FILED
MARCH 17, 2022
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 37493-9-III
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
HEATH C. VANDINE, )
)
Appellant. )
PENNELL, J. — Heath Vandine appeals his convictions for rape of a child in the
first and second degree, along with statutory aggravators. We affirm.
FACTS
Mr. Vandine is the father of A.D.V.,1 who was born in 2003. In 2017, A.D.V.
reported ongoing sexual abuse by Mr. Vandine. The first assault took place when A.D.V.
1
To protect the privacy interests of the child victim, we use their initials
throughout this opinion. Gen. Order 2012-1 of Division III, In re the Use of Initials or
Pseudonyms for Child Victims or Child Witnesses, (Wash. Ct. App. June 18, 2012),
https://www.courts.wa.gov/appellate_trial_courts/?fa=atc.genorders_orddisp&ordnumber
=2012_001&div=III.
No. 37493-9-III
State v. Vandine
was six years old. The majority of the abuse occurred several years later, after A.D.V.
reached adolescence.
Mr. Vandine has degenerative disk disease and would frequently ask A.D.V. to
massage his back. Mr. Vandine’s massage requests occurred several times a week and
would often lead to abusive sexual contact. On one occasion, A.D.V. reported a different
type of assault; she claimed Mr. Vandine picked her up, turned her upside down, and
assaulted her while she was upside down.
A.D.V. did not disclose Mr. Vandine’s abuse until she reached high school. At that
point, one of her confidants was her aunt. After learning of A.D.V.’s allegations, the aunt
took A.D.V. into her home and to the police. As part of the law enforcement response,
the aunt was instructed by Child Protective Services to help A.D.V. to complete a rape
kit. The aunt was not told where to go to have a rape kit performed. She took A.D.V. to
her family clinic.
A.D.V. had a walk-in appointment with a physician assistant (PA) at her aunt’s
clinic. The PA was not trained to administer a rape kit and did not do so. Instead, the PA
performed a physical examination, checking for injuries, pregnancy and sexually
transmitted diseases. The examination did not uncover any positive test results or physical
signs of abuse.
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State v. Vandine
The State charged Mr. Vandine with several counts of child rape. The case
proceeded to a jury trial held in November 2019. The State moved for admission of
A.D.V.’s statements to the PA under ER 803(a)(4) (medical treatment or diagnosis).
Mr. Vandine objected and the court overruled, explaining the purpose of the examination
was for A.D.V.’s health and safety.
As part of the voir dire, prospective jurors completed written questionnaires.
One area of inquiry apparently pertained to sexual assault and domestic violence.2 Jurors
who reported past experiences with sexual assault or domestic violence were brought
in for individual questioning by the court and parties.
Jurors 13 and 14 were among those brought in for individual questioning. Both
prospective jurors reported having family members who were victims of sexual assault.
Both repeatedly stated they could be fair and impartial, despite their past experiences.
Although he did not utilize all of his peremptory strikes, Mr. Vandine’s attorney did not
challenge juror 13 or 14. Jurors 13 and 14 sat on the final jury panel.
The jury heard from several witnesses at trial, including A.D.V., the PA, and
Mr. Vandine. Some of the testimony touched on Mr. Vandine’s back problems. The
2
The questionnaire is not part of the record on review. We discern the nature of
the questionnaire from context.
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No. 37493-9-III
State v. Vandine
defense did not call any medical or expert witnesses to discuss Mr. Vandine’s back
issues. During a pretrial hearing, defense counsel explained he was unable to obtain
Mr. Vandine’s medical records. As part of closing argument, Mr. Vandine argued that his
back condition prevented him from being capable of picking up A.D.V. and flipping her
upside down as she alleged.3
The jury found Mr. Vandine guilty as charged. The trial court imposed an
indeterminate sentence of 280 months to life imprisonment. Mr. Vandine timely appeals.
ANALYSIS
Assistance of counsel (investigation and presentation of a defense)
Mr. Vandine argues his trial attorney’s performance was deficient because he
failed to investigate and present a defense regarding Mr. Vandine’s physical capacity
to perform the sexually abusive acts alleged by A.D.V. To establish a claim of
ineffective assistance of counsel, the defendant must show both (1) deficient performance
and (2) prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984). Failure to establish either prong precludes relief from conviction.
State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996).
3
A.D.V.’s allegation that Mr. Vandine picked her up and had her upside down
formed the basis of count 4 of the information, second degree rape of a child.
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State v. Vandine
Mr. Vandine’s ineffective assistance claim fails because he cannot establish
prejudice. In this context, prejudice requires showing that but for defense counsel’s
deficient performance, there was “a reasonable probability that the outcome would have
been different.” State v. Cienfuegos, 144 Wn.2d 222, 227, 25 P.3d 1011 (2001).
This probability is “more than a ‘conceivable effect on the outcome.’” State v. Estes,
188 Wn.2d 450, 458, 395 P.3d 1045 (2017) (internal quotation marks omitted) (quoting
State v. Crawford, 159 Wn.2d 86, 99, 147 P.3d 1288 (2006)).
