Filed Washington State Court of Appeals Division Two
May 19, 2020 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II In the Matter of the Personal Restraint of No. 51119-3-II
JENNIFER LYNN MOTHERSHEAD, UNPUBLISHED OPINION Petitioner.
GLASGOW, J.—In 2013, a jury convicted Jennifer Lynn Mothershead of first degree assault
of a child. Between March and May 2011, Mothershead put prescription eye drops that had been
contaminated with bleach into the eyes of her 13-month-old daughter, who suffered painful
damage to her eyes and permanent vision loss. Mothershead received an exceptional 480-month
sentence based on the jury’s finding of three aggravating factors.
Mothershead filed a personal restraint petition (PRP), challenging her conviction on several
grounds, including ineffective assistance of counsel. Mothershead’s two main ineffective
assistance claims are that her counsel was ineffective (1) when she did not retain or continue
consulting with an expert after commissioning him for an initial assessment of the scientific
evidence, and (2) when she did not elicit a statement from Mothershead during her testimony
directly denying that she added anything to the eye drops.
Neither of these ineffective assistance claims merits reversal or a reference hearing.
Mothershead has not shown that she was prejudiced by counsel’s failure to retain an expert because
she has not shown what the expert would have said or a reasonable likelihood that expert testimony
would have changed the outcome of her trial. Mothershead also has not shown that she was No. 51119-3-II
prejudiced by counsel’s failure to ask whether she added anything to the eye drops because counsel
posed questions at the end of her direct examination that elicited the functional equivalent of a
denial. We also hold that none of Mothershead’s multiple other arguments entitles her to relief.
We deny Mothershead’s PRP.
FACTS
Jennifer and Cody Mothershead married in 2007. They had a daughter, KM, in February
2010. Jennifer1 and Cody were friends with another couple, Matthew Bowie and Courtney
Valvoda.2
At some point in 2010, Jennifer and Matthew began having an affair, unbeknownst to Cody
and Courtney. By early 2011, Jennifer and Cody were separated, and Jennifer was staying most
nights with Matthew and Courtney at their home in Black Diamond, Washington.
Jennifer was KM’s primary caretaker, and Cody saw KM rarely. Courtney worked full time
and was gone most of the day. Matthew worked sporadically in construction. Jennifer stayed home
with KM.
On March 23, 2011, Jennifer went horseback riding. KM played in the barn while Matthew
watched her. When Jennifer returned, KM’s left eye was swollen and “‘red around the edges,’” so
Jennifer took KM to her family physician, Dr. James Merril. State v. Mothershead, No. 73634-5-
I, slip op. at 3 (Wash. Ct. App. Mar. 28, 2016) (unpublished), http://www.
courts.wa.gov/opinions/pdf/736345.pdf. He thought KM had a scratched cornea, but could not find
1 We refer to Jennifer Mothershead by her first name only in the beginning of the facts section to distinguish her from Cody, but we refer to her as “Mothershead” throughout the rest of the opinion. 2 Courtney Valvoda became Courtney Bowie when she married Matthew Bowie in 2011.
2 No. 51119-3-II
evidence of a foreign body in KM’s eye, so he referred her to Mary Bridge Children’s Hospital in
Tacoma. The doctor at Mary Bridge was not able to detect any foreign body, but he prescribed
antibiotic ointment.
When Dr. Merril saw KM again on March 29, 2011, both of her eyes were red and her
eyelids were peeling and bleeding. He referred KM to Seattle Children’s Hospital, where she was
ultimately seen by the chief of the ophthalmology department, Dr. Avery Weiss, on April 11, 2011.
Between April 11 and May 12, 2011, KM’s condition continued to worsen. KM’s eyes
became nearly swollen shut, she was extremely light sensitive, her eyelids were red and irritated,
and blood vessels began growing into her corneas. Despite multiple office visits, tests, and research
by top experts at Seattle Children’s Hospital, no one could determine the cause of KM’s worsening
symptoms. Because her condition appeared most consistent with a bacterial infection, KM’s
doctors prescribed strong antibiotics (tobramycin and cefazolin), corticosteroid eye drops, generic
polysporic ointment, and oral antibiotics.
