Filed Washington State Court of Appeals Division Two
September 15, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II In the Matter of the Personal Restraint of: No. 54108-4-II
JOSEPH LEROY FUGLE, UNPUBLISHED OPINION Petitioner,
LEE, C.J. — Joseph L. Fugle seeks relief from personal restraint following his convictions
for first degree child molestation, two counts of first degree rape of a child, and second degree rape
of a child. In this personal restraint petition (PRP), Fugle alleges that (1) his constitutional right
to a jury trial was violated when the State’s witnesses were permitted to offer improper opinion
testimony as to his guilt, (2) his right to due process was violated when the State’s witnesses
testified to scientific evidence that does not satisfy the Frye1 standard, and (3) he received
ineffective assistance of counsel. We deny Fugle’s PRP.
FACTS
A. CRIMINAL CHARGES
The State charged Fugle with one count of first degree child molestation, two counts of
first degree rape of a child, and one count of second degree rape of a child based on allegations
made by Fugle’s stepson, M.G.2 M.G. alleged that Fugle sexually abused him for seven years.
1 Frye v. United States, 293 F. 1013, 34 A.L.R. 145 (D.C. Cir.1923). 2 Because M.G. was a child at the time of the abuse we use his initials to protect his privacy. General Order 2011-1 of Division II, The Use of Initials or Pseudonyms for Child Witnesses in Sex Crime Cases (Wash. Ct. App.). No. 54108-4-II
At Fugle’s trial, M.G. testified that Fugle abused him from the age of 7 until approximately
14. M.G. detailed numerous acts of sexual abuse Fugle committed against him. M.G. further
testified about the threats of violence Fugle used to prevent M.G. from disclosing the abuse.
M.G. also testified regarding the various physical, emotional, and memory conditions he
had experienced since the abuse stopped. M.G. stated that he did not recall the abuse from 14-18
years old. M.G. explained he began to remember the abuse when he began experiencing flashbacks
at age 18. Prior to experiencing the flashbacks, M.G. had his gallbladder removed. M.G. also
suffered from chronic pain and fatigue. M.G. saw various medical doctors to determine the cause
of the pain and fatigue, but no physical cause of the pain and fatigue was identified.
When M.G. began having flashbacks of the abuse, he told his maternal grandmother,
Jeanette Jepson. A short time later, M.G. and Jepson told M.G.’s mother, Jana Fugle.
After these disclosures, M.G. suffered a pseudoseizure3 which resulted in his
hospitalization. M.G. testified that, after the pseudoseizure, he was left with no personal memories
except for memories of the sexual abuse committed by Fugle. Approximately two months after
suffering the pseudoseizure, M.G. reported the abuse to law enforcement.
B. STATE’S MEDICAL TESTIMONY AT TRIAL
The State presented testimony from M.G.’s treating physicians and counselors. Each
witness’s testimony relevant to this PRP is summarized below.
Dr. John Daniel is a family physician who was treating M.G. as his primary care provider.
Dr. Daniel began treating M.G. in 2013 because of M.G.’s worsening pain and fatigue. Dr. Daniel
3 A pseudoseizure is a term for a seizure that occurs without corresponding epileptic brain activity.
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diagnosed M.G. with suffering from fibromyalgia and referred him to the University of
Washington to confirm the diagnosis. Dr. Daniel also referred M.G. to a rheumatologist,
gastroenterologist, and a neurologist. Dr. Daniel saw M.G. again a few months later because the
pain had not improved and neither the rheumatologist nor the University of Washington had been
able to identify a cause. Dr. Daniel advised M.G. to continue to see the remaining specialists. Dr.
Daniel also saw M.G. after his pseudoseizure and dissociative amnesia. Although Dr. Daniel noted
that M.G. had been diagnosed with PTSD and dissociative amnesia, Dr. Daniel explained those
diagnoses came from outside medical sources.
Dr. Susan Poole is a psychologist who specializes in trauma counseling. Dr. Poole testified
that she was a clinician familiar with PTSD and dissociative disorders from treating patients
presenting with those disorders. Dr. Poole also testified that about one-third to one-half of her
case load is comprised of patients with PTSD. She explained a patient is diagnosed with PTSD
using the criteria in the Diagnostic and Statistical Manual Fifth Edition (DSM-5). Similarly,
dissociative amnesia can be associated with PTSD and is diagnosed with the DSM-5.
Dr. Poole began treating M.G. in April 2014. When M.G. first met with Dr. Poole, he told
her he wanted to deal “with the symptoms and struggle he was having after having been sexually
abused by his stepfather [Fugle].” VI VRP at 551. After the initial session Dr. Poole diagnosed
M.G. with PTSD and dissociative amnesia. When specifically asked to describe dissociative
amnesia, Dr. Poole explained,
So dissociative amnesia is an inability to recollect parts of one’s memory. So they can be entirely general for all memories. It can be specific. We commonly see, with trauma, some form of dissociative amnesia for certain memories. That’s very common where, over time, different memories will come back in time, but it can
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be all the way to extreme of having no memories for periods of time. It can also be specific to certain types of relationships as well.
VI VRP at 546-47.
Dr. Poole began regular individual therapy sessions with M.G. as part of his treatment.
