State of Washington v. Sean Joseph Bates , 196 Wash. App. 65 ( 2016 )

FILED
SEPTEMBER 22, 2016
In the Office of the Clerk of Court
WA State Court of Appeals, Division Ill
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 32779-5-111
Respondent, )
)
v. ) OPINION PUBLISHED
) IN PART
SEAN JOSEPH BATES, )
)
Appellant. )
SIDDOWAY, J. - Our Supreme Court has long held that before offering the
testimonial out-of-court statement of a witness against a criminal defendant, "the
confrontation clause's indispensable component of cross-examination 'requires the State
to elicit the damaging testimony from [a] witness so the defendant may cross-examine if
he so chooses."' In re Pers. Restraint of Grasso, 151 Wash. 2d 1, 29, 84 P.3d 859 (2004)
(Sanders, J., dissenting) (quoting State v. Rohrich, 132 Wn.2d 472,478, 939 P.2d 697
(1997)). Following the United States Supreme Court's decision in Crawford v.
Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), our Supreme Court
reaffirmed Rohrich, holding that Crawford "left intact the governing case law analyzing
No. 32779-5-III
State v. Bates
the sufficiency of a witness's testimony for confrontation clause purposes." State v.
Price, 158 Wn.2d 630,650, 146 P.3d 1183 (2006). Sean Bates appeals his conviction of
two counts of first degree child rape, complaining for the first time on appeal that the
State's examination of his child victim was not sufficient for confrontation clause
purposes.
The rationale for requiring the State to sufficiently elicit damaging information is
so the defense can cross-examine the witness about that information, whether it is
contained in in-court or out-of-court statements. In a case such as this, it spares the
defendant the risk of inflaming the jury if he calls a child as a direct witness. It
safeguards the defendant's right to rely on the State's burden of proof in a criminal case.
In this case, the State's direct examination of the child victim was broad enough to
open the door to cross-examination of all of the damaging information provided by the
child victim, in court or out of court. For purposes of his confrontation clause challenge,
Mr. Bates fails to demonstrate manifest constitutional error. For purposes of a related
ineffective assistance of counsel argument, he fails to demonstrate any error or prejudice.
Mr. Bates does show (and the State concedes) that a community custody condition
involving Internet use is not crime related, and that the trial court failed to undertake an
individualized inquiry into his ability to pay discretionary legal financial obligations. For
these reasons, and because Mr. Bates raises no meritorious arguments in a statement of
additional grounds, we affirm his convictions and remand for resentencing.
2
No. 32779-5-111
State v. Bates
FACTS AND PROCEDURAL BACKGROUND
For 18 months, Sean Bates rented the basement living area of the home of a
female coworker. Her granddaughter, SJ., is the victim in this case. Evidence was
presented at trial that during the time he rented the basement, Mr. Bates was a trusted
friend of his coworker. She allowed SJ. and SJ.'s younger brother to go down to the
basement living area to play on Mr. Bates's iPod (as long as it was okay with him) and
allowed them to swim and play with Mr. Bates in the family pool.
During the charging period of September 1, 2012 to July 6, 2013, when SJ. was in
the first grade and turned seven years old, Mr. Bates put his finger underneath S.J.'s
clothes or bathing suit on numerous occasions to touch what she called her "front private
and [her] back private"-·"sometime[ s on] the outside and the inside" of her privates.
Report of Proceedings (RP) at 292-93. 1 Eventually, on July 6, 2013, he took her into his
basement bathroom, closed the door, pulled down her pants and underwear, and holding
her upside down, "licked [her] privates [on the] front and back." RP at 294. After his
conduct came to light, Mr. Bates was charged with two counts of child rape in the first
degree.
Following a pretrial hearing to determine whether statements about Mr. Bates's
conduct that S.J. made to family and to a State child investigator would be admitted
1
"RP," without a date, refers to the report of proceedings of the trial. Reports of
other proceedings are identified by date.
