IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
DIVISION ONE
In re Personal Restraint of: ) No. 78973-2-I
)
) UNPUBLISHED OPINION
RONALD GARTH PARKER )
__________________________________ ) FILED: February 10, 2020
ANDRUS, J — In his personal restraint petition, Ronald Parker challenges his
convictions for child rape and child molestation.1 Parker argues that his trial
counsel was ineffective in failing to investigate what he now claims is exculpatory
evidence, and his appellate counsel was ineffective in failing to challenge the
constitutionality of unrecorded sidebars during trial. Because Parker has failed to
establish deficiencies in his representation, we deny his personal restraint petition.
FACTS
Shannon Dearinger and her four children, Adam MacCurdy (son, age 19),
R.M. (daughter, age 13),J.M. (son, age 11), andA.M. (daughter, age 8), moved in
with Parker in September 2012. State v. Parker, 199 Wash. App. 1001, *1, 2017
WL 2117034 (2017). There was significant discord between Parker and
Dearinger’s children. Id. R.M. was particularly unhappy living with Parker, writing
1This court affirmed his convictions and sentence in State v. Parker, No. 74030-0-I (Wash.
Ct. App. May 15, 2017) (unpublished), http://www.courts.wa.gov/opinions/pdf/740300.pdf, review
denied, 189 Wn.2d 1013, 402 P.3d 824 (2017).
No. 78973-2-U2
in her journal that she hated him and wanted to induce her mother to leave Parker.
Id.
In June 2014, A.M. told R.M. that Parker had touched her inappropriately.
A.M.—with the encouragement of both R.M. and J.M.—told her mother that Parker
had touched her. Dearinger removed her children from the house and reported
the abuse to the police. ki. Soon after, a child interview specialist interviewed
A.M. about her allegations. ki. As a result, Parker was charged with four counts
of rape of a child in the first degree and four counts of child molestation in the first
degree.
At trial, A.M. testified, consistent with the forensic interview, that Parker
molested her while they lay next to each other on a blue couch watching television
in Parker’s living room. Dearinger, J.M., and R.M. testified that the family watched
television together at least once a week and that Parker and A.M. were often on
the couch together covered by a blanket.
Parker argued at trial that R.M. and A.M. colluded to fabricate the
allegations because they did not like living so far from their friends, did not like
Parker, did not like doing chores, and wanted to leave “by any means necessary.”
Parker’s trial counsel spent a significant amount of time cross examining R.M.
regarding the animosity she felt toward Parker and the entries in her journal where
she documented her intent to lie to her mother about Parker in order to cause them
to break up.
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The jury convicted Parker of four counts of first degree rape of a child, three
counts of first degree child molestation, and one count of attempted child
molestation. Parker, 199 Wn. App. at *1.
On appeal, Parker challenged the impartiality of his jury, the admissibility of
A.M.’s recorded forensic interview, the exclusion of R.M.’s journal, and
prosecutorial statements during closing arguments. This court rejected Parker’s
arguments and affirmed Parker’s convictions and sentence. Id. at *7 Our
Supreme Court denied review. State v. Parker, 189 Wn.2d 1013, 402 P.3d 824
(2017).
Parker now asserts that his legal representation at trial and on appeal was
deficient. Parker argues his trial counsel failed to investigate whether the blue
couch on which A.M. testified the molestation occurred was actually in the living
room at the time of the charged crimes. He also contends trial counsel failed to
uncover the fact that A.M. had watched a cartoon television show in which children
reported false allegations of sexual abuse to rid themselves of adults they did not
like. Finally, Parker maintains that appellate counsel was ineffective by failing to
argue that the trial court violated his constitutional right to a public trial when it
conducted off-the-record sidebar conferences.
STANDARD OF REVIEW
Parker has raised only constitutional errors in his petition—ineffective
assistance of counsel at trial and ineffective assistance of counsel on appeal. To
obtain relief in a collateral attack based on a constitutional error, a petitioner must
demonstrate by a preponderance of evidence that he was actually and
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substantially prejudiced by the alleged error. In re Pers. Restraint of Coggin, 182
Wn.2d 115, 119, 340 P.3d 810 (2014). A petitioner seeking a reference hearing
must offer facts underlying the claim and evidence to support the factual
allegations. In re Pers. Restraint of Yates, 177 Wn.2d 1, 18, 296 P.3d 872 (2013).
