FILED MARCH 7, 2024 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) ) No. 39057-8-III Respondent, ) ) v. ) ) NICHOLAS EDWARD MILLER, ) UNPUBLISHED OPINION ) Appellant. )
STAAB, J. — Nicholas Miller appeals from his convictions and sentence for two
counts of first degree rape of a child, one count of first degree child molestation, one
count of second degree rape of a child, and one count of second degree child molestation.
He argues: (1) defense counsel was ineffective for failing to object to the admission of
prior statements from KO, the victim, under the “fact-of-complaint” rule because the
statements were not made close in time to the alleged abuse, and (2) the sentencing court
did not apply the proper standard when it imposed conditions of community custody that
violated his fundamental right to parent.
We conclude that Miller’s counsel was not ineffective but remand for
reconsideration of the community custody condition related to contact with his own
children. No. 39057-8-III State v. Miller
BACKGROUND
In 2014, Niki Osborn and Nicholas Miller began dating. Shortly thereafter, Miller
moved in with Osborn and started watching her kids while she was at work. In 2015,
Miller started sexually abusing KO, Osborn’s daughter. The abuse continued for several
years and occurred two to five days a week.
Miller and Osborn broke up in 2018, and Miller moved out. After they broke up,
beginning in May 2019, Miller would come over and stay at Osborn’s house. KO
testified that the last abusive act occurred at the house where Miller was staying in the
summer of 2019.1
In December 2019, Osborn experienced a stroke, and KO moved in with her father
full time. Some time later, when Osborn was released from the hospital, Miller again
moved in with her and KO, and Osborn and Miller got engaged. Following their
engagement, KO revealed Miller’s sexual abuse to her aunt, and police became involved.
The State charged Miller with two counts of first degree rape of a child, one count
of first degree child molestation, one count of second degree rape of a child, and one
count of second degree child molestation. The charging period for the second degree
1 KO testified that this act occurred when Miller was living with his friend and KO and her family were living in the “first Thayer house” and the abuse occurred during the summer because she remembered wearing shorts. KO’s mother testified that they lived in the first Thayer house in 2019.
2 No. 39057-8-III State v. Miller
rape of a child and second degree child molestation charges ranged from December 2018
to February 2020.
Prior to trial, the State moved in limine to admit prior statements KO had made
when reporting the sexual assault to her stepsister and friend, TG and MG respectively,
under the fact-of-complaint rule. The State also noted that KO’s statements to TG and
MG would be admissible as prior consistent statements if Miller alleged KO was lying.
Defense counsel did not object to these motions, and the trial court granted them.
The case proceeded to a jury trial. During opening statements, defense counsel
argued that KO had a motive to lie about Miller abusing her because she did not get along
with her mom and did not like Miller because he was the “enforcer.” Rep. of Proc. (RP)
at 337-39. Defense counsel claimed that the rape accusations against Miller were KO’s
“easy way out.” RP at 338.
TG, KO’s stepsister, testified. She said that KO had twice shared “something
about sexual abuse” with her. RP at 641. The first time was during the summer of 2019
and the second time was in January 2020. The first time KO talked to TG, she followed
it up by saying that she was joking.
MG, a friend of KO, also testified. She explained that, in the summer of 2019, KO
had told her that somebody had been sexually assaulting her repeatedly and had asked
MG not to tell anyone. But KO subsequently told MG that “it was a game.” RP at 769.
3 No. 39057-8-III State v. Miller
KO testified that she wrote a list of reasons why she did not want to live with her
mother anymore and showed it to her aunt in February 2020. Later that same day, she
told her aunt that Miller had been assaulting her.
The State also elicited testimony from KO that she had written an outline of why
she reported the assaults and what had happened in a journal prior to a forensic interview
to “keep[] [her] thoughts straight.” RP at 751-52. Defense counsel cross-examined KO
about the specific contents of the journal including whether she had made entries about
sexual abuse that had occurred while she was in third, fourth, or fifth grade. On redirect,
without objection from defense counsel, the State then admitted pages from the journal as
an exhibit.
The jury found Miller guilty on all charges.
At sentencing, although the crime-related prohibitions were not specifically
addressed by either the State or defense counsel, the court imposed conditions of
community custody that restricted Miller from having direct or indirect conduct with
minors under the age of 16 and preventing him from holding any position of authority or
trust involving minors under the age of 16. Miller did not object to either of these
conditions.
Miller appeals.
