Filed Washington State Court of Appeals Division Two
October 13, 2015 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II In the Matter of the No. 44282-5-II Personal Restraint Petition of
STEVEN CRAIG CEARLEY,
UNPUBLISHED OPINION
Petitioner.
WORSWICK, J. — A jury found Steven Cearley guilty of five counts of first degree child
rape and one count of first degree child molestation, and further found the aggravating factor that
Cearley had used his position of trust to commit the offenses. The court imposed an exceptional
sentence based on both the position of trust sentencing aggravator and Cearley’s high offender
score. In this personal restraint petition, Cearley argues that (1) a victim advocate coached the
victim during her testimony; (2) sealed jury questionnaires and sidebar conferences violated his
right to a public trial; (3) sidebar conferences violated his right to be present; (4) the trial court
erred by failing to conduct a hearing when it learned that victim advocates spoke to jurors; (5)
two jurors slept during trial; (6) the trial court wrongly instructed the jury on the position of trust
aggravator; (7) the trial court imposed a mandatory minimum sentence based on Cearley’s high
offender score, which was not found by the jury; (8) Cearley received the ineffective assistance
of counsel for several reasons; and (9) the convictions should be overturned due to cumulative
error. Because Cearley fails to establish either constitutional error that resulted in actual and
substantial prejudice or nonconstitutional error that resulted in a complete miscarriage of justice,
we deny his petition. No. 44282-5-II
FACTS
ADM1 lived with her aunt and Cearley. Cearley molested and raped ADM several times
over a two-year period when ADM was approximately seven to nine years old.
ADM told some of her friends that she was experiencing sexual abuse. At first she did
not say who abused her, but she eventually disclosed that Cearley was the abuser. ADM’s
school principal, a Child Protective Services agent, and Kris Camenzind, a Crisis Support
Network employee, initiated an interview with ADM. At first, ADM denied that Cearley abused
her. But as the interview progressed, ADM disclosed that Cearley had sexually abused her and
had threatened her not to tell anyone.
During an ensuing search of Cearley’s residence, police found physical evidence that
Cearley sexually abused ADM, namely Cearley’s semen inside the crotch of ADM’s jeans. In
subsequent interviews, ADM continued to state that Cearley sexually abused her. She described
several instances of such abuse.
The State charged Cearley with six counts of first degree child rape2 and one count of
first degree child molestation.3 For each count of child rape, the State added the aggravating
factor that Cearley used a position of trust to accomplish the crime.4 The case proceeded to a
jury trial.
1 For purposes of confidentiality, we use the minor victim’s initials. 2 RCW 9A.44.073. 3 RCW 9A.44.083. 4 RCW 9.94A.535(3)(n).
2 No. 44282-5-II
The parties used a jury questionnaire as part of jury selection. The questionnaire was
labeled “confidential” and it specified that it would “be part of the sealed Court file and will not
be available for inspection publicly or privately” absent a court order to unseal it. Personal
Restraint Petition (PRP) (Appendix B). During trial, the trial court conducted multiple sidebar
conferences.
The trial court allowed several victim advocates to attend trial. The primary victim
advocate was Camenzind, the employee from the Crisis Support Network who had attended
ADM’s initial interview. The trial court allowed Camenzind to sit in the front row, but
admonished the prosecutor to warn Camenzind not to use facial gestures to influence ADM’s
testimony. Cearley alleges that, despite this admonition, ADM “kept her eyes right on
[Camenzind] the whole time” during her testimony, and that ADM appeared to react to the
victim advocate’s behavior “[a] couple of times.” PRP (Appendix C). He alleges that when
ADM hesitated, she “would look at Ms. Camenzind who would nod at her. When she nodded,
[ADM] would continue with her answer. When [Camenzind] looked away, [ADM] would stop
or change the direction of her answer.” PRP (Appendix C). Cearley does not say during which
portions of ADM’s testimony this behavior occurred.
Cearley also alleges that ADM held a toy in the court hallway “surrounded by her
advocates” during a break in her testimony. PRP (Appendix C). He alleges that many advocates
were “surrounding [ADM] and making her feel better outside of the courtroom.” PRP
(Appendix C). Cearley suggests that allowing ADM to hold a toy and talking to her during
breaks were “subtle methods of attempting to influence her testimony.” PRP at 10. He
speculates that Camenzind may have “spoke[n] to the witness during her break about her
3 No. 44282-5-II
testimony” or assured her that she “was doing ‘good’ or that [the victim advocates] were ‘proud’
of her.” PRP at 10.