KM’s tobramycin and cefazolin were eye drops that had to be applied four times a day.
Jennifer usually administered them, often with Matthew’s or Courtney’s help. KM “‘fought’”
against having the drops put in her eyes, and this required more than one person because someone
had to hold KM down. Id. at 24. Matthew sometimes administered the eye drops. Courtney testified
that she may have also given the eye drops to KM herself. Cody testified at trial that he watched
Matthew administer the drops once, but never did it himself.
On May 11, 2011, Matthew and Courtney noticed that KM had a “‘soft spot’” on her head.
Id. at 6. Courtney insisted that she and Jennifer take KM to the doctor. The Enumclaw Medical
3 No. 51119-3-II
Center doctor who saw KM did a CAT3 scan and found a subdural hematoma. KM was airlifted
to Harborview Medical Center.
Harborview doctors diagnosed KM with a traumatic brain injury. Id. at 8. A hospital social
worker interviewed Jennifer, Courtney, and Cody when they arrived at Harborview because they
suspected child abuse. Harborview doctors also asked to examine the eye drops that Jennifer had
brought with her to Harborview.
Two Pierce County Sheriff’s detectives observed KM’s condition and interviewed
Jennifer, Courtney, and Cody. The detectives then placed KM in protective custody. One of the
Harborview doctors then opened the bottle containing KM’s eye medications. “‘[N]oxious smells
filled the room’” triggering “‘eye burning and nausea.’” Id. at 11. The detectives examined the
medications and also experienced the noxious odor and burning sensations. The detectives
acquired control samples of KM’s eye drops from the Seattle Children’s Hospital pharmacy for
comparison and brought the medications to the Washington State Patrol Crime Laboratory, where
they were placed in the evidence room.
Forensic scientists with the State Patrol crime lab and the United States Food and Drug
Administration (FDA) analyzed KM’s eye drops and the control samples, and all of them observed
differences between the tobramycin that KM had been receiving and the control sample. Based on
their tests, the FDA chemists concluded that KM’s tobramycin appeared to have been
contaminated with bleach.
Mothershead was charged with first degree assault of a child under RCW
9A.36.120(1)(b)(i), (ii)(A) and (ii)(B). Mothershead’s trial lasted one month. Dozens of witnesses
3 Computerized axial tomography.
4 No. 51119-3-II
testified for the State, including 15 expert witnesses. Ten medical doctors who were involved in
KM’s treatment testified about the nature of KM’s eye condition, their unsuccessful efforts to
diagnose and treat her, and the causes they considered as possible explanations for KM’s
symptoms.
Five forensic chemists from the FDA testified about the chemical composition of the
tobramycin eye drops. They agreed that KM’s eye drops contained chloride, a by-product that
would be expected if the eye drops had been contaminated with bleach.
The defense did not call its own expert witness to testify at trial. Defense counsel cross-
examined the State’s experts, seeking to discredit their testimony and cast doubt on the State’s
scientific evidence.
However, the dominant defense theory did not depend on raising doubt about the State’s
conclusions that a foreign chemical substance had been added to the eye drops. The defense instead
focused on creating reasonable doubt that Mothershead was the one who tampered with the eye
drops. During cross-examinations of the State’s witnesses and during direct examination of
Mothershead, the defense developed the theory that someone else had contaminated the eye drops.
During her testimony, Mothershead did not directly deny that she did not tamper with or
add anything to the eye drops. But her defense counsel’s final direct examination question was:
“Do you have any personal knowledge as to what’s been described from these drops of being a
dark color and smell and all that stuff?” Verbatim Report of Proceedings (VRP) (Oct. 1, 2013) at
131. Mothershead responded, “No. That’s nothing that I’ve seen.” Id.
In closing, the defense pointed out inconsistencies in the doctors’ testimony, emphasized
testimony about other potential causes of KM’s eye problems, and questioned whether the State
5 No. 51119-3-II
Patrol crime lab’s testing of the eye drops was “scientific.” VRP (Oct. 3, 2013) at 61. But the
defense essentially conceded that the drops were contaminated with a “noxious” substance,
arguing instead “that’s not stuff that Jenny did to it.” VRP (Oct. 3, 2013) at 63. Counsel argued
that Mothershead did not act guilty—she kept bringing KM back to doctors, she answered the
detectives’ questions, and she voluntarily handed over the eye drops. Counsel also emphasized
that Mothershead was not present just before KM’s first eye injury in the barn, nor was she present
just before KM’s head injury was discovered.
