. 833, 851 (2008)). 

“[W]here a party fails to develop an argument in support of his or her contention or merely 

constructs a skeletal argument, the issue is waived.” Id. (quoting Sneed, 301 S.W.3d at 615).

It is well decided that a government can civilly commit a person after the term of criminal 

incarceration is concluded if it helps to protect the public and when well-settled procedures are 

followed. See Shivaee, 270 Va. at 128; Jacobson v. Massachusetts, 197 U.S. 11, 26 (1905); 

Foucha v. Louisiana, 504 U.S. 71, 80 (1992); Seling v. Young, 531 U.S. 250, 260 (2001). The

U.S. Supreme Court has held that “the States retain considerable leeway in defining the mental 

abnormalities and personality disorders that make an individual eligible for commitment.” 

Kansas v. Hendricks, 521 U.S. 346, 359 (1997) (holding that involuntary confinement pursuant 

to Kansas Sexually Violent Predator Act was not punitive nor criminal proceedings and that the 

Act’s definition of mental abnormality satisfied substantive due process requirements for civil 

commitment).
- 12 -

While recognizing that the SVPA can civilly commit a defendant after his incarceration 

without violating a defendant’s constitutional rights, Carter waives his argument on appeal due to 

an insufficient brief.

CONCLUSION

For the foregoing reasons, the trial court’s judgment is affirmed.

Affirmed.