Cearley also alleges that he saw two jurors talking with a victim advocate during a break
in the trial and that he photographed this improper contact on his phone. Without explaining
what he told the judge about this contact, Cearley alleges that the judge “got upset and told
[Cearley] to delete [the photo] during the break.” PRP (Appendix C). Cearley states that he
alerted trial counsel to the issue, but that trial counsel declined to act. Cearley’s trial counsel
recalls that “there was an issue at some point and Mr. Cearley was told to delete a photograph he
had taken outside of the court room.” PRP (Addendum to Appendix). He states that he does not
“recall being shown the photograph and [he has] a vague memory of this issue.” PRP
(Addendum to Appendix).
Cearley further claims that his trial counsel “kept his shoulder turned against” Cearley
during trial and would not speak to him in front of the jury. PRP (Appendix C). When Cearley
asked questions, his counsel was “very short with” him or “would not answer [his] questions.”
PRP (Appendix C). But Cearley acknowledges that “[d]uring breaks [his counsel] was nicer.”
PRP (Appendix C). Cearley asked his trial counsel about this behavior, and his trial counsel told
him “not to pay any attention to how he was acting because it was just ‘part of the plan.’” PRP
(Appendix C). Finally, Cearley alleges that two jurors slept on a regular basis through material
portions of trial. He identifies the two jurors generally by approximate age and gender, but he
does not state when or for how long these jurors slept.
The trial court instructed the jury on the abuse of trust aggravating factor for first degree
child rape. Jury instruction 28 read:
4 No. 44282-5-II
A defendant uses a position of trust to facilitate a crime when the defendant gains access to the victim of the offense because of the trust relationship. In determining whether there was a position of trust, you should consider the length of the relationship between the defendant and the victim, the nature of the defendant’s relationship to the victim, and the vulnerability of the victim because of age or other circumstance. There need not be a personal relationship of trust between the defendant and the victim. It is sufficient if a relationship of trust existed between the defendant and someone who entrusted the victim to the defendant’s care.
PRP at 40.
The jury found Cearley guilty of five counts of child rape and one count of child
molestation. The jury also found Cearley used a position of trust to facilitate the child rape
convictions. Accordingly, the trial court sentenced Cearley to exceptional sentences, based both
on the position of trust aggravator and on Cearley’s high offender score. In imposing the
exceptional sentence, the trial court entered findings of fact and conclusions of law stating that
an exceptional sentence was justified based both on the high offender score under RCW
9.94A.535(2)(c), and on the position of trust aggravating factor found by the jury. The trial court
also stated that both of these grounds, “taken together or considered individually, constitute
sufficient cause to impose the exceptional sentence. This court would impose the same sentence
if only one of the grounds . . . is valid.” PRP (Appendix A).
Cearley appealed to this court, and we affirmed his convictions. This personal restraint
petition timely followed. In his petition, Cearley provides detailed psychological evaluations of
ADM, showing that she struggled with depression and other mental health issues around the time
of the abuse. He also provides academic literature on appropriate protocols for interviewing
children.
5 No. 44282-5-II
ANALYSIS
I. LEGAL PRINCIPLES
To be entitled to relief, a personal restraint petitioner must establish by a preponderance
of the evidence either constitutional error that resulted in actual and substantial prejudice or
nonconstitutional error that resulted in a complete miscarriage of justice. In re Pers. Restraint of
Woods, 154 Wn.2d 400, 409, 114 P.3d 607 (2005); In re Pers. Restraint of Borrero, 161 Wn.2d
532, 536, 167 P.3d 1106 (2007). The petitioner must support his claims of error with a statement
of facts on which his claim of unlawful restraint is based and the evidence available to support
his factual allegations; he cannot rely solely on conclusory allegations. RAP 16.7(a)(2)(i); In re
Pers. Restraint of Williams, 111 Wn.2d 353, 365, 759 P.2d 436 (1988); see also In re Pers.
Restraint of Cook, 114 Wn.2d 802, 813-14, 792 P.2d 506 (1990).