The jury convicted Mothershead of first degree assault. The jury also found by special
verdict that Mothershead used her position of trust to facilitate commission of the crime, that
Mothershead’s conduct manifested deliberate cruelty to KM, and that Mothershead knew or should
have known that KM was a particularly vulnerable victim. Based on the special verdicts, the trial
court sentenced Mothershead to an exceptional sentence of 480 months, followed by 36 months of
community custody, and a prohibition on contact with minor children.
Mothershead filed a timely appeal. Mothershead, No. 73634-5-I, slip. op. at 1-2. Division
One affirmed the judgment and sentence. Id. at 2. Mothershead timely filed this PRP.
ANALYSIS
A. PRP Standards
Relief via a collateral challenge to a conviction is an “extraordinary” remedy, and a
petitioner bringing a PRP “must ‘meet a high standard before [we] will disturb an otherwise [final]
judgment.’” In re Pers. Restraint of Finstad, 177 Wn.2d 501, 506, 301 P.3d 450 (2013) (quoting
In re Pers. Restraint of Coats, 173 Wn.2d 123, 132, 267 P.3d 324 (2011)). A personal restraint
petitioner must establish that his or her restraint was the product of either a constitutional error that
6 No. 51119-3-II
caused “actual and substantial prejudice” or a nonconstitutional fundamental defect that
“‘inherently result[ed] in a complete miscarriage of justice.’” In re Pers. Restraint of Swagerty,
186 Wn.2d 801, 807, 383 P.3d 454 (2016) (internal quotation marks omitted) (quoting In re Pers.
Restraint of Cook, 114 Wn.2d 802, 810-12, 792 P.2d 506 (1990)). The petitioner must prove error
by a preponderance of the evidence. In re Pers. Restraint of Monschke, 160 Wn. App. 479, 488,
251 P.3d 884 (2010). We hold a pro se petitioner to the same standard as an attorney. In re Pers.
Restraint of Rhem, 188 Wn.2d 321, 328, 394 P.3d 367 (2017).
When considering whether an error alleged in a PRP was prejudicial, courts look to “the
practical effects that result from the error.” In re Pers. Restraint of Yates, 180 Wn.2d 33, 41, 321
P.3d 1195 (2014); see also State v. Buckman, 190 Wn.2d 51, 64, 409 P.3d 193 (2018). The
petitioner has the burden of proving prejudice by a preponderance of the evidence under the totality
of the circumstances. In re Pers. Restraint of Brockie, 178 Wn.2d 532, 539, 309 P.3d 498 (2013).
The petitioner must support the petition by identifying the facts on which the claims are based and
the evidence supporting the factual allegations. RAP 16.7(a)(2)(i); Monschke, 160 Wn. App. at
488. The petitioner cannot “rely solely on conclusory allegations.” Id.
In evaluating a timely PRP, we have three options. We may: (1) deny the PRP “if the
petitioner fails to make a prima facie showing of constitutional or nonconstitutional error” resulting
in prejudice, (2) remand for a reference hearing “if the petitioner makes a prima facie showing but
the merits of the contentions cannot be determined solely from the record,” or (3) grant the PRP
with no hearing if the petitioner has proved both the required error and actual prejudice or a
miscarriage of justice. In re Pers. Restraint of Stockwell, 160 Wn. App. 172, 176-77, 248 P.3d 576
(2011).
7 No. 51119-3-II
“If the petitioner’s allegations are based on matters outside the existing record, [they] must
demonstrate . . . competent, admissible evidence to establish the facts that entitle [them] to relief.”