Over time, M.G. began to share more information about his memories of the abuse. Dr. Poole
testified that when M.G. shared his memories, her primary role was simply to listen to him. She
testified that she did not ever help him develop specific memories because counselors have to be
careful about not inserting any memories that are not actually there. When explaining how M.G.’s
disclosure of his memories developed during therapy, Dr. Poole testified,
[Dr. Poole:] He just told me that—I’m not sure what the triggering event was around that. I just know that he began to have flashbacks and nightmares is the way in which that the memories returned.
....
[STATE:] Well, based on your training and experience, is there something that can cause them to suddenly come back?
[Dr. Poole:] And that—yes, there could be. Certainly, just the fact of being older and suddenly being—perceiving being safer. The memories—at some point, the subconscious realizes that it does not have to protect in the same way. There may have been an event or something that had that occur as well, but he did not report on what that triggering event was to me.
VI VRP at 560-62. Dr. Poole clarified that the memories were not completely gone, but instead
there was just a problem with retrieving the specific memory.
Dr. Poole also testified that she last saw M.G. regularly a year and a half before the trial.
However, she had met with him prior to trial to help him cope with his anxiety over testifying.
During these sessions, M.G. reviewed the timeline of the abuse. Dr. Poole clarified that M.G.’s
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review of the timeline of the abuse was “exactly the same” and “came from him.” VI VRP at 565.
Finally, Dr. Poole testified that M.G.’s symptoms were consistent with a person who had suffered
childhood trauma.
On cross-examination, Dr. Poole explicitly stated that, as a therapist and clinician she
accepted what her patients told her as true. It is not her role to question what patients report. Dr.
Poole also clarified that a diagnosis for the purposes of therapy was not the same as a forensic
diagnosis.
Dr. David Tauben is a physician that specializes in pain management. Dr. Tauben began
treating M.G. when he was referred for unexplained widespread pain and associated neurological
and endocrinological difficulties. By the time he saw Dr. Tauben, M.G. had already seen numerous
other specialists in an attempt to find a cause for his chronic pain. Dr. Tauben referred M.G. to a
neurologist for some neurological testing. After the workup was completed, no physiological
cause had been identified for the pain, and Dr. Tauben was concerned about M.G.’s degree of
psychological distress.
Dr. Tauben scheduled an appointment with M.G. on July 3, 2014, to discuss the next steps
of M.G.’s diagnosis and treatment. During the July 3 appointment, M.G. informed Dr. Tauben
about the abuse, PTSD, and dissociative amnesia. Dr. Tauben administered a four question
screening questionnaire for PTSD.
Dr. Tauben testified that based on the criteria in DSM-5, he diagnosed M.G. with “Post
traumatic stress disorder from prolonged interval sexual abuse. Physical symptoms generated by
central nervous system sensitization consequent to abuse exposure.” VRP (6/13/16) at 725. Dr.
Tauben also testified that PTSD often presents with physical symptoms such as chronic pain and
5 No. 54108-4-II
that understanding PTSD is an important part of treating the presentation of chronic pain. Dr.
Tauben explained that “[w]idespread muscle pain and his fatigue could be fully accounted for, in
my judgment and experience, by the early life sexual abuse exposure.” VRP (6/13/16) 725. Dr.
Tauben also explained that, although he will suggest that a patient’s pain may be related to PTSD,
he is very careful to not to suggest a particular type a trauma that caused the PTSD or chronic pain.
Dr. Tauben noted that a wide variety of experiences or events can result in PTSD and associated
chronic pain.
On cross examination, Dr. Tauben repeatedly explained that his diagnosis was based on
self-reported information provided by M.G. Tauben also stated that he accepted M.G.’s statements
because it was not his role to contest M.G.’s assertions.
C. VERDICT, SENTENCING, AND DIRECT APPEAL
The jury found Fugle guilty of all four charged counts. The trial court imposed a standard
range sentence. Fugle appealed his conviction and sentence.4
On direct appeal, Fugle argued that the trial court erred by admitting expert testimony
regarding delayed disclosure and by limiting the scope of M.G.’s cross-examination. Fugle also
argued that insufficient evidence supported the jury’s verdict. Fugle also challenged his offender
score and voir dire. We affirmed Fugle’s convictions and sentence, and issued a mandate
terminating review on October 9, 2018.5
4 State v. Fugle, (Wash. Ct. App. May 8, 2018) (unpublished), http://www.courts.wa.gov/opinions/pdf/D2%2049332-2-II%20Unpublished%20Opinion.pdf 5 Mandate, No. 49332-2-II (October 9, 2018).
6 No. 54108-4-II
D. ADDITIONAL EVIDENCE SUBMITTED IN SUPPORT OF THE PRP
Fugle has submitted three categories of additional evidence in support of his PRP: (1)
scientific evidence in the form of expert declarations, (2) interviews and emails from Fugle’s
friends and neighbors, and (3) evidence regarding Fugle’s trial counsel’s actions during the trial.