A petitioner must “demonstrate that he has competent, admissible evidence to
establish the facts that entitle him to relief.” In re Pers. Restraint of Ruiz-Sanabria,
184 Wn.2d 632, 636, 362 P.3d 758 (2015). “[Blare assertions and conclusory
allegations are insufficient.” ki.
Under the Sixth Amendment to the United States Constitution and article I
section 22 of the Washington State Constitution, a defendant in a criminal
proceeding is guaranteed the right to effective assistance of counsel. ~ In re
Pers. Restraint of Davis, 152 Wn.2d 647, 672, 101 P.3d 1(2004). To successfully
challenge the effectiveness of their assistance of counsel, a petitioner must satisfy
a two-part test. Id. The petitioner must show that “(1) defense counsel’s
representation was deficient, i.e., it fell below an objective standard of
reasonableness based on consideration of all the circumstances; and (2) defense
counsel’s 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 Wn.2d 322,
334-35, 899 P.2d 1251 (1995). “The United States Supreme Court has defined
reasonable probability as ‘a probability sufficient to undermine confidence in the
outcome.” Davis, 152 Wn.2d at 673 (quoting Strickland v. Washington, 466 U.S.
668, 669, 104 5. Ct. 2052, 2056, 80 L. Ed. 2d 674 (1984)). A reviewing court
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“approaches an ineffective assistance of counsel argument with a strong
presumption that counsel’s representation was effective.” Id.; see also McFarland,
127 Wn.2d at 335.
ANALYSIS
Parker raises three challenges to his legal representation. First, Parker
contends that his trial counsel failed to investigate whether the blue couch, on
which A.M. testified the events occurred, was actually in the living room when
Parker allegedly molested her. Second, Parker argues that his trial counsel failed
to investigate whether A.M. and R.M. had watched an episode of the television
show, South Park, in which one character instructed another on how to falsify
incidents of “molestering” to get rid of adults they did not like. Finally, Parker
contends that his appellate counsel was ineffective by not arguing Parker’s public
trial rights had been violated when the trial court conducted off-the-record sidebar
conferences.
1. The Blue Couch
A.M. testified that each time Parker molested her, they were lying down on
“Ron’s couch” in the living room watching television. While it was undisputed that
“Ron’s couch” was the “blue couch,” Parker now asserts that the blue couch was
in the dining room for the majority of the time A.M. lived in the home and that his
trial counsel was ineffective in failing to investigate where the blue couch was when
the alleged molestation occurred. Parker contends that had such an investigation
occurred, it would have undermined A.M.’s credibility.
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No. 78973-2-116
To support his blue couch claim, Parker submitted declarations from his
mother, Judy Burke, a friend, AIf Vatne, and A.M.’s teenage brother, Adam
MacCurdy. Burke testified the blue couch was in Parker’s dining room and not
within eyesight of the television until April or May of 2014, at which point it was
moved to the living room. Vatne and MacCurdy similarly testified that the blue
couch was in the dining room for ‘the vast majority of the time frame alleged in the
complaint.” Each witness declared that the blue couch was moved from the dining
room to the living room at some point, possibly in the spring of 2014. Parker
contends that, it Would have been impossible for him to see the television while
lying on the blue couch with A.M. before the spring of 2014. He argues this
evidence proves A.M.’s allegations are untrue.
A defense attorney has a duty to conduct a reasonable factual investigation
to make informed decisions about how best to represent the client. Davis, 152
Wn. 2d at 721. There is a strong presumption that the conduct of defense counsel
falls under the “wide range of reasonable professional assistance.” ki. “An
attorney’s action or inaction must be examined according to what was known and
reasonable at the time the attorney made his choices.” ld.at 722.
In this case, Parker does not argue that his trial counsel failed to interview
key material witnesses before trial. Indeed, trial counsel called Burke, Vatne and
MacCurdy to testify for Parker. None of these witnesses contend that they ever
told Parker’s trial counsel about the blue couch’s location in the dining room.