In re Pers. Restraint of Rice, 118 Wn.2d 876, 886, 828 P.2d 1086 (1992). A party’s own affidavit,
without corroborating evidence, may be insufficient to create a material disputed issue of fact
warranting a reference hearing. In re Pers. Restraint of Reise, 146 Wn. App. 772, 789, 192 P.3d
949 (2008).Where a petitioner relies on the knowledge of others to support a request for a reference
hearing, the petitioner must present a declaration or other corroborative evidence, rather than
merely speculating about what that person might say. Rice, 118 Wn.2d at 886. The declarant must
establish that the person can competently testify about the subject matter discussed in the
declaration. Id. The State is held to this same standard in its response. Reise, 146 Wn. App. at 780;
see also RAP 16.9.
B. Ineffective Assistance of Counsel
Mothershead raises several claims of ineffective assistance of counsel, contending that they
entitle her to a grant of her PRP, or at least a reference hearing. All of these claims lack merit.
The Sixth Amendment to the United States Constitution and article I, section 22 of the
Washington Constitution guarantee effective assistance of counsel. See Strickland v. Washington,
466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); see also State v. Grier, 171 Wn.2d
17, 32, 246 P.3d 1260 (2011). Ineffective assistance of counsel is a two-pronged inquiry. Grier,
171 Wn.2d at 32. To prevail, Mothershead must show that her counsel’s performance was deficient
and that counsel’s deficient performance prejudiced her. Id. at 32-33. A failure to prove either
prong ends our inquiry. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996).
8 No. 51119-3-II
Appellate courts apply “exceptional deference” when “evaluating counsel’s strategic
decisions,” and “[i]f trial counsel’s conduct can be characterized as legitimate trial strategy or
tactics,” it will not support a claim of ineffective assistance. State v. McNeal, 145 Wn.2d 352, 362,
37 P.3d 280 (2002). “To rebut the presumption of reasonableness, a defendant must establish an
absence of any legitimate trial tactic that would explain counsel’s performance.” In re Pers.
Restraint of Lui, 188 Wn.2d 525, 539, 397 P.3d 90 (2017). The petitioner must prove that
“counsel’s performance fell below an objective standard of reasonableness in light of all the
circumstances.” Id. at 538.
The petitioner must also prove prejudice. A petitioner must show that, but for counsel’s
deficient performance, “there is a reasonable probability that the result of the proceeding would
have been different.” Id. We examine the “practical effects” of alleged ineffective assistance.
Yates, 180 Wn.2d at 41; see also Buckman, 190 Wn.2d at 64. “[I]f a personal restraint petitioner
makes a successful ineffective assistance of counsel claim, he has necessarily met his burden to
show actual and substantial prejudice” for PRP purposes. In re Pers. Restraint of Crace, 174
Wn.2d 835, 846-47, 280 P.3d 1102 (2012).
1. Defense expert
Mothershead first argues that her trial counsel provided ineffective assistance of counsel
because she did not “adequately investigate a qualified defense expert’s exculpatory opinion.”
Pet’r’s Suppl. Opening Br. at 18-19, 22. Even if this were deficient performance, an issue we do
not decide, Mothershead has not demonstrated any resulting prejudice.
While preparing for trial, Mothershead’s counsel contacted Richard Pleus PhD, the director
of a private Seattle-based toxicology consulting firm. Dr. Pleus has a “post-doctoral specialization
9 No. 51119-3-II
in neuropharmacology and experience as a lecturer in eye toxicology.” Id., App. A at 2-3.
Mothershead’s counsel requested and received $5,000 from the Department of Assigned Counsel
for initial funding to retain Dr. Pleus.
Mothershead’s counsel sent Dr. Pleus lab data from the eye drop tests from the State Patrol
crime lab and the FDA laboratory. She also sent Dr. Pleus KM’s medical records and information
about the history of the case. In response, Dr. Pleus sent two letters to Mothershead’s counsel. In
the first, he gave what he referred to as his “initial opinion, subject to completing my research
thoroughly.” Id., App. B at 1. His initial opinion was that “the data provided . . . does not
scientifically support the Plaintiff’s case that the medication that was administered to [KM] caused
the adverse effects that are reported in the medical records.” Id. Dr. Pleus further noted, “I have
considered a number of possible scenarios, including that Ms. Mothershead did adulterate the
medication.” Id. Dr. Pleus briefly described the “general scope of work” required to complete his
review and estimated that it would cost an additional $8,000 to complete. Id.