Fugle submitted three expert declarations regarding memory and the link between trauma
and PTSD. Dr. Gerald Rosen is a clinical psychologist. Dr. Rosen declared that PTSD symptoms
cannot prove the validity of the alleged stressor that is claimed to have caused the symptoms. He
also opined that therapists’ opinions are vulnerable to error because they rely exclusively on what
patients report and, therefore, cannot substitute for forensic assessments and diagnosis. Dr. Rosen
also explained how false memories can be based on a person’s sincere belief and can have
significant effects on the people who hold them. Finally, Dr. Rosen documented the intense debate
over the existence of repressed and recovered memories.
Dr. Daniel Reisberg, who testified at trial, submitted an additional declaration after
reviewing the trial testimony of the State’s medical witnesses. Dr. Reisberg claims that the ideas
of repressed or suppressed memories and dissociative amnesia would not meet the Frye test for
admissibility. He also noted that dissociative amnesia is related to the forgetting of memories and
has nothing to do with whether those memories can be recovered in the future. Dr. Reisberg asserts
that the scientific evidence makes it more likely that M.G.’s memories are false memories, rather
than repressed and recovered true memories.
Dr. Mark Whitehill is a licensed psychologist specializing in conducting forensic
evaluations and investigations. Dr. Whitehill declared that M.G.’s therapeutic assessments were
insufficient to establish a valid diagnosis. He also opined that a diagnosis of PTSD does not
7 No. 54108-4-II
indicate that the symptoms were caused by a particular trauma. Dr. Whitehill claimed that there
is no scientific basis supporting the idea that M.G. recovered repressed memories of abuse. Dr.
Whitehill also claimed that it was more likely M.G. was suffering from a factitious disorder rather
than PTSD. A factitious disorder is a condition in which a person, without a malingering motive,
acts as if they have an illness by deliberately producing, feigning, or exaggerating symptoms,
purely to attain a patient’s role. Dr. Whitehill concluded by noting that he had never, in 32 years
of practice, encountered a fact pattern as unusual as the one presented in this case.
Fugle also submitted emails and interviews with Fugle’s friends, family, and neighbors
supporting Fugle. And Fugle submitted a declaration from his mother which claimed that M.G.
intended to break up his mother’s marriage to Fugle and that she often saw M.G. exaggerate his
physical ailments in front of his mother. Similarly, interviews with Fugle’s neighbors, the Van
Nettas and the Pagays, conducted before trial identify specific times neighbors believed they saw
M.G. faking symptoms of illness, manipulating his mother with his physical ailments, lying in
general, acting inconsistently with his claimed amnesia, and expressing a desire to break up
Fugle’s marriage with his mother.
Finally, Fugle submitted some emails between the State and Fugle’s trial counsel. These
emails generally establish that, although trial counsel initially attempted to schedule interviews
with the State’s medical witnesses, trial counsel did not actually interview the witnesses prior to
trial.
One of the attorneys working on Fugle’s PRP also submitted a declaration outlining some
of his contacts with trial counsel while preparing the PRP. The declaration states that trial counsel
was asked to submit a declaration but was unable to do so before the deadline to file the PRP.
8 No. 54108-4-II
Because trial counsel did not submit a declaration, Fugle’s PRP attorney submitted the declaration
to communicate “the general gist that I understand [trial counsel’s] position to be regarding several
of the points I am making on Mr. Fugle’s behalf.” Petition (Appx. H.) at 3.6 Specifically, the
declaration noted that trial counsel did not remember if he interviewed the State’s medical
witnesses but was not surprised by their trial testimony. The declaration also noted that trial
counsel stated that he did not request a Frye hearing because none of the State’s witnesses were
identified as expert witnesses. And the declaration noted that trial counsel stated that he did not
call Fugle’s neighbors as witnesses because of a strategic decision made during trial.
ANALYSIS
A. STANDARDS FOR RELIEF IN A PRP
“Relief by way of collateral challenge to a conviction is extraordinary, and the petitioner
must meet a high standard before this court will disturb an otherwise settled judgment.” In re Pers.
Restraint of Coats, 173 Wn.2d 123, 132, 267 P.3d 324 (2011). To be entitled to relief in a PRP,
the petitioner must show either (1) a constitutional error resulting in actual and substantial
prejudice, or (2) “a fundamental defect of a nonconstitutional nature that inherently resulted in a
complete miscarriage of justice.”7 In re Pers. Restraint of Finstad, 177 Wn.2d 501, 506, 301 P.3d
6 We note that Appendix H of the Petition, Declaration of Mick Woynaroski, does not contain page numbers. Thus, for purposes of this opinion, we number the pages 1-8 starting from the first page of the declaration. 7 The State extensively argues that our review of the issues raised in Fugle’s PRP are barred from review by RAP 2.5(a) because they were not raised in the trial court. However, our Supreme Court has stated, “As to RAP 2.5, this rule pertains to the court’s discretion to hear issues on appeal or review that were not objected to at trial. The rule does not govern a petitioner’s burden in a PRP.” In re Pers. Restraint of Stockwell, 179 Wn.2d 588, 602, 316 P.3d 1007 (2014).
9 No. 54108-4-II
450 (2013). When reviewing a PRP, we may (1) deny the petition, (2) grant the petition, or (3)
transfer the petition to the superior court for a reference hearing. In re Pers. Restraint of Yates,
177 Wn.2d 1, 17, 296 P.3d 872 (2013); In re Pers. Restraint of Schreiber, 189 Wn. App. 110, 113,
357 P.3d 668 (2015).
When the petitioner’s allegations are based on matters outside of the existing record, the
petitioner must show that competent, admissible evidence supports the allegations. In re Pers.