Parker, who also testified at trial and presumably has personal knowledge of when
his couch was in the living room, has provided no evidence that he or anyone else
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informed trial counsel that the blue couch was not moved to the living room until
the spring of 2014. And there is no evidence that trial counsel knew, but neglected
to elicit, this evidence during trial. In fact, during oral argument on this petition,
Parker’s counsel conceded that Parker probably did not tell his trial counsel that
the blue couch had been moved.
Instead, Parker merely asserts, without evidence, that his trial counsel had
an obligation to investigate “all possible defenses.” But Parker’s trial counsel
clearly investigated the defense of fabrication. Counsel effectively cross examined
R.M. about her “five point plan” to force her mother to leave Parker. R.M. admitted
that she wrote “I hate Ron” in bold letters in her journal. And counsel attempted to
get R.M. to admit that she put A.M. up to making false allegations about Parker.
While facts relating to the location of the blue couch would have furthered
Parker’s defense, Parker cites no authority for the proposition that an attorney is
ineffective for failing to discover facts about which that attorney is never put on
notice. Given that trial counsel had access to Parker and each of the declarants,
any contention that further investigation would have uncovered this exculpatory
evidence is speculative at best.
Moreover, even if a petitioner can show that exculpatory evidence unknown
to trial counsel would have been uncovered by further investigation or interview,
we must still consider whether counsel’s deficient performance actually and
substantially prejudiced the petitioner. Davis, 152 Wn.2d at 739. In evaluating
prejudice, ineffective assistance of counsel claims based on a duty to investigate
must be considered in light of the strength of the government’s case. j.ç[~
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Here, the State charged Parker with four counts of child rape and four
counts of molestation between August 17, 2012, when A.M. moved into Parker’s
home, and June 16, 2014, when A.M. was removed from his home. A.M. could
not recall at trial exactly when the instances of molestation occurred, but she was
able to describe multiple incidents all occurring on the blue couch. R.M. testified
that A.M. disclosed the molestation to her on the night before the last day of school
in June. Dearinger testified she then reported the crimes to the police in June
2014. If Parker relocated the blue couch into the living room in April 2014, as
Burke now testifies, and A.M. and Parker were together on that couch frequently,
as A.M. testified, there was still a significant amount of time during which the
molestation could have in fact occurred. The new evidence does not make the
rapes or molestation an impossibility.
And the State’s case was otherwise a strong one. R.M. corroborated the
blue couch’s location and observed Parker and A.M. lying together on the couch
covered by a blanket. J.M. also testified that he sawA.M. and Parker lying together
on their sides under a blanket while watching television. Dearinger identified the
blue couch as being located in the living room and recalled seeing A.M. and Parker
together on that couch. She testified that they watched television as a family at
least once a week, if not multiple times each week, and that Parker often asked
A.M. to sit with him on his couch. Dearinger reported that when A.M. disclosed the
molestation to her, AM. looked serious and was wringing her fingers. A.M.’s
reports of the molestation to her mother were consistent with her testimony at trial
and with the information she provided the child forensic interviewer. When
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Dearinger confronted Parker, he initially denied it but then said “like, well, maybe
when I was sleeping” it happened.
In light of the record before us, Parker has not carried his burden of
establishing that his trial counsel was ineffective in failing to discover that Parker’s
blue couch was in the dining room until April or May of 2014 or that the failure to
discover this evidence actually and substantially prejudiced Parker.
2. The South Park Episode
Parker contends that his trial counsel was also ineffective in failing to
discover that A.M. and R.M. repeatedly watched and may have been influenced
by an episode of the cartoon television show South Park entitled “The Wacky
Molestation Adventure.” In that episode, a young character learns that if he reports
false allegations of “molestering,” he can rid himself of adults he does not like.
Parker argues the failure to discover this fact adversely impacted him because it
would have supported the defense theory that A.M. and R.M. fabricated the
allegations as a way to get rid of Parker.
Parker has presented MacCurdy’s declaration to substantiate this claim.