The petitioner may support his allegations with the trial court record, affidavits, or other
forms of corroboration. In re Pers. Restraint of Rice, 118 Wn.2d 876, 886, 828 P.2d 1086
(1992). These corroborating sources must show that admissible evidence will establish the
petitioner’s factual allegations. Rice, 118 Wn.2d at 886. It is insufficient for a petitioner to rely
on mere speculation, conjecture, or inadmissible hearsay. Rice, 118 Wn.2d at 886.
We deny a personal restraint petition if the petitioner fails to make a prima facie showing
of either actual and substantial prejudice or a fundamental defect. In re Pers. Restraint of Yates,
177 Wn.2d 1, 17-18, 296 P.3d 872 (2013). We remand for a reference hearing if the petitioner
makes such a showing, but the record is not sufficient to determine the merits. Yates, 177 Wn.2d
at 17-18. We, however, grant the petition if we are convinced that the petitioner has established
6 No. 44282-5-II
actual and substantial prejudice or a fundamental defect by a preponderance of the evidence.
Yates, 177 Wn.2d at 17-18.
II. WITNESS COACHING
Cearley argues that his right to a fair trial was violated when a victim advocate
“‘coached’” ADM during her testimony. PRP at 6. We disagree because Cearley does not
establish that this allegation, even if true, resulted in actual and substantial prejudice.
Violent and sex crime victims have the right to have a victim advocate present during any
interview by defense or prosecution. RCW 7.69.030(10). Child victims have a statutory right to
have an advocate present in court “while the child testifies in order to provide emotional support
to the child.” RCW 7.69A.030(8).
Cearley alleges that Camenzind subtly influenced ADM’s testimony “[a] couple of
times” through facial gestures. PRP (Appendix C). Cearley also speculates, without factual
support, that the victim advocate may have verbally or otherwise encouraged ADM in her
testimony during breaks in the trial.
Even accepting Cearley’s facts as true, his claim fails because he does not demonstrate
that Camenzind’s behavior deprived him of his right to a fair trial and caused him actual and
substantial prejudice. To prevail on the constitutional claim that Camenzind’s behavior violated
Cearley’s right to a fair trial, Cearley must make a prima facie showing of actual and substantial
prejudice resulting from the violation of this constitutional right. Yates, 177 Wn.2d at 17-18.
But Cearley does not say at what stage of ADM’s testimony any of the alleged gestures occurred,
nor does he say at what stage of trial he saw ADM talking with victim advocates during breaks in
her testimony. Thus, he cannot show any prejudice because he cannot show what questions or
7 No. 44282-5-II
answers may have been altered by coaching. In addition, physical evidence supported ADM’s
testimony. His claim fails.
III. PUBLIC TRIAL
Cearley argues that his right to a public trial was violated in two ways: through a sealed
juror questionnaire and through several sidebar conferences. We disagree, because Cearley
neither argues nor demonstrates that any court closure caused him actual and substantial
prejudice.
Defendants have a constitutional right to a public trial. WASH. CONST. art. I, § 22.
Unless a court first conducts a hearing under State v. Bone-Club, 128 Wn.2d 254, 258-59, 906
P.2d 325 (1995), a courtroom closure constitutes structural error and requires reversal on direct
appeal. State v. Paumier, 176 Wn.2d 29, 35, 288 P.3d 1126 (2012). But to prevail on a public
trial claim, a personal restraint petitioner must show actual and substantial prejudice resulting
from a violation of the public trial right. In re Pers. Restraint of Coggin, 182 Wn.2d 115, 122,
340 P.3d 810 (2014) (plurality opinion).
Even assuming that any courtroom closures occurred, Cearley neither argues nor
demonstrates that any such closure caused him actual and substantial prejudice. Instead, he
argues that these public trial violations are structural errors, requiring automatic reversal and a
new trial. But our Supreme Court rejected this argument in Coggin, 182 Wn.2d at 122 (plurality
opinion), and In re Pers. Restraint of Speight, 182 Wn.2d 103, 107, 340 P.3d 207 (2014)
(plurality opinion). Thus, even if the juror questionnaires or sidebars violated Cearley’s right to
a public trial, he does not make the requisite showing of prejudice to prevail in a personal
restraint petition. Coggin, 182 Wn.2d at 122 (plurality opinion). His claim fails.
8 No. 44282-5-II
IV. RIGHT TO BE PRESENT
Cearley argues that his right to be present was violated during various sidebars. We
disagree.