Restraint of Rice, 118 Wn.2d 876, 886, 828 P.2d 1086, cert. denied, 506 U.S. 958 (1992). If the
evidence is based on knowledge that is in the possession of others, the petitioner must present
affidavits of those witnesses or else other corroborative evidence. Id. Factual allegations must be
based on more than speculation, conjecture, or inadmissible hearsay. Id.
B. COMPETENT, ADMISSIBLE EVIDENCE
As an initial matter, we must determine what evidence is properly considered in support of
Fugle’s PRP. Although Fugle has attached a significant amount of information to his PRP, not all
of it is competent, admissible evidence that warrants consideration. Id. As noted above, Fugle has
Here, we are presented with a PRP, which is a collateral attack, rather than a direct appeal.
As a general rule, “collateral attack by [PRP] on a criminal conviction and sentence should not simply be a reiteration of issues finally resolved at trial and direct review, but rather should raise new points of fact and law that were not or could not have been raised in the principal action, to the prejudice of the defendant.”
In re Pers. Restraint of Davis, 152 Wn.2d 647, 670-71, 101 P.3d 1 (2004) (footnote omitted) (quoting In re Pers. Restraint of Gentry, 137 Wn.2d 378, 388-89, 972 P.2d 1250 (1999)). Therefore, rather than addressing whether Fugle raises issues for the first time on appeal—a direct appeal standard—we address whether Fugle has met his burden to establish grounds for relief in a PRP: a constitutional error resulting in actual and substantial prejudice or a fundamental defect of a nonconstitutional nature that inherently resulted in a complete miscarriage of justice.
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submitted three categories of additional evidence in support of his PRP: (1) scientific evidence in
the form of expert declarations, (2) interviews and emails from Fugle’s friends and neighbors, and
(3) evidence regarding Fugle’s trial counsel’s actions during the trial. Each is addressed below.
1. Scientific Evidence
Fugle submitted expert declarations as scientific evidence. All the expert declarations are
properly sworn and based on the expert’s knowledge, training, and experience. Thus, the scientific
evidence submitted with the PRP is properly before this court. See id.
2. Evidence from Friends and Neighbors
The declaration from Fugle’s mother in the form of a sworn declaration is properly before
this court. See id. However, Fugle also submitted various evidence from Fugle’s friends and
neighbors, the majority of which is not competent, admissible evidence.
The emails from Fugle’s friends and neighbors are not accompanied by any authenticating
affidavits or declarations and are therefore not competent, admissible evidence. Id. ER 901(a)
requires authentication as a condition precedent to the admissibility of emails. Authentication of
an email requires testimony from someone with personal knowledge that can establish the email
is what it purports to be. ER 901(b)(10). Because Fugle has not submitted any affidavits or
declarations authenticating the emails from his friends and family, they are not competent,
admissible evidence. Rice, 118 Wn.2d at 886.
Similarly, the interview summaries that Fugle submitted are inadmissible hearsay.
“‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter asserted.” ER 801(c). Hearsay is
inadmissible unless an exception or exclusion applies. ER 802. Here, although the investigator
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who conducted the interviews submitted a declaration authenticating the interview summaries
themselves, the declaration does not address the hearsay statements contained in the interview
summaries. The statements Fugle’s friends and neighbors made to the investigator and outlined
in the interview summaries are inadmissible hearsay. See Rice, 118 Wn.2d at 886. Therefore, the
statements in the interview summaries are not competent, admissible evidence that Fugle can rely
on to support his claims.
3. Evidence Regarding Trial Counsel’s Action
In support of his claims regarding ineffective assistance of counsel, Fugle submitted emails
between the State and Fugle’s trial counsel. Fugle also submitted a declaration from his PRP
counsel regarding PRP counsel’s general understanding of trial counsel’s statements relating to
the issues raised on appeal.
Like the emails from Fugle’s friends and neighbors, the emails between the State and
Fugle’s trial counsel are unauthenticated. Therefore, the emails are inadmissible under ER 901.
Accordingly, the emails between the State and Fugle’s trial counsel are not competent, admissible
evidence that can support Fugle’s claims. Rice, 118 Wn.2d at 886.
And the declaration from Fugle’s PRP counsel is not competent, admissible evidence
regarding trial counsel’s statements. To the extent that the declaration recites statements made by
Fugle’s trial counsel, trial counsel’s alleged statements are inadmissible hearsay. ER 801, ER 802.
Any information regarding the reasons for trial counsel’s decisions is knowledge within trial
counsel’s possession. Therefore, the appropriate mechanism for presenting that evidence is
through a proper affidavit or declaration from trial counsel. Rice, 118 Wn.2d at 886. Accordingly,
Fugle has not presented competent, admissible evidence regarding his trial counsel’s statements.
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C. OPINION TESTIMONY VIOLATING THE RIGHT TO A JURY TRIAL
First, Fugle argues that his right to a jury trial was violated when the State’s witnesses
opined on his guilt by testifying that M.G.’s PTSD diagnosis was related to sexual abuse. Given
the facts of this case, we disagree.