But as we have indicated, an attorney must be on notice of some allegation or fact
in order to determine whether to investigate it. See Davis, 152 Wn. 2d at 722.
MacCurdy, whom trial counsel called as a defense witness at trial, does not allege
that he told Parker’s trial counsel about the South Park episode. There is certainly
no declaration from Parker’s trial counsel to support the contention that he was
made aware of the fact and neglected to investigate it. Because the record does
not indicate that Parker’s trial counsel was ever made aware of this episode of
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South Park, it cannot be said that he was ineffective for not discovering it. While
the evidence would have been relevant, had MacCurdy actually told trial counsel
about it, there is simply no basis for us to conclude that Parker’s trial counsel had
notice that either A.M. or R.M. knew of or had watched this show. Without this
evidence, Parker has not established a prima facie case of ineffective assistance
of counsel warranting a reference hearing or the reversal of his conviction.
3. Public Trial Right
Finally, Parker argues that his appellate counsel was ineffective for failing
to argue that his constitutional right to a public trial was violated when the trial
conducted off-the-record sidebar conferences. A petitioner raising ineffective
assistance on appeal must show that the legal issue that counsel failed to raise
had merit and must then show that he was prejudiced by appellate counsel’s failure
to raise the issue. In re Pers. Restraint of Dalluge, 152 Wn.2d 772, 778, 100 P.3d
279 (2004).
Article I, section 22 of the Washington State Constitution and the Sixth
Amendment to the United States Constitution guarantee a “public trial by an
impartial jury.” But the public trial right is not absolute. State v. Wise, 176 Wn.2d
1, 9,288 P.3d 1113 (2012). Our courts use a three-step framework to determine
whether a defendant’s public trial rights have been violated. State v. Smith, 181
Wn.2d 508, 514, 334 P.3d 1049 (2014). First, we ask whether the proceeding
implicates the public trial right. ki. Second, if the right attaches, we then ask
whether the courtroom was closed. ki. at 520. Third, if the courtroom was closed,
we ask whether the closure was justified. kI.
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Our Supreme Court has adopted the experience and logic test to determine
whether a proceeding implicates the public trial right, the first prong of the three
step framework. The first part of the test, the experience prong, “asks whether the
place and process have historically been open to the press and general public.”
Id. at 514 (quoting State v. Sublett, 176 Wn.2d 58, 72, 292 P.3d 715 (2012)). The
second part of the test, the logic prong, “asks whether public access plays a
significant positive role in the functioning of the particular process in question.” ki.
In Smith, our Supreme Court held that the right to a public trial does not
extend to sidebar conferences because “[s}idebar conferences have historically
occurred outside the view of the public” and “deal with mundane issues implicating
little public interest.” ~ at 515-16. In discussing the logic prong, the court noted
that “evidentiary rulings that are the subject of traditional sidebars do not invoke
any of the concerns the public trial right is meant to address regarding perjury,
transparency, or the appearance of fairness.” Id. at 518. It reasoned that
evidentiary rulings, exclusively within the province of the trial judge, do not aid the
public and “allowing the public to ‘intrude on the huddle” would add nothing
positive to sidebars in our courts. k1.
Here, Parker has not demonstrated that the sidebar conferences extended
beyond “mundane issues implicating little public interest.” The sidebars occurred:
during voir dire, before and during A.M.’s cross-examination, before R.M.’s direct
examination, during J.M.’s testimony, during Dearinger’s testimony, before the
testimony of the child interview specialist, during MacCurdy’s testimony, after
Burke’s testimony, after Vatne’s direct examination, and during Parker’s testimony.
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Parker concedes that many of these sidebar conferences occurred to
discuss scheduling or were in response to an evidentiary objection. He has
presented no evidence that the sidebars involved anything other than such routine
matters. Although the trial court certainly should have recorded the side bars or
memorialized them after-the-fact under Smith, it does not follow that the trial court
violated Parker’s public trial right by not doing so. Based on this record, the sidebar
conferences did not implicate Parker’s public trial rights. Because this claim lacks
merit, Parker’s appellate counsel was not ineffective in deciding to forego this issue
on direct appeal.
We deny Parker’s personal restraint petition.
WE CONCUR:
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