3
No. 32779-5-III
State v. Bates
under the child hearsay exception,2 the court found that the statements S.J. had made to
others "are reliable and will be admitted at trial." RP (June 9, 2014) at 104.
At trial, the State presented its case by first calling as witnesses several family
members who had spoken with S.J. about Mr. Bates's sexual contact after it came to light
on July 9, 2013. The night before S.J. disclosed his conduct, she had a sleepover at her
aunt's house, with two cousins. The State's first witness was S.J.'s 8-year-old cousin,
who testified that when "talking about secrets," S.J. told her that "a guy at her
grandma's" had "licked her ... private spot". RP at 37.
The State's next witness was S.J.'s 13-year-old cousin, to whom the 8-year-old
cousin immediately ran to report S.J.'s "secret," with S.J. in tow. S.J. repeated what Mr.
Bates had done to her to her older cousin.
The State next called S.J.'s aunt, whom the 13-year-old phoned, asking her to
come over right away because it was "an emergency." RP at 54. S.J. 's aunt spoke to
2
The exception, codified at RCW 9A.44.120, provides that a statement made by a
child under the age of 10 describing any act of sexual contact performed with or on the
child by another is admissible in evidence in criminal proceedings if the court finds, in a
hearing outside the presence of the jury,
( 1) ... that the time, content, and circumstances of the statement provide
sufficient indicia of reliability; and
(2) The child either:
(a) Testifies at the proceedings; or
(b) Is unavailable as a witness: PROVIDED, That when the child is
unavailable as a witness, such statement may be admitted only if there is
corroborative evidence of the act.
4
No. 32779-5-111
State v. Bates
SJ., who told her about what "Sean," her "[boyfriend] that lived at her grandma's house"
had done to her. RP at 55. All three witnesses recounted similar reports by SJ.: that
Sean, who lived at her grandma's house, had licked her "private part," or "bottom," and
had once put his finger in her "butt." RP at 37, 55, 45. SJ.'s aunt called her brother-
SJ.'s father-as well as the police.
Before the State called SJ. to testify at trial, it called Mari Murstig, a child
interviewer with the Benton County Prosecutor's office who had conducted a videotaped
interview of S.J. on July 10, the day after the allegations of molestation came to light.
After questioning Ms. Murstig about her position, background, training, methods, and her
interview of S.J., the prosecutor had her authenticate the videotape, which was admitted
into evidence without objection. The approximately 40-minute videotape was then
played for the jury. In the course of the interview, S.J. told Ms. Murstig that on the prior
Saturday, Mr. Bates had pulled down her pants and underpants, hung her "upside down"
and licked her private parts in her grandma's downstairs bathroom. Ex. 30 at 21 min., 7
sec. She said Mr. Bates had been about to put his "wiener" inside her when her· grandma
knocked on the door, and he stopped. Id. at 26 min., 12 sec. She told Ms. Murstig that
on many occasions before that day, Mr. Bates had touched her "pee-pee" with his
finger-on the couch downstairs, on the couch upstairs, and outside on the tennis court.
Id. at 39 min., 00 sec.
5
No. 32779-5-111
State v. Bates
S.J. 's parents were both called as witnesses and testified to consistent statements
S.J. had made to them after they picked her up from her aunt's home on July 9. And
S.J. 's grandmother testified that S.J. and her younger brother often spent 'time in the
basement with Mr. Bates because he would let them play games on his iPod. The
grandmother also recalled that she had gone looking for S.J. on July 6, the Saturday when
S.J. had been molested in the basement bathroom, and had called for her in the basement
in response to which Mr. Bates, and then S.J., answered "In here," from behind the closed
bathroom door. Because the bathroom had an outside door to the pool area and was a
preferred entrance for wet swimmers who would otherwise track water through the
house, the grandmother assumed the two were just coming in from swimming.