Generally, no witness may offer testimony in the form of an opinion regarding the guilt or
veracity of the defendant; such testimony is unfairly prejudicial to the defendant because it invades
the exclusive province of the jury. State v. Kirkman, 159 Wn.2d 918, 927, 155 P.3d 125 (2007)
(citing State v. Demery, 144 Wn.2d 753, 759, 30 P.3d 1278 (2001)). Opinion testimony “can be
defined as ‘testimony based on one’s belief or idea rather than on direct knowledge of the facts at
issue.’” Demery, 144 Wn.2d at 760 (quoting BLACK’S LAW DICTIONARY 1486 (7th ed. 1999)).
Because impermissible opinion testimony invades the province of the jury, it is a constitutional
error. Kirkman, 159 Wn.2d at 927.
State v. Florczak, 76 Wn. App. 55, 74, 882 P.2d 199 (1994), review denied, 126 Wn.2d
1010 (1995), discusses the line between a proper opinion regarding a medical diagnosis of PTSD
and an improper opinion that invades the province of the jury. Testimony about a diagnosis of
PTSD is not improper when it is based on identifying the behavioral symptoms that support the
diagnosis. Id. As long as the testimony does not state that a PTSD diagnosis or the associated
behaviors substantiate the claim the sexual abuse occurred, no error results from the admission of
that testimony. Id. However, when the witness identifies the specific trauma that caused the
victim’s PTSD—indicating that the witness reached an independent determination that the trauma
actually occurred—then the witness improperly renders an opinion on an ultimate fact within the
13 No. 54108-4-II
province of the jury. Id. Furthermore, if the defendant is the only person implicated as the
potential abuser, such testimony also amounts to an improper opinion on the defendant’s guilt. Id.
However, there are factual distinctions between Florczak and this case, which make the
apparent rule in Florczak inapplicable here. In Florczak, the investigation was initiated because,
during a traffic stop, police officers found the defendants in possession of a sexually explicit nude
photograph of the victim, K.T. Id. at 58. K.T. was three years old at the time. Id. Based on the
discovery of the photograph, K.T. was referred for assessment at the Eastside Sexual Assault
Center for Children for “an opinion about whether the photograph caused any injury to KT and
whether any other abuse had occurred.” Id. at 59. The social worker who performed the
assessment testified, “‘When we give the child post-traumatic stress, it can be to any traumatic
event. It is secondary, in this case, in [K.T.]’s case, to sexual abuse.’” Id. at 62. It does not appear
that K.T. testified at the trial. Id. at 58-63.
In contrast, here, M.G. was a teenager at the time he saw Dr. Poole, Dr. Daniel, and Dr.
Tauben. And none of these witnesses saw M.G. with the purpose of determining whether sexual
abuse took place. Rather, Dr. Poole, Dr. Daniel, and Dr. Tauben were all treatment providers M.G.
saw in order to deal with the physical and psychological symptoms he was experiencing. Most
significantly, these witnesses clearly testified that, in their role as a treatment provider, they
accepted M.G.’s statements as true, without making any independent assessment as to veracity.
In Florczak, the social worker’s testimony was an improper opinion on K.T.’s veracity and
the defendants’ guilt because it necessarily implied that the social worker evaluated the truth of
K.T.’s disclosures and concluded they were sufficiently reliable to determine that sexual abuse had
occurred. Here, the challenged witnesses offered no opinion on M.G.’s veracity or on Fugle’s
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guilt because it was established that, in their role as treatment providers, they accepted M.G.’s
disclosures as true without making an independent assessment of their reliability or veracity. And
it was not the treatment providers’ role to assess whether any actual abuse occurred, but only to
develop a treatment plan for M.G.’s complaints. Even Fugle’s expert, Dr. Rosen, agreed that the
therapists’ opinions rely exclusively on what the patient reports.
Furthermore, M.G. testified extensively at trial and the jury had the opportunity to assess
his credibility themselves. Unlike, Florczak, the State’s witnesses, testifying as M.G.’s treatment
providers, did not offer an improper opinion on M.G.’s veracity or Fugle’s guilt because it was
clear from their testimony that they merely accepted M.G.’s statements as true without making an
independent assessment.
Fugle points to specific testimony that referenced the reported abuse allegations or the
treatment providers’ testimony that stated Fugle’s reports were consistent with the diagnosis. For
example, Fugle points to Dr. Tauben’s diagnosis of PTSD secondary to sexual abuse. Fugle also
notes that Dr. Poole testified that she saw M.G. for the purpose of treating the symptoms “‘he was
having after having been sexually abused by his stepfather Joe.’” Br. of Petitioner at 46 (emphasis
omitted) (quoting VI VRP at 551). Although taken out of context, this testimony may appear to
be improper, the context of the treatment providers’ testimony does not establish that the testimony
was an improper opinion on Fugle’s guilt or M.G.’s credibility.