A defendant has a right to be present “‘at any stage of the criminal proceeding that is
critical to its outcome if his presence would contribute to the fairness of the procedure.’” State v.
Love, 183 Wn.2d 598, 608, 354 P.3d 841 (2015) (quoting Kentucky v. Stincer, 482 U.S. 730,
745, 107 S. Ct. 2658, 96 L. Ed. 2d 631 (1987)). Here, Cearley does not say at what stage of trial
the sidebars occurred. Thus, he does not show that any sidebars occurred when he had a right to
be present—in other words, “at any stage of the criminal proceeding that is critical to its
outcome.” Love, 183 Wn.2d at 608.
Because Cearley fails to establish that he had the right to be present at the sidebars, his
claim fails.
V. COMMUNICATION WITH JURORS
Cearley argues that the trial court erred by failing to conduct a hearing when it learned
that victim advocates spoke to jurors. We disagree. Assuming arguendo that the alleged
improper jury contact took place and that the trial court responded as Cearley alleges it did,
Cearley’s claim fails because he cannot show prejudice.
In a personal restraint petition, the petitioner must show by a preponderance of the
evidence that prejudice resulted from unauthorized jury communication. Woods, 154 Wn.2d at
414. Cearley misapprehends his burden, and urges us to provide him a hearing at which he will
have the opportunity to discover whether the juror communication prejudiced him. But Cearley
is entitled to a reference hearing only if he makes a prima facie showing in his petition of actual
9 No. 44282-5-II
and substantial prejudice resulting from a constitutional violation. Yates, 177 Wn.2d at 17-18.
He does not do so. And under Woods, he must show prejudice by a preponderance of the
evidence, which he fails to do. 154 Wn.2d at 414. He merely states that “[a] couple of the jurors
. . . talked with one of the advocates” outside the courtroom. PRP (Appendix C). He does not
say how long the contact lasted nor what was discussed. The advocate was not a witness. These
facts are insufficient to show that this contact prejudiced Cearley’s trial. Thus, he is entitled
neither to relief nor to an evidentiary hearing.
VI. SLEEPING JURORS
Cearley argues that his right to a fair trial was violated because two jurors slept through a
“significant portion of the trial.” PRP at 35. We disagree because Cearley fails to show actual
and substantial prejudice.
Cearley’s declaration alleges that two jurors slept during his trial: an “older white male in
his mid 50’s” who “sat in the back row in the right corner,” and “a white male in his mid 40’s”
who “was in the front left corner.” PRP (Appendix C). Cearley does not say during what parts
of trial these jurors slept, nor for how long.
Cearley argues that the two jurors’ sleeping deprived him of his Sixth Amendment right
to a trial by a fair and impartial jury. Cearley concedes that a single sleeping juror does not per
se deprive a defendant of a fair trial. PRP at 37 (citing United States v. Springfield, 829 F.2d 860
(9th Cir. 1987)). Assuming these facts are true, Cearley’s claim fails because he shows neither
actual and substantial prejudice nor a complete miscarriage of justice resulting from these jurors’
sleeping. His declaration does not establish what portions of trial the jurors missed, nor how
their sleeping prejudiced him. Thus, he fails to carry his burden.
10 No. 44282-5-II
VII. AGGRAVATING SENTENCING FACTORS
Cearley argues that the trial court erred by imposing an exceptional sentence. He
contends that the jury’s finding that he violated a position of trust is invalid because the jury
instruction was erroneous and that the trial court violated his federal and state rights to a jury
trial by imposing a mandatory minimum sentence based on facts not found by the jury—namely,
his high offender score. Because the trial court found that both of these grounds, “taken together
or considered individually,” constituted sufficient cause to impose the exceptional sentence, and
because the trial court stated that it would impose the same sentence if only one of the grounds
was valid, Cearley must demonstrate that both aggravating circumstances are invalid to obtain
relief from his exceptional sentence. We hold that the jury instruction was correct and that
Cearley was not entitled to a jury determination of his high offender score. Therefore, the trial
court did not err in sentencing Cearley.
A. Position of Trust Instruction
Cearley argues that the trial court incorrectly instructed the jury on the “position of trust”
aggravating factor. PRP at 39. He argues that the instruction was erroneous because it did not
require the jury to find a “nexus” between the position of trust and the crime, and because it
defined “position of trust” in an overly inclusive manner. PRP at 39. We disagree.
