State of Washington v. Gerald W. Miller ( 2015 )

FILED
JULY 14,2015
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 32995-0-III
Respondent, )
)
v. )
)
GERALD W. MILLER, ) UNPUBLISHED OPINION
)
Appellant. )
KORSMO, J. - Gerald Miller appeals his conviction and exceptional minimum
sentence for the first degree child molestation of his daughter, four-year-old G.M.,
arguing that counsel was ineffective in failing to raise a corpus delicti challenge to his
numerous admissions to the crime. We affirm.
FACTS
Mr. Miller was indicted in Georgia in 1999 on charges of incest, child molestation,
and aggravated child molestation, involving his young daughter. l He reached a plea
agreement by which he entered sexual offender treatment on the child molestation count
1The Georgia indictment also alleged that the prosecutor was seeking to introduce
evidence that he had molested his stepdaughter in 1987.
No. 32995-0-111
State v. Miller
and was placed on probation for five years; the other two counts were dismissed. After
completing his probation in 2005, the charge was dismissed.
Mr. Miller married R.M., the mother of his daughters L.M. and G.M., in 2000.
These two children were born in Colorado in 2006 and 2008. In 2011, the family moved
from Colorado to Oakville, Washington. The incident giving rise to the charge at issue in
this case occurred February 19,2013.
The family was watching television together and Mr. Miller had G.M. on his lap.
He was tickling the child. R.M. looked over and noticed that he was holding the child's
leg with one hand and rubbing her vaginal area with fingers from his other hand through
her clothing. R.M. decided it was time for G.M. to go to bed and sent her to bed. Two
days later, R.M. took her two daughters and left for Yakima where she reported the
incident to law enforcement and Child Protective Services.
Detective Darrin Wallace interviewed Mr. Miller at his workplace. Mr. Miller
gave a written statement, admitting to touching both girls through their clothing on three
occasions while tickling them. His description of the event was similar to R.M.'s
description, but it was never tied to the specit1c charged February incident. In his
statement he thought he needed additional treatment.
Mr. Miller was arrested about a week later. The prosecutor filed a single charge of
child molestation in the first degree and also alleged the presence of two aggravating
factors: the defendant abused a position of trust and the victim was particularly
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No. 32995-0-111
State v. Miller
vulnerable. During his incarceration, Mr. Miller told his cellmate about the allegations
and admitted to him that he tickled his youngest daughter between the legs and obtained
an erection from the behavior.
The matter proceeded to jury trial. Both R.M. and the cellmate testified as
described, although the cellmate only testified in rebuttal. The detective read Mr.
Miller's written statement to the jury; the statement itself also was admitted as an exhibit.
Mr. Miller took the stand and denied molesting his daughter and denied making the
statements attributed to him by the detective and the cellmate. He explained that he
signed the written statement without reading it. The trial court declined to allow the
prosecutor to cross examine Mr. Miller about the Georgia case, ruling that his testimony
did not open the door to discussing that issue.
The jury convicted Mr. Miller as charged and found two aggravating factors: he
abused a position of trust and the victim was particularly vulnerable. The trial court
imposed an exceptional minimum term of 180 months in prison. 2 Mr. Miller then timely
appealed.
2 The trial court declined to count the Georgia case as a prior offense, sparing Mr.
Miller life in prison as a persistent offender. The State has not cross appealed that
ruling.
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ANALYSIS
Mr. Miller's appeal challenges the admission of his statement, arguing that his
counsel was ineffective for failing to object on corpus delicti grounds, and the imposition
of an exceptional minimum sentence. We address first the ineffective assistance claim
before turning to the sentencing contention.
Ineffective Assistance o/Counsel
The effectiveness of counsel is judged by the two-prong standard of Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052,80 L. Ed. 2d 674 (1984). That test is whether
or not (1) counsel's performance failed to meet a standard of reasonableness, and (2) actual
prejudice resulted from counsel's failures. Id. at 690-92. In evaluating ineffectiveness
claims, courts must be highly deferential to counsel's decisions and there is a strong
presumption that counsel performed adequately. A strategic or tactical decision is not a
basis for finding error. Id. at 689-91. When a claim can be disposed of on one ground, a
reviewing court need not consider both Strickland prongs. State v. Foster, 140 Wn. App.
