Filed Washington State Court of Appeals Division Two
November 8, 2022
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In the Matter of the Personal Restraint Petition No. 55745-2-II of:
JOHNNY W. MILLER, JR., UNPUBLISHED OPINION
Petitioner.
WORSWICK, J. — Johnny Miller seeks relief from personal restraint imposed following
his convictions for three counts of first degree rape of a child and two counts of first degree child
molestation arising out of acts committed against AG. Miller argues that his trial counsel was
ineffective because counsel failed to (1) effectively cross-examine AG, (2) retain or consult a
medical expert, and (3) investigate medical evidence. Miller also argues his sentence included
an unconstitutionally vague condition. The State concedes the sentencing error.
We hold that counsel was not ineffective, but, that Miller’s sentence included an
unconstitutionally vague condition. We grant Miller’s Personal Restraint Petition (PRP) in part
and remand to the trial court to strike or revise the vague community custody condition. We
otherwise deny the petition.
FACTS
Miller was AG’s mother’s boyfriend. Miller lived with AG, AG’s mother, and AG’s
younger brother. When AG was between the ages of eight and eleven years old, Miller sexually
abused AG almost every day. AG reported the abuse to a friend three months after Miller moved
out. No. 55745-2-II
After an investigation, Miller was charged with three counts of first degree rape of a child
and two counts of first degree child molestation. Miller waived his right to a jury trial.
During a two-day bench trial, the State called ten witnesses, including AG, AG’s brother,
AG’s parents, and Dr. Kimberly Copeland, a sexual abuse pediatrician. AG testified to the
abusive acts. She also testified that she had experienced a burning and itching sensation after the
abuse.
On cross-examination, counsel asked AG when the abuse started, the family’s living
arrangements, and the number of times Miller abused AG. He asked if anyone else had ever
noticed or seen Miller abuse AG. He also questioned why AG never reported the abuse for three
years, and AG testified that she was scared. He then specifically asked why AG never told her
mother, her parents, or others and if her mother had ever told her to report any sexual abuse.
Counsel then asked AG how many times Miller had raped her when she was in the fourth grade,
and AG answered: “Probably about more than a hundred.” 1 Report of Proceedings (RP) at 42.
Counsel elicited from AG that she experienced burning and itching after the assaults, and
counsel asked AG “did you ever have to go to your mom and tell her that you had some
problems in your vaginal area – it was itching – it was burning?” 1 RP at 46. Initially, AG said
she did not. Counsel followed up by asking whether her mom ever had her examined by a doctor
for any pain or discomfort in her private areas, and AG said she did not recall. Counsel then
asked about specifics of how and why AG told her friend about the abuse, and he asked about
AG’s mental health. AG testified that she had tried to harm herself following the abuse.
The State then called AG’s brother who testified that Miller would spend time with AG
alone in the bedroom behind a locked door on a daily basis. AG’s parents testified that AG had
been complaining of pain in her private area, and that AG had suicidal thoughts.
2 No. 55745-2-II
The trial court admitted a recorded interview between AG and Dr. Copeland, who had
examined AG. During AG’s conversation with Dr. Copeland, she said that Miller made her
watch pornographic materials. AG also informed Dr. Copeland that she was suicidal and was
concerned about those thoughts. AG also described specific ways in which Miller had abused
her, including that he had been abusing her ever since she was eight years old by inappropriately
touching her and having intercourse with her. AG also complained of pain and scarring in her
private areas.
Miller’s counsel asked the court to disregard the information introduced at the interview:
I realize why this was played but there’s some stuff that came out that was not brought out when [AG] was on the stand.
So basically I’m going to ask the court to – to disregard those things that [AG] told the doctor about in this interview that were not brought out on the stand.
And basically I can’t cross examine her on those issues. For example the pornography and the suicide stuff. That never came out when she was on the stand.
. . . [S]he’s a witness and I can’t confront her with that now. ....
. . . I can’t cross examine her. How can I cross examine her on the issues that she just raised on this interview?
1 RP at 187-88.
The trial judge declined Miller’s request to disregard the evidence. The following exchange
occurred:
COURT: There’s no confrontation problem because the witness was here on the stand and available to be cross examined about–questioned about things including any statements that she might have made to others relating to the issue.
COUNSEL: But those were not brought out in the scope of the State’s direct is what I’m saying. So I could cross examine her if they were but they weren’t.
3 No. 55745-2-II
COURT: Okay. Well I would have allowed you if you would have asked the questions that she made prior inconsistent statements or statements that she didn’t make before to Dr. Copeland–I would have allowed you to ask those questions. If you want to recall the witness and ask her about it you’re certainly free to do that. But there’s no confrontation issue as a result.