Under the law, the focus of the analysis is whether the testimony implies that the witness
has formed an opinion on the witness’s veracity or the defendant’s guilt. Context is important for
considering whether testimony is an improper opinion, and we consider “‘(1) the type of witness
involved, (2) the specific nature of the testimony, (3) the nature of the charges, (4) the type of
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defense, and (5) the other evidence before the trier of fact.’” Kirkman, 159 Wn.2d at 928 (internal
quotation marks omitted) (quoting State v. Demery, 144 Wn.2d at 759). Here, these factors
demonstrate that the treatment providers did not offer an impermissible opinion on guilt.
As to the first factor, the treatment providers testified as treatment providers. Unlike police
officers or forensic evaluators, their role as treatment providers does not imply that their job is to
make a determination regarding the truth of the allegations or the defendant’s guilt. For example,
if a police offer makes an arrest based on the victim’s statement, it necessarily implies that the
police officer has determined that the victim is telling the truth or that the defendant is guilty. In
contrast, treatment providers are providing treatment and their diagnosis does not carry any
additional significance regarding the truth of the allegations or the defendant’s guilt.
As to the second factor, the nature of the testimony weighs in favor of determining that the
testimony was not improper. As noted above, the treatment providers specifically testified that
they simply accepted M.G.’s statements as true. Therefore, the testimony does not contain an
implied opinion regarding M.G.’s truth because the treatment providers merely accepted M.G.’s
statements as true and did not form any opinion regarding M.G.’s veracity. See id at 930-31
(Detective’s testimony that he tested the witness’s competence and truthfulness prior to taking her
statement was not improper testimony because it was simply an account of interview protocol.).
The third and fourth factors likely do not weigh in favor of determining that there was
improper opinion testimony. Here, the charges were based on the allegations that formed the basis
of the treatment providers’ diagnosis and treatment plan. And Fugle’s defense was a general
denial, based, in part, on attacking M.G.’s credibility. However, although the treatment providers
testified that M.G.’s allegations were consistent with the diagnosis of PTSD, they also testified
16 No. 54108-4-II
that any trauma could create the symptoms of PTSD that M.G. reported. Therefore, the treatment
providers’ testimony did not necessarily imply that M.G.’s account was credible.
The fifth factor weighs in favor of determining that there was no improper opinion
testimony. M.G. testified in detail regarding the allegations of abuse, and therefore, the jury had
an opportunity to make their own determination regarding his credibility. And, as part of his
defense, Fugle presented expert testimony that questioned the reliability of M.G.’s memories and
alleged memory condition. See id at 931 (Despite a witness’s opinion regarding another witness’s
veracity, juries are still required to determine the credibility and truthfulness of each witness.).
Given the context of the treatment providers’ testimony and the factors considered when
determining whether there was improper opinion testimony, we conclude that the treatment
providers in this case did not offer improper opinion testimony. Because there was no improper
opinion testimony, Fugle has not met his burden to show a constitutional error resulting in actual
and substantial prejudice. Accordingly, we deny Fugle’s PRP based on the admission of improper
opinion testimony.
D. EXPERT OPINIONS ADMITTED WITHOUT A FRYE HEARING
Fugle argues that the evidence introduced is not generally accepted in the scientific
community and therefore was inadmissible expert testimony under Frye. Specifically, Fugle
challenges the evidence that claimed “symptoms of PTSD can be reverse-engineered to establish
a specific prior cause” and promoted the “notion of ‘repressed-recovered memory.’” Br. of
Petitioner at 5.
Fugle attempts to frame the admission of scientific evidence without a Frye hearing as a
constitutional error related to his right to due process. Although Fugle asserts that scientific
17 No. 54108-4-II
evidence admitted without a Frye hearing violates his “due process right not to have to defend
against unreliable evidence,” no authority establishing that such a constitutional right exists. Br.
of Petitioner at 71.8 Washington courts have regularly held that admission of scientific evidence
without a Frye hearing does not involve a constitutional issue. See State v. Newbern, 95 Wn. App.
277, 288, 975 P.2d 1041, review denied, 138 Wn.2d 1018 (1999); Florczak, 76 Wn. App. at 72;
State v. Jones, 71 Wn. App. 798, 820-21, 863 P.2d 85 (1993), review denied, 124 Wn.2d 1018
(1994). Therefore, Fugle’s assertion that the State’s witnesses offered scientific evidence that was
inadmissible under Frye alleges a nonconstitutional error. Accordingly, Fugle must show that the
admission of the scientific evidence at issue was a fundamental defect resulting in a complete
miscarriage of justice. Finstad, 177 Wn.2d at 506.
Washington courts evaluate expert testimony under the Frye test. In re Pers. Restraint of
Morris, 189 Wn. App. 484, 492, 355 P.3d 355 (2015). “‘The Frye standard requires a trial court
to determine whether a scientific theory or principle has achieved general acceptance in the
relevant scientific community before admitting it into evidence.’” Id. (internal quotation marks
omitted) (quoting In re Det. of Thorell, 149 Wn.2d 724, 754, 72 P.3d 708 (2003), cert. denied, 541
U.S. 990 (2004)). “‘[T]he core concern . . . is only whether the evidence being offered is based on
8 Fugle cites Manson v. Brathwaite, 432 U.S. 98, 113-14, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977), to assert that the “admission of unreliable evidence violates the Fourteenth Amendment’s Due Process Clause.” Br. of Pet. at 61 n.32. However, Manson, discusses reliability as a factor in determining the admissibility of identifications that may have resulted from inherently suggestive procedures. 432 U.S. at 113-14. Manson only establishes that admission of identifications that result from inherently suggestive procedures is improper and unconstitutional. Id. It does not relate to the admissibility of scientific evidence under Frye, it does not establish a due process right not to defend against unreliable evidence, and it does not extend past the admissibility of identifications.