We review alleged errors of law in jury instructions de novo. State v. Barnes, 153 Wn.2d
378, 382, 103 P.3d 1219 (2005). Jury instructions are proper when they allow each party to
argue its theory of the case, they do not mislead the jury, and they inform the jury of the
applicable law. Barnes, 153 Wn.2d at 382; State v. McCreven, 170 Wn. App. 444, 461-62, 284
P.3d 793 (2012). A jury instruction “‘must make the relevant legal standard manifestly apparent
11 No. 44282-5-II
to the average juror.’” McCreven, 170 Wn. App. at 462 (internal quotation marks omitted)
(quoting State v. LeFaber, 128 Wn.2d 896, 900, 913 P.2d 369 (1996)). Even if a personal
restraint petitioner establishes that jury instructions were erroneous, he must also demonstrate
that the error caused actual and substantial prejudice. In re Pers. Restraint of Brockie, 178
Wn.2d 532, 539, 309 P.3d 498 (2013).
Here, the challenged instruction follows Washington Pattern Jury Instruction (WPIC)
300.23 verbatim.5 In relevant part, it provides: “A defendant uses a position of trust to facilitate
a crime when . . . .” PRP at 40 (emphasis added). Further, it instructs the jury that “[t]here need
not be a personal relationship of trust between the defendant and the victim. It is sufficient if a
relationship of trust existed between the defendant and someone who entrusted the victim to the
defendant’s care.” PRP at 40. The statute authorizing this aggravator is RCW 9.94A.535(3)(n),
which reads in its entirety: “The defendant used his or her position of trust, confidence, or
fiduciary responsibility to facilitate the commission of the current offense.” (Emphasis added).
Cearley does not show that the instructions failed to make the relevant legal standard
manifestly apparent to the average juror. McCreven, 170 Wn. App. at 462. First, the instruction
properly articulates the nexus between the position of trust and the crime. Both the instruction
and the statute contemplate that the defendant “use[]” a position of trust to facilitate a crime.
Compare PRP at 40, with RCW 9.94A.535(3)(n). Thus, the instruction makes the legal standard
apparent—that is, that the defendant must use the position of trust to facilitate the crime.
5 11A WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 300.23, at 728 (3d ed. 2008).
12 No. 44282-5-II
Second, Cearley fails to show that the relevant legal standard requires the prosecution to
prove that the defendant “personally be in a position of trust.” PRP at 41. Cearley cites no
authority for the proposition that the statute has such a requirement, and there is no such
requirement in the statute’s plain language. See RCW 9.94A.535(3)(n). Instead, the statute
merely requires the defendant to “use[] his or her position of trust . . . to facilitate” the crime.
RCW 9.94A.535(3)(n). The statute does not require the defendant to be in a position of trust
with the victim personally. Thus, this claim fails. Cearley fails to show that the challenged
instruction was improper, or that any errors in it actually and substantially prejudiced him.
Brockie, 178 Wn.2d at 539; McCreven, 170 Wn. App. at 461-62.
B. Offender Score
Cearley argues that the trial court violated his federal and state rights to a jury trial by
imposing a mandatory minimum sentence under RCW 9.94A.535(2)(c), which provides that a
judge, not a jury, determines whether a high offender score results in crimes going unpunished.
We disagree.
1. United States Constitution — Sixth Amendment
Cearley argues that the judicial imposition of an exceptional sentence based on his high
offender score violates his Sixth Amendment right to a jury trial. We disagree.
Our Supreme Court has already considered and rejected Cearley’s argument. State v.
Alvarado, 164 Wn.2d 556, 566-67, 192 P.3d 345 (2008). Here, as in Alvarado, the trial court
imposed an exceptional sentence under RCW 9.94A.535(2)(c).6 “[T]he only factors the trial
6 “The trial court may impose an aggravated exceptional sentence without a finding of fact by a jury [where t]he defendant has committed multiple current offenses and the defendant’s high
13 No. 44282-5-II
court relies upon in imposing an exceptional sentence under RCW 9.94A.535(2)(c) are based on
criminal history and the jury’s verdict on the current convictions[, which b]oth fall under the
Blakely[7] prior convictions exception, as no judicial fact finding is involved.” Alvarado, 164
Wn.2d at 566-67 (citation omitted). Thus, because the trial court did not find any facts when it
imposed an exceptional sentence based on Cearley’s high offender score, his claim fails.