COUNSEL: I would like to recall to talk about this case then.
COURT: Okay. Well once we get through with the State’s case . . . if you want to recall her . . . then recall her.
1 RP at 189.
Dr. Copeland also testified that the findings from AG’s physical exam, although
consistent with abuse, were not definitive of sexual abuse and were “non-specific.” 1 RP at 191.
She testified that the redness she observed during the physical exam could be related to a number
of reasons unrelated to sexual abuse, like hygiene, a foreign body, or friction with clothing.
After the conclusion of witness testimony, Miller’s counsel informed the court that he
would not recall AG. Counsel said that Miller told his counsel that he did not think it was
necessary to do so.
The court convicted Miller of three counts of first degree rape of a child and two counts
of first degree child molestation. The court sentenced Miller to an exceptional sentence.
Petitioner’s sentence included a condition that he may “not enter into a romantic relationship”
with another adult who has minor children without the approval of his sexual deviancy treatment
provider and the Department of Corrections. Clerk’s Papers (CP) at 38.
Miller appealed, and we affirmed his conviction. State v. Miller, No. 53157-7, slip op. at
1-3 (Wash. Ct. App. Jan. 12, 2021) (unpublished).1 Miller then filed this timely personal
restraint petition.
1 https://www.courts.wa.gov/opinions/pdf/D2%2053157-7-II%20Unpublished%20Opinion.pdf.
4 No. 55745-2-II
ANALYSIS
Where a petitioner has had a prior opportunity for judicial review, the petitioner must
show in his PRP that he was “actually and substantially prejudiced by constitutional error or that
[his] trial[] suffered from a fundamental defect of a nonconstitutional nature that inherently
resulted in a complete miscarriage of justice.” In re Pers. Restraint of Coats, 173 Wn.2d 123,
132, 267 P.3d 324 (2011).
When we review a PRP, we can either dismiss or deny the petition, “transfer the petition
to a superior court for a full determination on the merits or a reference hearing, or [] grant the
petition.” In re Pers. Restraint of Yates, 177 Wn.2d 1, 17, 296 P.3d 872 (2013); RAP 16.11(b).
Denial is appropriate “where a petitioner fails to make a prima facie showing of actual
prejudice”; granting the petition is appropriate if the petitioner shows actual prejudice; and, “a
hearing is appropriate where the petitioner makes the required prima facie showing ‘but the
merits of the contentions cannot be determined solely on the record.’” Yates, 177 Wn.2d at 17-
18 (quoting In re Pers. Restraint of Hews, 99 Wn.2d 80, 88, 660 P.2d 263 (1983)).
I. INEFFECTIVE ASSISTANCE OF COUNSEL
Miller argues that he received ineffective assistance of counsel for three reasons:
(1) counsel failed to effectively cross-examine AG, (2) counsel failed to retain a consulting or
testifying medical expert to assist in the defense, and (3) counsel failed to investigate medical
evidence. We disagree with all of Miller’s arguments.
The United States Constitution and our state constitution guarantee a right to effective
counsel at all stages of a criminal case. WASH. CONST. art. I, § 22; U.S. CONST. amend. VI. To
establish ineffective assistance of counsel, a defendant must show that counsel’s performance
5 No. 55745-2-II
was (1) deficient, and (2) resulted in prejudice. Strickland v. Washington, 466 U.S. 668, 687,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
Performance is deficient if it falls below an objective standard of reasonableness based on
all the circumstances. Strickland, 466 U.S. at 687-88. Conduct that may be characterized as
legitimate trial strategy or tactics does not constitute deficient performance. State v. Grier, 171
Wn.2d 17, 33, 246 P.3d 1260 (2011). Prejudice is “‘a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.’” Yates,
177 Wn.2d at 36 (quoting Strickland, 466 U.S. at 694). If a defendant fails to show either prong
of the ineffective assistance of counsel test, our inquiry need go no further. In re Pers. Restraint
of Davis, 152 Wn.2d 647, 673, 101 P.3d 1 (2004).
There is a strong presumption that counsel’s assistance was effective. State v.
McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
A. Cross-Examining AG
Miller argues that counsel was ineffective for failing to effectively cross-examine AG
because he failed to elicit alleged inconsistencies in AG’s testimony. He argues that AG’s
recorded interview with Dr. Copeland was inconsistent with her testimony at trial.2 We disagree.