The State called S.J. as its final witness. Almost three dozen of the prosecutor's
questions related directly to Mr. Bates's sexual contact with S.J. She testified that on the
Saturday in question, Mr. Bates had turned her upside down and licked her private parts,
but that when her grandmother knocked on the door they put their clothes back on. She
also stated Mr. Bates had touched her private parts with his hand on the downstairs couch
while she was playing with his iPod on many Saturdays and Sundays. She denied that
she had ever played with Mr. Bates's iPod on the tennis court. When asked if she
remembered talking "to a lady about it when you colored with markers" (from the
videotape, jurors would have known this was Ms. Murstig), S.J. said that she did. RP at
296. She said she had told the lady about what happened with Mr. Bates. The prosecutor
6
No. 32779-5-111
State v. Bates
did not ask S.J. to tell the jury anything about the content of her interview by Ms.
Murstig.
On cross-examination, defense counsel asked S.J. a number of questions about the
statements she made when interviewed by Ms. Murstig. The State did not object to any
of the questioning as being beyond the scope of its direct examination.
Mr. Bates testified in his own defense, denying S.J.'s allegations of sexual contact.
He also called his ex-girlfriend to testify to text and voice communications they had off
and on during the late afternoon and early evening of July 6. Evidence suggested that it
was sometime during that time frame that the molestation in the bathroom occurred.
The jury found Mr. Bates guilty of both counts charged. He was sentenced to 144
months to life in prison. The court imposed a condition of community custody that
prohibits Mr. Bates from using "a computer or electronic device capable of accessing the
internet without authorization from [his] Community Corrections Officer and/or
therapist." Clerk's Papers (CP) at 109. It also imposed both mandatory and discretionary
legal financial obligations (LFOs) without conducting an individualized inquiry into Mr.
Bates's ability to pay. Mr. Bates appeals.
ANALYSIS
I. Sixth Amendment confrontation right
Mr. Bates's principal argument on appeal is that his United States constitutional
Sixth Amendment confrontation right was violated when the court admitted S.J.'s
7
No. 32779-5-III
State v. Bates
unsworn interview by Ms. Murstig without then questioning S.J. broadly enough to
subject her to cross-examination. Unlike S.J.'s reports to family members, her recorded
interview by the prosecutor's child investigator was testimonial, implicating his
confrontation right. See Ohio v. Clark,_ U.S._, 135 S. Ct. 2173, 2182, 192 L. Ed. 2d
306 (2015) (statements about abuse made to teachers were not testimonial, unlike such
statements made to persons charged with uncovering and prosecuting criminal behavior).
Confrontation clause violations are reviewed de novo. State v. Jasper, 174 Wash. 2d 96,
108,271 P.3d 876 (2012) (citing Lilly v. Virginia, 527 U.S. 116, 137, 119 S. Ct. 1887,
144 L. Ed. 2d 117 (1999)).
Citing State v. Clark, 139 Wash. 2d 152, 159, 985 P.2d 377 (1999), Mr. Bates argues
that under United States Supreme Court decisions in United States v. Owens 3 and
California v. Green, 4 "' the admission of hearsay statements will not violate the
confrontation clause if the hearsay declarant is a witness at trial, is asked about the event
and the hearsay statement, and the defendant is provided an opportunity for full cross-
examination.'" Br. of Appellant at 7-8. The emphasis, "and the hearsay statement," is
Mr. Bates's, not Clark's. He argues that because S.J. "was not asked about her hearsay
statements, she did not concede having made any of the statements reported by Ms.
3
484 U.S. 554, 108 S. Ct. 838, 98 L. Ed. 2d 951 (1988).
4
399 U.S. 149, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970).
8
No. 32779-5-111
State v. Bates
Murstig and thus she was not open to "' cross-examination at trial as to both stories.'
[Price,] 158 Wash. 2d at 640." Id. at 8. The emphasis of "both" is again Mr. Bates's, not
Price's.