In his second letter to trial counsel, Dr. Pleus reiterated his initial opinion and indicated
that he still needed to complete review of the forensic lab reports and other documents that had
already been provided. Mothershead’s counsel requested additional funding from the Department
of Assigned Counsel to continue working with Dr. Pleus, but her request was denied. She did not
continue pursuing Dr. Pleus’s investigation. Id.
When a petitioner’s evidence “is based on knowledge in the possession of others,” the
petitioner “must present their affidavits or other corroborative evidence” explaining what that
person would say. Rice, 118 Wn.2d at 886; see also In re Pers. Restraint of Davis, 152 Wn.2d 647,
740, 101 P.3d 1 (2004). Mothershead fails to establish what Dr. Pleus’s opinion ultimately would
10 No. 51119-3-II
have been or what he would testify. Mothershead has therefore failed to meet her prima facie
burden of showing prejudice.
Moreover, courts assessing the prejudice prong of “‘ineffective assistance claims based on
a duty to investigate must . . . [consider the claim] in light of the strength of the government’s
case.’” Davis, 152 Wn.2d at 739 (internal quotation marks omitted) (quoting Rios v. Rocha, 299
F.3d 796, 808-09 (9th Cir. 2002)). The State’s experts’ testimony amply demonstrated that the eye
drops were contaminated and that the contamination caused KM’s severe injuries. Even if the
defense had called Dr. Pleus to testify, the practical effect on the jury of one defense expert,
weighed against the testimony of the State’s 15 expert witnesses, would likely have been minimal.
Yates, 180 Wn.2d at 41. Defense counsel’s primary strategy at trial tacitly acknowledged this by
focusing on raising reasonable doubt as to who had contaminated the eye drops rather than on
trying to prove that the eye drops were not contaminated.
We also reject Mothershead’s argument that her counsel’s failure to continue working with
Dr. Pleus prejudiced her by interfering with counsel’s preparation for trial. Mothershead’s counsel
proficiently cross-examined the State’s expert witnesses, and in closing arguments effectively
recapped salient details of KM’s medical history and pointed out some inconsistencies about the
medical testimony.
Even if her counsel were deficient in not pursuing Dr. Pleus’s opinion as an expert, an issue
we do not decide, Mothershead has failed to make a prima facie showing that the alleged deficiency
caused prejudice. This claim of ineffective assistance of counsel therefore fails.
11 No. 51119-3-II
2. Failure to elicit a denial during Mothershead’s direct testimony
Mothershead argues that she was denied effective assistance of counsel when, during her
testimony, her counsel failed to elicit a direct denial that Mothershead tampered with the eye drops.
Had she been asked whether she added anything to the eye drops, Mothershead asserts that her
answer would have been “‘no.’” Personal Restraint Pet. at 13. Mothershead contends that her
counsel’s decision not to ask the “ultimate question” prejudiced her because the State “capitalized”
on her lack of denial. Pet’r’s Suppl. Opening Br. at 43-44. Even if Mothershead’s counsel were
deficient by not asking a question that elicited a direct denial of guilt, an issue we again do not
decide, we conclude that Mothershead has not shown any resulting prejudice.
Mothershead testified that she did not know that the eye drops were contaminated, an
answer that was obviously inconsistent with guilt. Mothershead’s counsel argued vigorously in her
closing argument that Mothershead was not guilty. She reiterated that Mothershead did not know
the eye drops were contaminated. She argued that other people had the motive and opportunity to
contaminate the eye drops. The overwhelming majority of the State’s closing argument was
comprised of arguments based on the evidence the State elicited from the 33 witnesses it called at
trial.