“Courts generally entrust cross-examination techniques . . . to the professional discretion
of counsel.” Davis, 152 Wn.2d at 720. An attorney is not deficient for failing to cross-examine
a witness simply because, in retrospect, he could have more efficiently attacked a witness’s
credibility. Davis, 152 Wn.2d at 720. We recognize that the extent of cross-examination is
2 Miller argues that counsel failed to cross-examine AG about inconsistencies in her testimony and “new statements” made to Dr. Copeland. PRP at 11. However, Miller does not specify which statements were inconsistent or new.
6 No. 55745-2-II
something the attorney must decide quickly and in the heat of the moment. Davis, 152 Wn.2d at
720. In order to establish prejudice from deficient cross-examination, the petitioner must show a
reasonable probability that, but for counsel’s error, the outcome of the trial would be different.
Davis, 152 Wn.2d at 720.
Miller’s argument is somewhat ambiguous. Miller claims that his counsel “declined to
pursue any further questioning to effectively test the credibility of [AG’s] statements.” PRP at 9.
Miller also argues that counsel should have cross examined AG regarding new facts mentioned
in the forensic interview with Dr. Copeland. But Miller does not explain what questions counsel
should have asked, or which specific facts needed to be tested. Instead, Miller argues that “[t]he
record in this case clearly demonstrates that there was new information which came to light
during Dr. Copeland’s testimony and the tape of the forensic interview that was not addressed
during the alleged victim’s direct testimony.” Reply PRP of Pet’r at 7. But we do not formulate
arguments for an appellant. See RAP 10.3(a)(6). In his reply brief, Miller mentions that the
forensic interview included the fact that Miller exposed AG to pornography and that AG had
suicidal ideation. Therefore, we interpret Miller’s argument to be related to these two issues, and
should not scour the record for any other potential inconsistencies.
Here, counsel’s decision not to cross-examine AG on these two issues falls within the
range of reasonable representation. During AG’s conversation with Dr. Copeland, AG informed
Dr. Copeland that she was suicidal. AG also informed Dr. Copeland that Miller made her watch
pornographic materials. AG also complained of pain, and scarring in her private areas.
AG’s testimony was not inconsistent with her statements to Dr. Copeland. AG testified
that Miller sexually abused her almost every day since she turned eight years old. AG testified
7 No. 55745-2-II
that she had been struggling with self-harm. AG’s father also testified that AG had been having
suicidal thoughts.
Counsel cross-examined AG about when the abuse started, how many times Miller
abused her, and why AG did not report the abuse sooner. Counsel asked about AG’s itching and
burning, and he questioned why AG’s mother never took her to the doctor to address those
symptoms. Counsel then asked about AG’s mental health, including her suicidal thoughts.
Miller’s counsel thoroughly cross-examined AG—he asked her questions about the
abuse, the pain she complained of, the manner and frequency of the abuse, and other details. The
only apparent inconsistencies between the testimony AG gave at trial and her statements to Dr.
Copeland, was that Miller showed AG pornography. Although counsel chose not to recall AG
and re-examine her on this issue, there is a wide range of reasonable possibilities as to why he
chose not to. Counsel may have not wanted AG to testify to details of the pornography because
these details likely would have been unfavorable to Miller. Thus, counsel’s performance was not
unreasonable, and therefore not deficient.
Even if counsel’s failure to cross-examine AG had been deficient, Miller cannot establish
prejudice. In order to establish prejudice from deficient cross-examination, the petitioner must
show that the testimony to be elicited had a reasonable probability of changing the outcome of
the proceedings. See Davis, 152 Wn.2d at 720. Here, the trial court heard testimony from AG,
AG’s parents, AG’s counselor, AG’s family, and AG’s friends. The testimonies were largely
consistent and the timeline was consistent. Miller has not shown that had counsel cross-
examined AG about her taped interview that Miller would not have been found guilty.
Thus, Miller has not shown that his counsel was ineffective for failing to effectively
cross-examine AG because counsel’s performance was neither deficient nor prejudicial.
8 No. 55745-2-II
B. Retaining or Consulting a Medical Expert
Miller also argues that trial counsel was ineffective for failing to retain a consulting or
testifying expert to rebut the evidence introduced by the State’s medical expert, Dr. Copeland.
We disagree.