Clark extended an analysis of the confrontation clause first announced by our
Supreme Court in Rohrich. In Rohrich, which involved prosecution of the defendant for
first degree child rape and first degree child molestation of his stepdaughter, the State
called the stepdaughter to the stand as its first witness and asked her innocuous questions
unrelated to alleged abuse. Defense counsel did not cross-examine her. After that, the
State presented its evidence of abuse through other witnesses: four adults, who testified to
what the victim had told them. The Supreme Court found both statutory and
constitutional problems with this manner of proceeding.
We consider only the Court's confrontation clause analysis, since Mr. Bates raised
no objection in the trial court to the State's offer of S.J.'s videotaped interview and any
challenge based on the child hearsay exception was not preserved. RAP 2.5(a). A
violation of the right to confront witnesses is constitutional error which, if manifest, we
may consider for the first time on appeal. RAP 2.5(a)(3); Clark, 139 Wash. 2d at 156.
In its confrontation clause analysis, the Rohrich court held:
The opportunity to cross-examine means more than affording the defendant
the opportunity to hail the witness to court for examination. It requires the
State to eticit the damaging testimony from the witness so the defendant
may cross-examine ifhe so chooses. Shaw v. Collins, 5 F.3d 128, 132 n.7
(5th Cir. 1993). In this context "not only [must] the declarant have been
9
No. 32779-5-111
State v. Bates
generally subject to cross-examination; he must also be subject to cross-
examination concerning the out-of-court declaration." United States v.
West, 670 F.2d 675, 687 (7th Cir.[ 1982]), [overruled on other grounds by
United States v. Green, 285 F.3d 683 (7th Cir. 2001)]. The State's failure
to adequately draw out testimony from the child witness before admitting
the child's hearsay puts the defendant in "a constitutionally impermissible
Catch-22" of calling the child for direct or waiving his confrontation rights.
Lowery v. Collins, 996 F.2d 770, 771-72 (5th Cir. 1993).
132 Wash. 2d at 478 (first alteration in original) (footnotes omitted).
Both of the Fifth Circuit decisions relied on in Rohrich offered the same reason
why the government's failure to adequately draw out an accuser's testimony created a
"constitutionally impermissible Catch-22." Shaw relied on Lowery:
Requiring a criminal defendant to examine his accuser during his case-in-
chief rather than mandating that the prosecution call the witness during its
case-in-chief places the defendant in a no-win situation. Lowery v. Collins,
988 F.2d 1364, 1369-70 (5th Cir. 1993). Such a requirement is inconsistent
with the Confrontation Clause, for it requires the criminal defendant to
either risk inflaming the jury by cross-examining the child-complainant or
to avoid that risk by forgoing his Sixth Amendment rights to confront and
cross-examine his accuser. Id. at 1369-1370.
Shaw, 5 F.3d at 132 n.7. Lowery observed in addition that forcing a criminal defendant to
call a child complainant to testify "unfairly requires a defendant to choose between his
right to cross-examine a complaining witness and his right to rely on the State's burden
of proof in a criminal case." 988 F.2d at 1368.
The Seventh Circuit case cited by Rohrich arose in the different context of Federal
Rules of Evidence 80l(d)(l)(B). West, 670 F.2d at 686. The court held that if a witness
(Witness A) is impeached with a prior inconsistent statement suggesting recent
10
No. 32779-5-111
State v. Bates
fabrication, then any prior consistent statement by Witness A offered to rebut the charge
of recent fabrication must come in through Witness A, on redirect or as a rebuttal
witness, in order to subject him or her to cross-examination. Id. at 687. Rejecting the
views of other federal courts, the Seventh Circuit held that the prior consistent statement
cannot be established by the testimony of a third party (Witness B). Id. In that context,
West explains that it is not enough that Witness A had testified and was subject to cross-
examination sometime during trial; he or she "must also be subject to cross-examination
concerning the out-of-court declaration." Id.