The fact that Mothershead did not explicitly deny that she had added anything to the eye
drops did not prevent defense counsel from arguing that Mothershead was not guilty, nor did it
give the State evidence it did not already have to argue Mothershead’s guilt. Mothershead has not
shown prejudice because she has not demonstrated that there was a reasonable probability that, but
for counsel’s failure to ask directly whether she tampered with the eye drops, the outcome of her
12 No. 51119-3-II
trial would have differed. See Grier, 171 Wn.2d at 34. This claim of ineffective assistance of
counsel also fails.
3. Preparing the defendant to testify
Mothershead argues that her counsel was ineffective by failing to sufficiently prepare her
to testify. Mothershead maintains that counsel never had a meeting “‘devoted solely’” to preparing
her to testify, counsel made her write her own direct examination questions, and counsel did not
explain the process of testifying or prepare her for cross-examination. Personal Restraint Pet., App.
A; Pet’r’s Reply to State’s Resp. at 7. Even if Mothershead’s counsel were deficient by failing to
prepare her to testify, an issue we do not decide, Mothershead has not shown that she was
prejudiced.
Mothershead testified articulately and thoroughly throughout her direct and cross-
examinations. Mothershead has not shown prejudice, because she has not established that more
preparation would have had any practical effect on the outcome of her trial, especially since she
was testifying about recent events from her own life that she should have been able to recall
without extensive preparation. See Yates, 180 Wn.2d at 41. This ineffective assistance claim also
fails.
4. Failure to object during Dr. Weiss’s testimony
Mothershead argues that she received ineffective assistance of counsel because her counsel
never objected during Dr. Weiss’s testimony. But contrary to this assertion, Mothershead’s counsel
did object during Dr. Weiss’s testimony. Counsel was thus not deficient for failure to object.
To the extent Mothershead argues that her counsel was ineffective by failing to object
specifically on the basis that Dr. Weiss’s testimony was “based on conjecture, perjury, speculation,
13 No. 51119-3-II
and unreliable content,” Personal Restraint Pet. at 15, this claim is based on matters outside the
record and Mothershead has not demonstrated that she has competent, admissible evidence
supporting the allegations. In re Pers. Restraint of Yates, 177 Wn.2d 1, 18, 296 P.3d 872 (2013).
This ineffective assistance claim also fails.
5. Failure to retain medical doctor
Mothershead argues that her counsel was ineffective by not retaining a medical doctor. For
the same reasons Mothershead was not prejudiced by her trial counsel’s decision to not continue
working with Dr. Pleus, we hold that she has failed to establish any resulting prejudice from the
absence of a medical doctor as a defense consultant or witness.
We therefore reject all of Mothershead’s claims of ineffective assistance of counsel.
C. Mothershead’s Other Arguments
1. State’s alleged failure to investigate other suspects
Mothershead argues that the State failed to fully investigate other people who had motive
and opportunity to tamper with KM’s eye drops including Cody, Courtney, and Matthew. We
reject this argument because the State did not improperly fail to investigate other suspects.
The State had a duty to “preserve all potentially material and favorable evidence,” but it
was not “require[d] . . . to search for exculpatory evidence.” State v. Armstrong, 188 Wn.2d 333,
345, 394 P.3d 373 (2017). Accordingly, the State had no duty to “search for exculpatory evidence”
by investigating the other people Mothershead suggests could have had access to KM and her eye
drops. Id. Even so, the Pierce County Sheriff’s detectives interviewed not just Mothershead, but
also Cody, Courtney, and Matthew. We therefore reject this argument.
14 No. 51119-3-II
2. Trial court’s exclusion of other suspect evidence
Mothershead further argues that the trial court abused its discretion by excluding testimony
about whether Matthew kept syringes with bleach in them in the room where KM slept. We reject
this claim because the trial court did not abuse its discretion by ruling against Mothershead’s
request to present this other suspect evidence.
“The standard for relevance of other suspect evidence is whether there is evidence ‘tending
to connect’ someone other than the defendant with the crime.” State v. Franklin, 180 Wn.2d 371,
381, 325 P.3d 159 (2014) (internal quotation marks omitted) (quoting State v. Downs, 168 Wash.