2. Washington State Constitution — Article I, Section 22
Cearley also argues that, even if the judicial imposition of an exceptional sentence based
on a high offender score does not violate his federal constitutional rights, it violates his state
constitutional rights. But our Supreme Court has already rejected this argument. State v. Smith,
150 Wn.2d 135, 156, 75 P.3d 934 (2003). Our Supreme Court held that the right to a jury trial
under our State Constitution does not extend to proving the existence of a prior conviction.
Smith, 150 Wn.2d at 156. By the same logic, the right to a jury trial does not extend to proving
the existence of current convictions for purposes of imposing an exceptional sentence based on a
high offender score. Cearley’s claim fails.
VIII. INEFFECTIVE ASSISTANCE OF COUNSEL
Cearley raises multiple ineffective assistance of counsel arguments. For the reasons we
discuss below, we hold that he fails to present any meritorious claims of ineffective assistance of
counsel.
offender score results in some of the current offenses going unpunished.” RCW 9.94A.535(2), (2)(c). 7 Blakely v. Washington, 542 U.S. 296, 302, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
14 No. 44282-5-II
A. Standard of Review
To prevail on an ineffective assistance of counsel claim, Cearley must show that defense
counsel’s performance was deficient and that Cearley was prejudiced by the deficient
performance. In re Pers. Restraint of Crace, 174 Wn.2d 835, 840, 280 P.3d 1102 (2012) (citing
Strickland v. Washington, 466 U.S. 668, 700, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). A
petitioner demonstrates deficient performance by showing that defense counsel’s conduct fell
below an objective standard of reasonableness. Rice, 118 Wn.2d at 888. “In this regard, the
court must make every effort to eliminate the distorting effects of hindsight and must strongly
presume that counsel’s conduct constituted sound trial strategy.” Rice, 118 Wn.2d at 888-89. In
addition, to show deficient performance, the petitioner must show the absence of any
conceivable legitimate trial tactic explaining counsel’s performance. State v. Grier, 171 Wn.2d
17, 33, 246 P.3d 1260 (2011).
To demonstrate prejudice, Cearley must show a “‘reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the outcome.’”
Crace, 174 Wn.2d at 840 (quoting Strickland, 466 U.S. at 694). Prejudice does not require a
showing that counsel’s actions more likely than not altered the outcome, but the likelihood of a
different result must be substantial, not just conceivable. Harrington v. Richter, 562 U.S. 86,
112, 131 S. Ct. 770, 178 L. Ed. 2d 624 (2011). “[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” under the standard for personal restraint petitions. Crace, 174
Wn.2d at 846-47.
15 No. 44282-5-II
B. Public Trial
Cearley’s petition includes headings arguing that his trial counsel was ineffective because
he failed to advise Cearley of his right to a public trial and that his appellate counsel was
ineffective for failing to raise this claim on direct appeal. But Cearley does not support either of
these assertions with legal argument or citations to authority. Such passing treatment of an issue
does not merit judicial consideration. In re Pers. Restraint of Bratz, 101 Wn. App. 662, 668 n.3,
5 P.3d 759 (2000); see RAP 16.7(a)(2)(ii). Accordingly, we do not consider this issue.
C. Jury Communication
Cearley argues that his trial counsel was ineffective because he failed to request a hearing
after Cearley told him that victim advocates had spoken to jurors. But Cearley’s claim fails
because he does not argue or demonstrate how any arguably deficient performance caused him
prejudice. Instead, he argues that he would “establish[] the requisite level of prejudice at [an
evidentiary] hearing” upon remand. PRP at 26. Because Cearley does not meet his burden to
establish that any deficiency caused him prejudice, his claim fails. Strickland, 466 U.S. at 700.
D. Psychological Evaluation and Child Interview Expert
Cearley argues that his trial counsel was ineffective for failing to request a psychological
evaluation of ADM. Cearley also argues that his trial counsel was ineffective for failing to call
an expert on child interview techniques. We disagree.