At issue, then, is the scope of cross-examination and the State's burden of proof in
a criminal case. To demonstrate a violation of the confrontation clause as construed by
the Fifth Circuit Court of Appeals and our Supreme Court, 5 Mr. Bates must show that the
State's presentation of evidence required him to forego cross-examination or to challenge
S.J.'s allegations by calling her as a witness himself. To demonstrate manifest
constitutional error, he must show how the error actually affected his rights at trial; it is
this showing of actual prejudice that makes the error "manifest," allowing appellate
review. State v. Kirkman, 159 Wash. 2d 918, 926-27, 155 P.3d 125 (2007).
5
In State v. Tompkins, 859 N. W .2d 631, 640-41 (2015), the Iowa Supreme Court
characterized our courts' view of this confrontation requirement as a minority view of
Crawford and other controlling decisions of the United States Supreme Court.
11
No. 32779-5-111
State v. Bates
Mr. Bates does not make this showing. To begin with, he did cross-examine S.J.
about statements she had made to Ms. Murstig when interviewed. And the State did not
object to the questions as outside the scope of its direct examination. He does not show
that the State's conduct forced him to limit his cross-examination or to call S.J. as a
witness.
In addition, given the State's extensive questioning of S.J. about Mr. Bates's
offensive contact, it is hard to imagine any relevant questioning that would not have
fallen within the scope of cross-examination if the State had tried to object on the basis of
scope. ER 611 (b) governs the scope of cross-examination, and provides:
Cross examination should be limited to the subject matter of the direct
examination and matters affecting the credibility of the witness. The court
may, in the exercise of discretion, permit inquiry into additional matters as
if on direct examination.
Given the breadth of S.J.'s testimony about Mr. Bates's sexual contact with her,
any relevant cross-examination based on her videotaped interview-including the couple
of events she described in the interview that she omitted or denied later-would have
fallen within ER 61 l(b)'s permitted scope.
Mr. Bates depends heavily on statements in several of our Supreme Court's
decisions that the confrontation clause requires the State to question an accuser about the
accuser's out-of-court statement admitted into evidence. But in each case, the scope of
the accuser's direct examination was, or would have been, too limited to permit full
12
No. 32779-5-111
State v. Bates
cross-examination without questioning about the prior statement. Rohrich quotes West's
statement that a declarant "' must ... be subject to cross-examination concerning the out-
of-court declaration,"' 132 Wash. 2d at 478 (quoting West, 670 F.2d at 687), because the
questioning of the stepdaughter in Rohrich was so narrow that it did not subject her to
questioning about alleged abuse at all.
Clark, which discusses the United States Supreme Court decisions in Green and
Owens, states that the admission of hearsay statements will not violate the confrontation
clause if the hearsay declarant "is asked about the event and the hearsay statement," 139
Wash. 2d at 159, but in Clark, Green and Owens, it was only the hearsay statement that was
inculpatory. Clark and Green involved witnesses who recanted or backed away from a
prior accusation and Owens involved a brain-injured witness who had lost his memory of
an event by the time of trial. Unlike this case, in those cases it was only by questioning
the witnesses at trial about their hearsay statements that the State would subject them to
cross-examination about the damaging accusations admitted into evidence.
Price states that the confrontation clause does not require excluding the prior
statement of a witness "'who concedes making the [out-of-court] statements"' and
thereby "' open[ s] himself to full cross-examination at trial as to both stories,'" but it is
quoting Green. 158 Wash. 2d at 640 (quoting Green, 399 U.S. at 164).
The language on which Mr. Bates relies applies in cases where the only way an
accuser will be subjected to cross-examination about the damaging information contained
13
No. 32779-5-111
State v. Bates
in an out-of-court statement is if the State's direct examination elicits the damaging
information/ram that statement. This is not such a case.
Mr. Bates has not identified manifest constitutional error.