664, 667, 13 P.2d 1 (1932)). This means that “some combination of facts or circumstances must
point to a nonspeculative link between the other suspect and the charged crime.” Id.
The State filed a motion in limine to exclude other suspect evidence, and the trial court
ruled that other suspect evidence would only be admissible if “the defense [showed] a nexus
between the other suspect and the crime.” VRP (Sept. 9, 2013) at 10. The trial court later sustained
the State’s objection to evidence about Matthew’s syringes on relevancy grounds, citing its pretrial
ruling and the defense’s own admission that it lacked evidence that “this syringe even existed.”
VRP (Sept. 23, 2013) at 171. Because Mothershead has not shown nonspeculative evidence with
a nexus to the crime, the trial court did not abuse its discretion.
3. Admissibility of eye drop medications
Mothershead argues that the trial court erred by permitting the State to enter the eye drop
medications as evidence and permitting witnesses to testify about them. She asserts that the chain
of custody for this evidence was questionable, rendering its admission reversible error. We reject
this argument because the defense stipulated that the medications were “properly handled . . . in
15 No. 51119-3-II
accordance with evidentiary procedures, protocols, and requirements” and were admissible. VRP
(Oct. 1, 2013) at 21. Thus, this issue was not properly preserved.
In addition, even if the parties had not stipulated to the admissibility of KM’s medications,
there was no need to establish a chain of custody for this evidence and it was properly admitted.
“Evidence that is unique and readily identifiable may be identified by a witness who can state that
the item is what it purports to be.” State v. Roche, 114 Wn. App. 424, 436, 59 P.3d 682 (2002).
Only where evidence is not readily identifiable is it subject to the “more stringent test” that the
evidence’s proponent “establish a chain of custody ‘with sufficient completeness to render it
improbable that the original item . . . [was] exchanged . . . or . . . contaminated or tampered with.’”
Id. (quoting United States v. Cardenas, 864 F.2d 1528, 1531 (10th Cir.1989)).
KM’s medications were unique and readily identifiable because they were labeled with
identifying information. Accordingly, all that was required was for one of the State’s witnesses to
identify the evidence. See Roche, 114 Wn. App. at 436. This is exactly what happened at trial when
the State asked Courtney to identify the medication bottles.
4. Sufficiency of the evidence
Mothershead argues that the evidence presented at trial was insufficient to prove her guilt
beyond a reasonable doubt. We reject this argument because Mothershead has not shown that the
State’s evidence was insufficient for a rational jury to find beyond a reasonable doubt that
Mothershead committed the charged offense.4
4 To the extent that Mothershead argues there was insufficient evidence that she and not some other suspect committed the crime, those issues were raised and rejected on her direct appeal. Mothershead, No. 73634-5-I, slip op. at 32-37; see also In re Pers. Restraint of Khan, 184 Wn.2d 679, 693, 363 P.3d 577 (2015). To the extent Mothershead argues there was insufficient evidence of intent, specifically, that argument is addressed below.
16 No. 51119-3-II
To prevail on her sufficiency of the evidence claim, Mothershead needs to clear a high bar.
“Evidence is sufficient to support a guilty verdict if any rational trier of fact, viewing the evidence
in the light most favorable to the State, could find the elements of the charged crime beyond a
reasonable doubt.” State v. Cardenas-Flores, 189 Wn.2d 243, 265, 401 P.3d 19 (2017).
“Circumstantial and direct evidence are to be considered equally reliable.” Id. at 266. We will not
review the jury’s determinations about witness credibility. Id.
To the extent Mothershead argues that circumstantial evidence of her guilt was insufficient,
this evidence was as reliable as direct evidence and, taken together, was sufficient for a rational
jury to convict. The entire trial lasted over two weeks, and the State presented 33 witnesses,
including the doctors who treated KM, forensic scientists who analyzed the eye drops she received,
and detectives who interviewed Mothershead, as well as Matthew, Courtney, and Cody. The jury
needed only to make rational inferences from their testimony to conclude that Mothershead knew
the drops were adulterated when she administered them to KM.