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established scientific methodology.’” Id. at 492-93 (alterations in original) (internal quotation
marks omitted) (quoting In re Det. of Thorell, 149 Wn.2d at 754).
However, Frye applies to the admissibility of evidence based on novel scientific theories,
principles, or procedures. In re Detention of Young, 122 Wn.2d 1, 56, 857 P.2d 989 (1993),
superseded by statute on other grounds as stated in Thorell, 149 Wn.2d at 746. In Young, our
Supreme Court determined that the “sciences of psychology and psychiatry are not novel” and,
therefore, Frye does not prevent admission of evidence regarding psychological diagnoses and
predictions of future dangerousness even when those diagnoses or predictions are uncertain or
debated by other experts in the field. Id. at 56-57.
The same reasoning applies here. Dr. Tauben, Dr. Poole, and Dr. Daniel did not testify as
experts in the field of memory, or even as experts in forensic assessment and diagnosis. They
testified only in their role as treatment providers in their respective fields. To the extent they
offered testimony regarding memories, it was clear that testimony was based on their experience
and role as treatment providers and clinicians, not based on their opinion as experts in the field of
memory. Therefore, their testimony was not subject to Frye because it was not based on novel
scientific theories, principles, or procedures; rather, their testimony was based on well-established
principles of psychology used to treat a patient.
Fugle also claims that the State’s witnesses testified that symptoms of PTSD could be
“reverse-engineered” to prove that a particular trauma occurred. Br. of Petitioner at 5. However,
a review of the testimony in this case shows that no such statement was made to the jury. All the
State’s witnesses admitted the PTSD symptoms can result from any type of traumatic event. And
in their experience treating M.G., their diagnosis of PTSD was informed by his disclosure of an
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event—sexual abuse—that would result in the symptoms he complained of. None of the
challenged witnesses testified that any of M.G.’s symptoms were exclusively caused by sexual
abuse or that the presence of PTSD proved that the sexual abuse occurred. Instead, the challenged
witnesses all recognized that symptoms of PTSD could be caused by any type of trauma.
Therefore, this claim is not supported by the testimony at trial.
Because none of the testimony Fugle complains of was novel and subject to Frye, Fugle
has failed to show the absence of a Frye hearing was a fundamental defect resulting in a complete
miscarriage of justice. Accordingly, Fugle’s challenge based on the failure to hold a Frye hearing
fails.
E. INEFFECTIVE ASSISTANCE OF COUNSEL
Finally, Fugle asserts that he received ineffective assistance of counsel because counsel (1)
failed to object to the improper opinion testimony or alternatively, failed to adequately raise the
issue on direct appeal, (2) failed to move to exclude improper scientific evidence under Frye, (3)
failed to investigate the relevant scientific evidence, and (4) failed to call Fugle’s mother and
neighbors as defense witnesses. Because Fugle has not presented any competent, admissible
evidence that establishes the reasons for trial counsel’s decisions, Fugle has failed to meet his
burden to show deficient performance.
To prevail on an ineffective assistance of counsel claim, the defendant must show both that
defense counsel’s representation was deficient and the deficient performance resulted in prejudice
to the defendant. State v. Grier, 171 Wn.2d 17, 32-33, 246 P.3d 1260 (2011), cert. denied, 574
U.S. 860 (2014). A petitioner who presents a successful ineffective assistance of counsel claim
necessarily establishes actual and substantial prejudice for purposes of collateral relief in a
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personal restraint petition. In re Pers. Restraint of Crace, 174 Wn.2d 835, 846-47, 280 P.3d 1102
(2012).
Counsel’s performance is deficient if it falls below an objective standard of reasonableness.
Grier, 171 Wn.2d at 33. We engage in a strong presumption that counsel’s performance was
reasonable. State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009). A defendant may overcome
this presumption by showing that “‘there is no conceivable legitimate tactic explaining counsel’s
performance.’” Grier, 171 Wn.2d at 33 (quoting State v. Reichenbach, 153 Wn.2d 126, 130, 101
P.3d 80 (2004)). There must be evidence on counsel’s strategic or tactical decisions in order for
this court to determine whether counsel’s performance was deficient. State v. Linville, 191 Wn.2d
513, 525-26, 423 P.3d 842 (2018). To establish prejudice, the defendant must “prove that there is
a reasonable probability that, but for counsel’s deficient performance, the outcome of the
proceedings would have been different.” Kyllo, 166 Wn.2d at 862.
1. Failure to Object to Improper Opinion Testimony
Fugle argues that he received ineffective assistance of counsel because trial counsel failed
to object to the allegedly improper opinion testimony. The decision regarding whether and when
to object to trial testimony is a “classic example[] of trial tactics.” State v. Crow, 8 Wn. App. 2d
480, 508, 438 P.3d 541, review denied, 193 Wn.2d 1038 (2019). Therefore, the reason not to
object, as well as the fact that those reasons are neither strategic nor legitimate, must be supported
by evidence. Linville, 191 Wn.2d at 525-26.