II. Ineffective assistance of counsel
I.
Mr. Bates's trial lawyer did not object when the State offered the videotape of Ms.
Murstig's interview, but Mr. Bates is willing to excuse that failure to object in light of the
State's "implicit intent to make S.J. available as a witness." Br. of Appellant at 11. But
he argues on appeal that once the prosecutor concluded direct examination without asking
SJ. about her statements to Ms. Murstig, "defense counsel provided ineffective
assistance in failing to move for a mistrial." Id. To demonstrate ineffective assistance of
counsel, a defendant must show that his trial lawyer's representation was deficient (i.e., it
fell below an objective standard of reasonableness based on consideration of all the
circumstances) and the deficient representation prejudiced the defendant (i.e., there is a
reasonable probability that, except for counsel's unprofessional errors, the result of the
proceeding would have been different). State v. McFarland, 127 Wash. 2d 322, 334-35,
899 P.2d 1251 (1995) (citing State v. Thomas, 109 Wash. 2d 222, 225-26, 743 P.2d 816
(1987)). The claim fails if the defendant fails to satisfy either prong. Thomas, 109 Wash.
at 226.
Our conclusion in addressing Mr. Bates's first assignment of error was that he had
not identified manifest constitutional error, but we might as easily have said that he had
14
No. 32779-5-111
State v. Bates
not demonstrated any error-or any prejudice. As already discussed, the State did not
raise a scope objection and cut off Mr. Bates's cross-examination. Its direct examination
of S.J. was so broad that every subject matter of relevant cross-examination reflected in
the record would fall within the scope of cross-examination. Mr. Bates did not perform
ineffectively by failing to move for a mistrial.
We affirm Mr. Bates's convictions and remand for resentencing consistent with
this opinion.
The remainder of this opinion has no precedential value. Therefore, it will be filed
for public record in accordance with RCW 2.06.040, the rules governing unpublished
opm1ons.
Ill. Community custody condition
Mr. Bates next argues that the trial court erred when it imposed a community
custody condition prohibiting him from using a device to access the Internet because
there is no evidence his crime was related to Internet access. "As part of any term of
community custody, the court may order an offender to ... comply with any crime-
related prohibitions." RCW 9.94A.703(3)(t). A "crime-related prohibition" is an order
that prohibits "conduct that directly relates to the circumstances of the crime for which
the offender has been convicted." RCW 9.94A.030(10). '"There must be some basis for
the "crime-related" determination if the limitation is to have any meaning.'" State v.
15
No. 32779-5-111
State v. Bates
Parramore, 53 Wn. App. 527,531, 768 P.2d 530 (1989) (quoting DAVID BOERNER,
SENTENCING IN WASHINGTON§ 4.5 (1985)).
Though Mr. Bates did not object to the condition at trial, challenges to community
custody conditions as illegal or erroneous may be made for the first time on appeal. State
v. Bahl, 164 Wash. 2d 739, 744, 193 P.3d 678 (2008). 6
The State concedes that the record does not support any inference of a nexus
between Mr. Bates's offenses and use of a computer or other access to the Internet. Br.
ofResp't at 8-9. We agree, accept the State's concession, and remand with directions to
strike the condition.
IV. LFOs
Finally, Mr. Bates argues for the first time on appeal that the trial court erred when
it imposed LFOs without conducting an individualized inquiry into his ability to pay.
The State concedes that no individualized inquiry was made and that this was error. Br.
of Resp't at 9.
As a preliminary matter, we must consider whether to accept review of the issue.
Mr. Bates made no objection to the finding that he had the present or future ability to pay
6
Mr. Bates is currently incarcerated and has not yet been charged with violating
the challenged community custody condition. Considering the hardship to the parties that
may result from withholding court consideration, and because the issue raised is
primarily legal, does not require further factual development, and the challenged action is
final, we find his challenge is ripe for review. Bahl, 164 Wash. 2d at 751.