266,273, 166 P.3d 726 (2007).
Washington uses the term corpus delicti in two distinct senses. State v. Lopez
Angulo, 148 Wn. App. 642, 200 P.3d 752 (2009), review denied, 170 Wn.2d 1009 (2010).
First, it can refer to the sufficiency of the evidence to support a conviction. Id. at 648. It
can also refer to an evidentiary foundation requirement-before a confession is admitted
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State v. Miller
into evidence, there must be a prima facie showing that a crime occurred. Id. at 648-52.
This second meaning, the evidentiary corpus delicti rule, is at issue here.
Mr. Miller argues that his counsel was ineffective in failing to assert an evidentiary
corpus delicti objection to the admission of his statement. His contention fails for at least
three reasons.
First, it is doubtful that the corpus delicti rule has application here. Miller was
charged with molesting G.M., February 19,2013. His statement admitted to molesting
both daughters on at least three occasions. While his description of tickling the child and
then touching her vagina was consistent with R.M.' s description of the charged incident,
he did not expressly address that occasion in his statement. Indeed, the court heard
argument from counsel about the statement at the beginning of trial since it covered
multiple instances of touching. Report of Proceedings at 4-7. The court excluded the
Georgia case on ER 404(b) grounds, but ruled that Mr. Miller's statement was admissible
under that rule. 3 Id. at 7-12. The parties and the court clearly saw the statement as
addressing more than just the charged incident. Given the lack of express reference to the
February 19 incident, it is difficult to consider this statement a confession or admission to
the charged offense that would even be subject to the evidentiary corpus delicti rule. It is
understandable that counsel did not raise the argument.
3 Mr. Miller has not challenged that ruling in this appeal.
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State v. Miller
A second reason that the appellate claim fails is our decision in Lopez Angulo.
There we expressly rejected the same contention that Mr. Miller makes here-that the
State had to establish every element of the offense before the statement could be
admitted. 4 148 Wn. App. at 656-57. Instead, as in homicide cases, the corroborating
evidence need only establish the gravamen of the offense. Id. at 656. In the case of child
sex abuse, there need only be a showing of a sexual act with a minor. Id.
In this case, R.M.'s testimony was sufficient to make the necessary showing. Her
testimony established purposeful touching of the victim's intimate area. That was
sufficient foundation to admit the defendant's statement. 5 Trial counsel could not have
successfully objected on the basis Miller now alleges. Counsel did not fail to perform
effectively.
Finally, we note an important tactical reason for avoiding this issue. The State had
evidence that Mr. Miller had previously offended in Georgia against another daughter
and was alleged to have molested a stepdaughter prior to that. If a successful objection
4 Thus, effectively rendering a confession admissible only if it is unnecessary to
the State's case. This approach also denies the State the natural inference that the
purpose of sexual touching is sexual gratification. E.g., State v. Land, 172 Wn. App. 593,
601,295 P.3d 782 (2013).
5Even under Mr. Miller's theory of corpus delicti, the State did produce evidence
of sexual gratification by the cellmate's testimony. The testimony came after the
statement was admitted, but still corroborates that element.
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had been lodged here in a timely manner, typically before trial, the court might have
reconsidered its exclusion of the prior Georgia matters as a method of proving the
defendant's intent while touching his child. This was a risk that counsel might very
wisely decide was not worth taking. For this reason, too, the decision to not challenge
the statement on corpus delicti grounds did not indicate that counsel failed his client.
For all three reasons, the claim of ineffective assistance fails.
Exceptional Minimum Sentence
Mr. Miller also challenges his exceptional minimum sentence, arguing that the
evidence did not support the jury's findings. Properly viewed, the evidence did allow the
jury to find both aggravating factors.
A factual challenge is reviewed on appeal under the clearly erroneous standard.