Here, as discussed above, the State’s witnesses did not offer any improper opinion
testimony. Therefore, there was no improper opinion testimony that would have warranted an
21 No. 54108-4-II
objection and trial counsel’s performance was not deficient. Accordingly, Fugle’s ineffective
assistance of counsel claim based on the failure to object to improper opinion testimony fails.9
Fugle also argues that he received ineffective assistance of appellate counsel because his
counsel for his direct appeal failed to raise the issue regarding improper opinion testimony on
direct appeal. A petitioner claiming he received ineffective assistance of appellate counsel 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, 777-78, 100 P.3d 279 (2004). Because we hold that the State’s witnesses did not offer
improper opinion testimony, then Fugle has failed to show that the issue had merit. Therefore,
Fugle has failed to meet his burden to show ineffective assistance of appellate counsel.
2. Failure to Move to Exclude Improper Scientific Evidence
Fugle claims that trial counsel was ineffective because he failed to request a Frye hearing
regarding the testimonies of Dr. Tauben, Dr, Poole, and Dr. Daniel. As noted above, the
challenged testimony was not subject to Frye, and therefore, there was no basis for requesting a
Frye hearing. Accordingly, trial counsel’s performance was not deficient for failing to request a
Frye hearing.
9 Even if we assume the State’s witnesses did offer improper opinion testimony, then the reasons for trial counsel’s failure to object have not been properly established with competent, admissible evidence. Rice, 118 Wn.2d at 886. Here, Fugle presents only an affidavit from one of his attorneys working on his PRP to establish an understanding of why trial counsel did not object. This declaration is not competent, admissible evidence of trial counsel’s reasons for failing to object. Rice, 118 Wn.2d at 886. Instead, Fugle is required to submit an affidavit from trial counsel to establish the reasons for the failure to object. Id. Because of Fugle’s failure to do so, there is no evidence that allows us to evaluate whether the reasons for the failure to object are strategic or legitimate. Linville, 191 Wn.2d at 525-26.
22 No. 54108-4-II
Furthermore, there is no competent, admissible evidence that explains trial counsel’s
reasons for failing to request a Frye hearing. Therefore, there is no evidence that allows us to
evaluate whether the reasons for the failure to object are strategic or legitimate. Linville, 191
Wn.2d at 525-26. Accordingly, Fugle has failed to meet his burden to show trial counsel’s
performance was deficient for failure to request a Frye hearing.
3. Failure to Investigate Scientific Evidence
Fugle claims that his trial counsel was ineffective for failing to properly investigate the
scientific evidence in this case. An attorney breaches his duty to his client when he fails “‘to make
reasonable investigations or to make a reasonable decision that makes particular investigations
unnecessary.’” In re Pers. Restraint of Davis, 152 Wn.2d 647, 721, 101 P.3d 1 (2004) (quoting
Strickland v. Washington, 466 U.S. 668, 690-91, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).
“Defense counsel must, ‘at a minimum, conduct a reasonable investigation enabling [counsel] to
make informed decisions about how best to represent [the] client.’” Davis, 152 Wn.2d at 721
(alterations in original) (quoting In re Pers. Restraint of Brett, 142 Wn.2d 868, 873, 16 P.3d 601
(2001)). “This includes investigating all reasonable lines of defense.” Davis, 152 Wn.2d at 721
Here, as noted above, there is no competent, admissible evidence establishing what
investigation trial counsel actually performed and the reasons why trial counsel chose to pursue
the defense he did. Linville, 191 Wn.2d at 525-26; Rice, 118 Wn.2d at 886. Therefore, Fugle has
failed to meet his burden to show that his trial counsel’s performance was deficient for failing to
investigate the scientific evidence in this case.
23 No. 54108-4-II
4. Failure to Call Witnesses
Fugle asserts that he received ineffective assistance of counsel because trial counsel failed
to call his family and neighbors as witnesses. In general, the decision whether to call a particular
witness at trial is subject to differences of opinion, and therefore, we presume that such a decision
is a matter of legitimate trial tactics. In re Pers. Restraint of Lui, 188 Wn.2d 525, 545, 397 P.3d
90 (2017).
As discussed above, there is no competent, admissible evidence that establishes trial
counsel’s reasons for deciding not to call Fugle’s family and neighbors as witnesses. Rice, 118
Wn.2d at 886. Therefore, there is no evidence from which we can determine the reasons for trial
counsel’s decision and whether those reasons are strategic or legitimate. Linville, 191 Wn.2d at
525-26. Moreover, even if we accepted Fugle’s PRP counsel’s declaration as competent,
admissible evidence, it clearly states that the reasons for not calling these witnesses was a strategic
decision. Therefore, Fugle’s ineffective assistance of counsel claim fails.
Fugle has not shown either a constitutional error resulting in actual and substantial
prejudice or a fundamental defect of a nonconsitutional nature that inherently resulted in a
complete miscarriage of justice. Therefore, we deny his PRP.
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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.
Lee, C.J. We concur:
Glasgow, J.
Cruser, J.