16
No. 32779-5-111
State v. Bates
pay and thereby failed to preserve a claim of error. RAP 2.5(a); State v. Blazina, 182
Wash. 2d 827, 833, 344 P.3d 680 (2015) ("[u]npreserved LFO errors do not command
review as a matter of right"). But we enjoy discretion to consider the issue for the first
time on appeal. RAP 2.5(a); Blazina, 182 Wash. 2d at 835. Because the State concedes
error and further action in the trial court is required, we exercise our discretion to review
the claimed error.
Under RCW 10.01.160(3), "[t]he court shall not order a defendant to pay costs
unless the defendant is or will be able to pay them." "The record must reflect that the
trial court made an individualized inquiry into the defendant's current and future ability
to pay." Blazina, 182 Wash. 2d at 838. The record does not reflect any such inquiry in this
case. We remand for resentencing at which Mr. Bates' ability to pay the $1,297.60 in
discretionary LFOs shall be considered. 7
STATEMENT OF ADDITIONAL GROUNDS
In a prose statement of additional grounds for review (SAG), Mr. Bates raises
two.
7
Discretionary LFOs included a $60.00 sheriffs filing fee, $250.00 jury demand
fee, $287.60 witness fee, and $700.00 in attorney fees. The $200.00 filing fee under
RCW 36.18.020(2)(h) is mandatory. The discretionary or mandatory character of the
jury demand fee remains unclear. See State v. Clark, No. 32839-2-111, slip op. at 4
(Wash. Ct. App. Sept. 8, 2016),
https://www.courts.wa.gov/opinions/pdf/3 283 92~ub. pdf.
17
No. 32779-5-111
State v. Bates
S.J. 's Credibility. Having reviewed his copy of the transcript of proceedings, Mr.
Bates identifies instances in which he characterizes S.J. 's testimony as incorrect or
inconsistent, argues that those errors and inconsistencies bear on her credibility, and cites
statutes from other states that he contends recognize the need to consider corroborating
evidence in determining whether a child's testimony is trustworthy.
S.J. 's statements and testimony were sometimes inconsistent but were largely
consistent, and she could very reasonably be found to be credible. We defer to the trial
court's assessment of credibility in applying the child hearsay exception and to the jury's
assessment in arriving at its verdict. State v. Swan, 114 Wn.2d 613,667, 790 P.2d 610
(1990) ("Appellate courts ... recognize ... that the trial court is in the best position to
make the decisions as to competency and credibility" in a hearing on the admission of
child hearsay); Burnside v. Simpson Paper Co., 123 Wash. 2d 93, 108, 864 P.2d 937 (1994)
("The credibility of witnesses ... are matters within the province of the jury." (emphasis
omitted) (quoting Burke v. Pepsi-Cola Bottling Co., 64 Wash. 2d 244, 246, 391 P.2d 194
(1964)).
Ineffective Assistance of Counsel. Mr. Bates alleges his trial lawyer provided
ineffective assistance of counsel at trial in five instances; according to Mr. Bates, his
lawyer (1) failed to obey a court order to send his ex-girlfriend's iPad to a forensic
computer analyst (she was a defense witness and testified to matters she had reviewed on
her iPad); (2) failed to visit the crime scene or employ an investigator; (3) failed to
18
No. 32779-5-111
State v. Bates
investigate another suspect; (4) failed to obtain medical reports; and ( 5) failed to
investigate and prepare for trial. SAG at 6-7. The record does not reveal that his trial
lawyer failed to do any of these things. To the extent Mr. Bates's challenge depends
upon facts outside the record of this appeal, his remedy is to seek relief by personal
restraint petition. State v. Norman, 61 Wash. App. 16, 27-28, 808 P.2d 1159 (1991).
Again, we affirm Mr. Bates's convictions and remand for resentencing consistent
with this opinion.
WE CONCUR:
19