“‘Generally the decision whether to call a particular witness is a matter for differences of
opinion and therefore presumed to be a matter of legitimate trial tactics.’” In re Pers. Restraint
of Morris, 176 Wn.2d 157, 171, 288 P.3d 1140 (2012) (plurality opinion) (quoting Davis, 152
Wn.2d at 742). “This presumption of counsel’s competence can be overcome . . . by showing
counsel failed to conduct appropriate investigations to determine what defenses were available,
adequately prepare for trial, or subpoena necessary witnesses.” Davis, 152 Wn.2d at 742. We
consider the nature of the charge and the issues presented when determining whether “effective
assistance of counsel [would] require the assistance of expert witnesses to test and evaluate the
evidence against a defendant.” State v. A.N.J., 168 Wn.2d 91, 112, 225 P.3d 956 (2010). Even if
a defendant can show that counsel was deficient for failing to retain an expert, he must still show
that the failure prejudiced him. Yates, 177 Wn.2d at 35-36.
Here, Dr. Copeland testified that the findings from AG’s physical exam, although
consistent with abuse, were not “definitive of sexual abuse” and were “non-specific.” 2 RP at
200. She also explained that the redness she observed during AG’s physical exam could have
been caused by a number of reasons unrelated to any sexual abuse such as friction from clothing
or issues with hygiene.
Even assuming that counsel was deficient for failing to retain or consult a medical expert,
Miller fails to show how that failure could have prejudiced him. Miller does not argue that the
failure to retain a medical expert prejudiced him and the record does not support such a finding.
9 No. 55745-2-II
Here, Dr. Copeland’s testimony produced objective and non-conclusive findings. Her testimony
did not confirm or deny any allegations of abuse, so there was nothing for a medical expert to
rebut or deny. Thus, the failure to retain a medical expert did not prejudice Miller. And, because
Miller cannot show prejudice, his argument does not support a claim of ineffective assistance of
counsel.
Miller cites to In re Pers. Restraint of Farris, No. 71055-9-I, slip op. at 5 (Wash. Ct.
App. Mar. 24, 2014) (unpublished) and Gersten v. Senkowski, 426 F.3d 588, 607 (2d Cir. 2005)
to support his argument that failure to retain a medical expert constitutes ineffective assistance of
counsel. But these cases are factually distinguishable.
In Farris, Division One of this court concluded that defense counsel was ineffective for
failing to retain a medical expert. Farris, 180 Wn. App. at 2, 18. In Farris, the defendant was
charged with one count of rape of a child. Farris, 180 Wn. App. at 1. A medical expert who had
examined the victim five years after the alleged assault, testified that the victim’s exam was
consistent with “penetrating vaginal trauma.” Farris, 180 Wn. App. at 4. The defense did not
retain a medical expert to rebut the evidence presented by the State’s medical expert. Farris, 180
Wn. App. at 4-5. Farris submitted a declaration from a medical expert disputing the accuracy
and reliability of the State’s medical expert. Farris, 180 Wn. App. at 12. Defense counsel
admitted that his failure to call an expert was not a trial tactic. Farris, 180 Wn. App. at 11.
Division One noted that “[m]edical evidence is considered one of the strongest types of
corroborating evidence,” and held that counsel was ineffective for failing to retain an expert
because
[t]here was no direct physical evidence such as DNA or third party eyewitness testimony. Thus, Dr. Vader’s medical testimony “was central not only because it constituted the most extensive corroboration that any crime occurred, but because
10 No. 55745-2-II
to undermine it would undermine the alleged victim’s credibility and thus the entire prosecution case.”
Farris, 180 Wn. App. at 14.
Miller also cites to a federal case, Gersten, where the second circuit court held that
counsel’s representation was ineffective because he failed to retain a medical expert. Gersten,
426 F.3d at 610-11. In Gersten, a medical expert described injuries as being “highly suggestive
of penetrating trauma to the hymen.” Gersten, 426 F.3d at 595. The petitioner submitted
affidavits from medical experts who stated that the victim’s physical exam did not reveal any
evidence of abuse. Gersten, 426 F.3d at 600, 608. The court reasoned that because Gersten’s
trial counsel failed to consult a medical expert, he “essentially conceded that the physical
evidence was indicative of sexual penetration.” Gersten, 426 F.3d at 607-08.
These cases are distinguishable. In both Gersten and Farris, the medical testimony
appeared to corroborate the victims’ statements, and the defendants clearly showed how
testimony by a rebutting medical expert would have offered alternative explanations for the
victim’s injuries. Gersten, 426 F.3d at 608, Farris, 180 Wn. App. at 13-14. Here, to the
contrary, Miller introduced no evidence showing that any medical expert could have rebutted the
evidence introduced by Dr. Copeland. See Gallegos v. Ryan, 820 F.3d 1013, 1035-36 (9th Cir.
2016) (noting that defense counsel’s failure to retain a medical expert was not ineffective
because defense counsel was unable to obtain anyone who could contradict the State’s medical
expert). In fact, Miller does not even argue how the failure to retain an expert may have
prejudiced him, let alone produce any evidence of such.