The record here fails to show that testimony from a medical expert would have
altered the outcome of Mr. Vandine’s case. The trial evidence indicated Mr. Vandine was
capable of a variety of physical activities, including sports and manual labor, despite his
back problems. It is far from obvious that an expert would have supported Mr. Vandine’s
claim that he was incapable of performing the acts described by A.D.V. Given this
circumstance, relief on appeal is inappropriate. Our disposition does not preclude
Mr. Vandine from seeking relief through a personal restraint petition with an expanded
factual record. See State v. Norman, 61 Wn. App. 16, 27-28, 808 P.2d 1159 (1991).
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No. 37493-9-III
State v. Vandine
Assistance of counsel (excusal or peremptory strikes during jury selection)
In addition to his arguments regarding lack of investigation, Mr. Vandine claims
his attorney performed deficiently by failing to request jurors 13 and 14 be removed from
the venire. Here, Mr. Vandine cannot show deficient performance.
Juror selection is generally understood as a matter of trial tactics. As such, counsel
receives considerable latitude in deciding whether to challenge a particular juror. See
State v. Lawler, 194 Wn. App. 275, 285, 374 P.3d 278 (2016). Even in instances where a
juror indicates a lack of objectivity, an appellant may not be able to show counsel’s
failure to challenge the juror was not due to tactical reasons. See id.
The record on review shows defense counsel had ample reason to decline for-
cause challenges against jurors 13 and 14. While jurors 13 and 14 both had past
experiences related to sexual assault, this is sadly not an uncommon circumstance. Both
jurors 13 and 14 stated clearly that, despite their past experiences, they would be able to
fairly adjudicate Mr. Vandine’s case. Mr. Vandine’s attorney likely surmised that an
attempt to challenge jurors 13 and 14 would be unsuccessful. It is not deficient
performance for an attorney to decline to move for relief when there would be little
chance of success on the merits. State v. Brown, 159 Wn. App. 366, 371, 245 P.3d 776
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No. 37493-9-III
State v. Vandine
(2011) (Defense counsel has “no duty to pursue strategies that reasonably appear unlikely
to succeed.”).
We also cannot say that the decision not to exercise peremptory challenges against
jurors 13 and 14 was not strategic. There might have been aspects of jurors 13 and 14 that
defense counsel felt were favorable. In addition, had jurors 13 and 14 been struck, then
two jurors further down the venire panel would have been added to the petit jury. Defense
counsel might have concluded jurors 13 and 14 were preferable to the jurors that would
have been included had jurors 13 and 14 been struck. We will not second guess this
strategic decision on appeal. See Lawler, 194 Wn. App. at 290.
Admission of statements under ER 803(a)(4)
Mr. Vandine contends the trial court erroneously admitted A.D.V.’s statements
to the PA under ER 803(a)(4). Our review is for abuse of discretion. State v. Young,
160 Wn.2d 799, 806, 161 P.3d 967 (2007). Discretion is abused when it is exercised on
untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12,
26, 482 P.2d 775 (1971).
Hearsay is any out-of-court statement offered to prove the truth of the matter
asserted. ER 801(c). Generally, hearsay is not admissible. ER 802. However, an exception
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No. 37493-9-III
State v. Vandine
exists for statements made for purposes of medical diagnosis or treatment. The applicable
rule provides:
Statements made for purposes of medical diagnosis or treatment and
describing medical history, or past or present symptoms, pain, or sensations,
or the inception or general character of the cause or external source thereof
insofar as reasonably pertinent to diagnosis or treatment.
ER 803(a)(4).
For a statement to be “reasonably pertinent” to medical diagnosis or treatment
under ER 803(a)(4), the declarant’s motive in making the statement must be to promote
treatment and the medical professional must have relied on it for the purposes of
treatment. State v. Doerflinger, 170 Wn. App. 650, 664, 285 P.3d 217 (2012).4 In most
instances, statements about the cause of a patient’s injuries are not pertinent to treatment
or diagnosis. State v. Butler, 53 Wn. App. 214, 220, 766 P.2d 505 (1989). But when
the injuries are attributed to child abuse, an exception applies. In such circumstances,
adequate treatment and injury prevention requires not only identifying the nature of the
child’s injuries, but also the source of the injury and risk of further abuse. Id. at 220-21.
4
The evidentiary test is distinct from the confrontation clause test, which looks to
the primary purpose of the interrogation. Michigan v. Bryant, 562 U.S. 344, 360, 131 S.
Ct. 1143, 179 L. Ed. 2d 93 (2011). Mr. Vandine does not allege a confrontation clause
violation. Given A.D.V. testified at trial, Mr. Vandine would not be able to make a prima
facie case of a confrontation clause violation. See Crawford v. Washington, 541 U.S. 36,
68, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
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No. 37493-9-111
State v. Vandine
The record here shows the motive behind A.D.V.'s consultation with the PA was
to receive medical treatment. The PA was not trained in forensic investigation and did not
purport to administer a rape kit. The only examination the PA was equipped to perform
was a normal gynecological exam. As part of the exam, it was appropriate for the PA to
ask A.D.V. questions about her ongoing safety, as well as the possibility of pregnancy or
sexually transmitted diseases. Given these circumstances, the examination properly
included questions regarding A.D.V. 's allegations of assault. The testimony was correctly
admitted under ER 803(a)(4). See State v. Scanlan, 193 Wn.2d 753, 768, 445 P.3d 960
(2019).
CONCLUSION
The judgment of conviction is 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.
Pennell, J.
WE CONCUR:
~~-.:r.
Fearing, J~ Staab, J.
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