1. Failure To Request Psychological Evaluation
Cearley fails to provide factual support for the deficiency prong because the record and
declarations do not show that Cearley’s trial counsel knew about ADM’s psychological
diagnoses. Cearley argues that “there was evidence” that ADM suffered from significant
16 No. 44282-5-II
depression, and that this evidence was “available to defense counsel.” PRP at 28. He provides
her treatment records in support of the assertion that she suffered from depression, but he
provides no factual support for the allegation that defense counsel was aware of or had any
reason to know of these diagnoses. Thus, he does not provide factual support for the deficiency
prong of his argument, and it fails. Strickland, 466 U.S. at 700.
2. Failure To Call Child Interview Expert
Cearley also argues that his trial counsel was ineffective for failing to call an expert on
child interview protocols. Again, we disagree.
Cearley does not provide factual support for the allegation that his trial counsel failed to
investigate the availability of such an expert. Moreover, Cearley does not provide any facts
about whether an expert on child interview protocols existed at the time of Cearley’s trial or
about the testimony any such expert could provide. Instead, he provides studies about child
interview protocols and argues that “[t]here is now a robust body of literature and a number of
experts who are available to testify” about the dangers of flawed child interviews. PRP at 29.
Thus, he cannot show any likelihood of a different result but for counsel’s failure to call an
expert; he can merely speculate that such an expert existed at the time of his trial and would have
testified favorably. Because Cearley provides no factual support, his claim fails.
E. Counsel’s Behavior
Cearley argues that his trial counsel was ineffective for being disrespectful, rude, and
cold to Cearley during trial. We disagree.
Cearley’s claim fails because he concedes that a trial tactic explains his counsel’s
behavior. Cearley acknowledges that his counsel was rude “only . . . in front of the jury,” and
17 No. 44282-5-II
“[d]uring breaks he was nicer.” PRP (Appendix C). Cearley recalls his trial counsel telling him
“not to pay any attention to how he was acting because it was just ‘part of the plan.’” PRP
(Appendix C). Thus, according to Cearley, his trial counsel behaved coldly to him during trial as
part of a trial strategy. It is conceivable this strategy was to pay close attention to the
proceedings and remain on guard for any necessary objections. Thus, Cearley cannot show
deficient performance. Grier, 171 Wn.2d at 33.
F. Failure To Notice Sleeping Juror and Move for Mistrial
Cearley argues that his trial counsel was ineffective for failing to notice that two jurors
were sleeping and failing to move for a mistrial on that ground. But, as discussed above, Cearley
fails to provide any argument how this deficiency prejudiced him. Therefore, his claim fails.
Strickland, 466 U.S. at 700.
G. Proposing Deficient Instruction
Cearley argues that his trial counsel was ineffective for proposing a deficient instruction
on the “position of trust” sentencing aggravator. PRP at 39. We disagree.
An attorney does not provide deficient performance by not challenging a WPIC when the
existing case law does not call the adequacy of the WPIC into question. See State v. Kyllo, 166
Wn.2d 856, 866-69, 215 P.3d 177 (2009); State v. Studd, 137 Wn.2d 533, 551, 973 P.2d 1049
(1999). As stated above, the “position of trust” instruction followed WPIC 300.23 verbatim.
Because Cearley cannot show that existing case law called the validity of WPIC 300.23 into
question, he cannot show that his counsel was deficient for proposing it or failing to challenge it.
Kyllo, 166 Wn.2d at 866-69; Studd, 137 Wn.2d at 551. Thus, his claim fails.
18 No. 44282-5-II
IX. CUMULATIVE ERROR
Finally, Cearley argues that he is entitled to a new trial due to cumulative error. We
The cumulative error doctrine is limited to instances where several trial errors, standing
alone, do not warrant reversal, but when combined deny the defendant a fair trial. State v.
Weber, 159 Wn.2d 252, 279, 149 P.3d 646 (2006). Here, even assuming for argument that
Camenzind made facial gestures during ADM’s testimony a couple of times, that jury
questionnaires were conducted privately, that a victim’s advocate had a conversation with a
juror, and that two jurors slept during portions of the trial, Cearley has not presented enough
facts to establish that he was not afforded a fair trial.
In summary, Cearley fails to establish any constitutional error resulting in actual and
substantial prejudice or any fundamental defect resulting in a total miscarriage of justice. Thus,
we deny his personal restraint petition.
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:
Johanson, C.J.
Melnick, J.