Thus, because Miller fails to show that defense counsel’s failure to retain a medical
expert prejudiced him, his claim of ineffective assistance of counsel fails.
11 No. 55745-2-II
C. Investigating Medical Evidence
Miller argues that counsel was ineffective for failing to investigate medical evidence. We
disagree.
To prevail under a “failure to investigate” theory, an individual “must show a reasonable
likelihood that the investigation would have produced useful information not already known to
defendant’s trial counsel” And that the failure to investigate prejudiced the defendant. Davis,
152 Wn.2d at 739. Even if a defendant can show that counsel was deficient for failing to
investigate, the court must still consider whether counsel’s deficient performance prejudiced the
defendant. Davis, 152 Wn.2d at 739. “In evaluating prejudice, ‘ineffective assistance claims
based on a duty to investigate must be considered in light of the strength of the government’s
case.’” Davis, 152 Wn.2d at 739 (quoting Rios v. Rocha, 299 F.3d 796, 808-09 (9th Cir. 2002)).
Here, Miller argues, without citation or support in the record, that counsel “failed to
perform even a basic investigation,” and had an investigation been conducted, counsel
“presumably could have produced corroborating medical evidence and/or expert witnesses
defending against the prosecution.” PRP at 17. Miller admits “whether any information
supporting an affirmative defense would have been revealed is largely speculative.” Reply PRP
of Pet’r at 11.
Miller relies on unsupported, conclusive, and speculative facts to argue that counsel
failed to investigate medical evidence. To meet his burden of showing ineffective assistance of
counsel under a “failure to investigate” theory, Miller “must show a reasonable likelihood that
the investigation would have produced useful information not already known” by trial counsel.
Davis, 152 Wn.2d at 739 (emphasis added). Speculation is not a reasonable likelihood. Thus,
12 No. 55745-2-II
Miller fails to meet his burden of showing that counsel’s performance was deficient or that any
deficiency prejudiced him.
Miller fails to show ineffective assistance of counsel.
II. UNCONSTITUTIONALLY VAGUE SENTENCING CONDITION
Miller argues that his sentence included an unconstitutionally vague condition that he
must not enter into a “romantic relationship” with another adult who has minor children. Suppl.
Br. of Pet’r at 5. The State concedes this issue. We accept the State’s concession.
Courts may impose crime related prohibitions as conditions of a sentence. RCW
9.94A.505(9). However, under the Fourteenth Amendment to the United States Constitution and
article I, section 3 of the Washington Constitution, due process “requires that citizens have fair
warning of proscribed conduct.” State v. Bahl, 164 Wn.2d 739, 752, 193 P.3d 678 (2008) (citing
City of Spokane v. Douglass, 115 Wn.2d 171, 178, 795 P.2d 693 (1990)). A community custody
condition that does not provide this warning is unconstitutionally vague and may be reversed.
Bahl, 164 Wn.2d at 752-53, -62. A term is “unconstitutionally vague if it ‘(1) . . . does not
define the criminal offense with sufficient definiteness that ordinary people can understand what
conduct is proscribed, or (2) . . . does not provide ascertainable standards of guilt to protect
against arbitrary enforcement.’” Bahl, 164 Wn.2d at 752-53 (citing Douglass, 115 Wn.2d at
178).
Here, the trial court imposed the following condition:
You shall not enter into a romantic relationship with another person who has minor children in their care or custody without prior approval of [Department of Corrections] and your sexual deviancy treatment provider.
CP at 38.
13 No. 55745-2-II
Our Supreme Court previously stated that the term “romantic” is subjective and can
provoke endless debate. State v. Nguyen, 191 Wn.2d 671, 682-83, 425 P.3d 847 (2018). Other
divisions of this court have similarly held that the term “romantic relationship” is
unconstitutionally vague. State v. Peters, 10 Wn. App. 2d 574, 591, 455 P.3d 141 (2019).
However, our Supreme Court has held that the term “dating relationship” was a more definite
term that withstands constitutional muster. Nguyen, 191 Wn.2d at 683; State v. Johnson, 197
Wn.2d 740, 748, 487 P.3d 893 (2021). Because the term “romantic relationship” is
unconstitutionally vague, but the term “dating relationship” passes constitutional muster, we
remand to the trial court to modify the condition to strike the term “romantic relationship,” and if
appropriate, include the term “dating relationship.”
CONCLUSION
We grant Miller’s PRP in part and deny in part and remand to the trial court to strike or
revise the vague community custody condition consistent with this opinion.
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.
Worswick, J. We concur:
Glasgow, C.J.
Price, J.