State v. Grewe, 117 Wn.2d 211,218,813 P.2d 1238 (1991). The finding will be reversed
only if no substantial evidence supports it. Id.To establish the abuse of a position of trust aggravating factor, there must be
evidence that the defendant was in a position of trust relative to the victim, and that the
defendant used that position to facilitate the commission of the crime. RCW
9.94A.535(3)(n). In determining whether the defendant was in a position of trust the court
should look to the duration and degree of the relationship to determine whether the
defendant was in a position of trust. Grewe, 117 Wn.2d at 218. The court must then
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State v. Miller
determine whether the defendant used that position to facilitate the commission of the
crime. State v. Bedker, 74 Wn. App. 87,95,871 P.2d 673 (1994).
Here, Mr. Miller was a father and caregiver to the victim for the entirety of her life
(more than four years). This establishes that he was in a position of trust relative to the
victim. The evidence presented here also indicates that in his caregiving role he would
play with his children and surreptitiously molest them under the guise oftickling. 6
According to his confession the molestations only occurred because of momentary lapses
ofjudgment in situations where the molestation could be accomplished with extreme ease.
These situations only occurred because of his position of trust relative to his daughters.
Consequently, there was evidence to support a finding that he abused a position oftrust to
facilitate the commission of the crime of child molestation.
The other aggravating factor found by the jury was that the victim was particularly
vulnerable. To support this finding there must have been evidence that Mr. Miller knew
or should have known that O.M. was either particularly vulnerable or was incapable of
resistance. RCW 9.94A.535(3)(b). Extreme youth alone can support such a finding,
6 Appellant argues that Mr. Miller's fatherhood merely created an opportunity,
pointing to State v. P.E. T for the proposition that "[m]ere opportunity created by a
person's position is not enough from which to conclude that the position of trust
facilitated the commission of the crime." State v. P.E.T, 67 Wn. App. 292,304,834
P.2d 1051 (1992). However, P.B.T. does not aid Mr. Miller. There the court allowed an
inference that where the perpetrator enjoyed a position of trust with respect to the victim,
it was a logical inference that the position of trust was used to facilitate the crime. Id. at
305.
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even where age of the victim is an element ofthe crime. State v. Fisher, 108 Wn.2d 419,
425, 739 P.2d 683 (1987); State v. Stevens, 58 Wn. App. 478, 794 P.2d 38 (1990)
(holding a seven year old as particularly vulnerable because of her youth alone). The
pertinent inquiry is whether the evidence distinguishes the victim from other victims of
the same crime. Fisher, 108 Wn.2d at 424-25.
Here, we not only have a four year old victim, but the record also indicates that the
victim was unable to provide any statement concerning the crime and that the victim was
likely unaware that the touching was improper at all. Thus, there are multiple evidentiary
bases for determining that G.M. was particularly vulnerable.
The record supports the jury's findings.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
I CONCUR:
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No. 32995-0-III
FEARING, J.-(concurrence) I concur in the majority's ruling, including the ruling
that Gerald Miller did not receive ineffective assistance of counsel. I write separately
because I disagree with one of the grounds on which the majority holds that trial counsel
was not ineffective.
The majority writes that the confession uttered to Detective Darrin Wallace is not
barred by the corpus delicti evidentiary rule because Gerald Miller's confession to
touching his daughter's vagina did not expressly reference the February 19,2013 incident
for which the State charged Miller. The record is not clear as to whether Miller's
confession was to his conduct on February 19 but he did not put a date on the conduct, or
whether Miller confessed to criminal conduct on one or more other dates. The majority
may propose that evidentiary rules do not apply to the State's introduction of testimony
regarding a confession to a crime, if the accused never dates the crime confessed.
The State never argued this point before the trial court and does not forward this
contention on appeal. We should not base our decision on a ground never advocated by
the State and to which Miller has had no notice or opportunity in which to respond. This
court does not review issues not argued, briefed, or supported with citation to authority.
RAP 10.3; Valente v. Bailey, 74 Wn.2d 857, 858,447 P.2d 589 (1968); Avellaneda v.
No. 32995-0-II1
State v. Miller (concurrence)
State, 167 Wn. App. 474,485 n.5, 273 P.3d 477 (2012). This court should not raise new
issues without first giving the parties the chance to brief them. RAP 12.1. There are
obvious due process problems in affirming a trial court ruling in a criminal proceeding on
an alternative theory against which the defendant has had no opportunity to present an
argument. State v. Adamski, 111 Wn.2d 574,580,761 P.2d 621 (1988).
I CONCUR:
2