Mothershead also argues that the State did not present sufficient evidence for the jury to
infer that she intentionally assaulted KM. We reject this claim, because the jury found that
Mothershead acted with deliberate cruelty and because this finding was upheld on appeal. The
same evidence presented to show deliberateness is also sufficient to establish intent to harm.
5. Discussion of KM’s head injury
Mothershead asserts that the offense for which she was charged did not involve KM’s head
injury and that the trial court erred under ER 403 by permitting witnesses to discuss this injury at
trial. We reject this argument because Mothershead did not preserve it. We will not review
arguments based on evidentiary objections unless the objection was preserved at trial. State v.
17 No. 51119-3-II
Guloy, 104 Wn.2d 412, 422, 705 P.2d 1182 (1985). Mothershead never objected at trial to the
discussion of KM’s head injury.
6. Dr. Weiss’s expert opinion testimony
Mothershead argues that the trial court erred under ER 702 by permitting Dr. Weiss’s
testimony as an expert and on the grounds that the testimony was not based on medical science.
We reject this argument because Mothershead did not preserve this issue. See id. Mothershead did
not object to Dr. Weiss’s credentials, nor did she object on any other grounds.
7. Disproportionate sentence
Mothershead contends that her 480-month sentence is disproportionate to similarly situated
defendants because it was “four times the high end of the standard range” for an offender with an
equivalent offender score. Personal Restraint Pet. at 8. She argues that other defendants convicted
of first degree assault of a child, including cases in which a jury also found some of the same
aggravating factors, received substantially shorter sentences. Mothershead asks this court to
remand for resentencing. We reject this claim because Mothershead already raised this argument
on direct appeal and Division One rejected it.
A personal restraint petitioner may not raise an issue that was already resolved on direct
review unless the petitioner shows that the “interests of justice require reconsideration.” In re Pers.
Restraint of Khan, 184 Wn.2d 679, 693, 363 P.3d 577 (2015). “[R]aised and rejected on direct
appeal” means that the ground “presented in the petition was determined adversely to the petitioner
on appeal and the prior determination was on the merits.” Davis, 152 Wn.2d at 671 n.14.
On direct appeal, Mothershead argued that “insufficient evidence supports the jury finding
the aggravating factors, and the 480-month sentence imposed by the court is clearly excessive.”
18 No. 51119-3-II
Mothershead, No. 73634-5-I, slip. op. at 50. Division One disagreed, holding that “the jury’s
finding on the aggravating factors constituted ‘substantial and compelling reasons justifying an
exceptional sentence outside the standard range.’” Id. at 55.
We conclude that Mothershead has not established that the interests of justice require
reviewing her exceptional sentence again. Division One recognized that a trial court abuses its
discretion in imposing an exceptional sentence only where the trial court relies on an impermissible
reason or unsupported facts, or where the sentence is so long that it shocks the conscience. Id. at
54. Here, the trial court explained that Mothershead repeatedly placed a toxic substance in her
young daughter’s eyes multiple times per day over a period of weeks. We do not revisit Division
One’s legitimate conclusion that Mothershead’s exceptional sentence was not excessive. See id. at
55.
8. Cumulative error
Mothershead finally argues that cumulative error deprived her of her right to a fair trial.
She argues the cumulative effect of her counsel’s errors collectively caused prejudice sufficient to
warrant reversal. Mothershead also points to the cumulative effect of the other errors she raises.
“Under the cumulative error doctrine, we may reverse a defendant’s conviction when the
combined effect of errors during trial effectively denied the defendant [their] right to a fair trial,
even if each error standing alone would be harmless.” State v. Venegas, 155 Wn. App. 507, 520,
228 P.3d 813 (2010). The doctrine does not require reversal where “the errors are few and have
little or no effect on the trial’s outcome.” Id. The burden is on the petitioner to prove cumulative
error.
19 No. 51119-3-II
Mothershead has not established any error that entitles her to relief. Accordingly, we hold
that Mothershead’s cumulative error claim fails.
CONCLUSION
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
Glasgow, J. We concur:
Maxa, J.
Sutton, A.C.J.