4 No. 39057-8-III State v. Miller
ANALYSIS
1. INEFFECTIVE ASSISTANCE OF COUNSEL
Miller argues that defense counsel was ineffective for failing to object to prior
statements by KO under the fact-of-complaint rule. He contends that an objection would
have been sustained because the prior statements were inadmissible. We disagree.
Criminal defendants have a constitutionally guaranteed right to effective
assistance of counsel. U.S. CONST. amend. VI; WASH. CONST. art. I, § 22; State v. Lopez,
190 Wn.2d 104, 115, 410 P.3d 1117 (2018). A claim of ineffective assistance of counsel
is an issue of constitutional magnitude that may be considered for the first time on appeal.
State v. Nichols, 161 Wn.2d 1, 9, 162 P.3d 1122 (2007). Claims of ineffective assistance
of counsel are reviewed de novo. State v. White, 80 Wn. App. 406, 410, 907 P.2d 310
(1995).
A defendant bears the burden of showing (1) that his counsel’s performance “fell
below an objective standard of reasonableness based on consideration of all the
circumstances;” and, if so, (2) that “there is a reasonable probability that, except for
counsel’s [poor performance], the result of the proceeding would have been different.”
State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). “If either element . .
. is not satisfied, the inquiry ends.” State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177
(2009).
5 No. 39057-8-III State v. Miller
In reviewing the record for deficiencies, there is a strong presumption that
counsel’s performance was reasonable. McFarland, 127 Wn.2d at 335. “The burden is
Free access — add to your briefcase to read the full text and ask questions with AI
FILED MARCH 7, 2024 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) ) No. 39057-8-III Respondent, ) ) v. ) ) NICHOLAS EDWARD MILLER, ) UNPUBLISHED OPINION ) Appellant. )
STAAB, J. — Nicholas Miller appeals from his convictions and sentence for two
counts of first degree rape of a child, one count of first degree child molestation, one
count of second degree rape of a child, and one count of second degree child molestation.
He argues: (1) defense counsel was ineffective for failing to object to the admission of
prior statements from KO, the victim, under the “fact-of-complaint” rule because the
statements were not made close in time to the alleged abuse, and (2) the sentencing court
did not apply the proper standard when it imposed conditions of community custody that
violated his fundamental right to parent.
We conclude that Miller’s counsel was not ineffective but remand for
reconsideration of the community custody condition related to contact with his own
children. No. 39057-8-III State v. Miller
BACKGROUND
In 2014, Niki Osborn and Nicholas Miller began dating. Shortly thereafter, Miller
moved in with Osborn and started watching her kids while she was at work. In 2015,
Miller started sexually abusing KO, Osborn’s daughter. The abuse continued for several
years and occurred two to five days a week.
Miller and Osborn broke up in 2018, and Miller moved out. After they broke up,
beginning in May 2019, Miller would come over and stay at Osborn’s house. KO
testified that the last abusive act occurred at the house where Miller was staying in the
summer of 2019.1
In December 2019, Osborn experienced a stroke, and KO moved in with her father
full time. Some time later, when Osborn was released from the hospital, Miller again
moved in with her and KO, and Osborn and Miller got engaged. Following their
engagement, KO revealed Miller’s sexual abuse to her aunt, and police became involved.
The State charged Miller with two counts of first degree rape of a child, one count
of first degree child molestation, one count of second degree rape of a child, and one
count of second degree child molestation. The charging period for the second degree
1 KO testified that this act occurred when Miller was living with his friend and KO and her family were living in the “first Thayer house” and the abuse occurred during the summer because she remembered wearing shorts. KO’s mother testified that they lived in the first Thayer house in 2019.
2 No. 39057-8-III State v. Miller
rape of a child and second degree child molestation charges ranged from December 2018
to February 2020.
Prior to trial, the State moved in limine to admit prior statements KO had made
when reporting the sexual assault to her stepsister and friend, TG and MG respectively,
under the fact-of-complaint rule. The State also noted that KO’s statements to TG and
MG would be admissible as prior consistent statements if Miller alleged KO was lying.
Defense counsel did not object to these motions, and the trial court granted them.
The case proceeded to a jury trial. During opening statements, defense counsel
argued that KO had a motive to lie about Miller abusing her because she did not get along
with her mom and did not like Miller because he was the “enforcer.” Rep. of Proc. (RP)
at 337-39. Defense counsel claimed that the rape accusations against Miller were KO’s
“easy way out.” RP at 338.
TG, KO’s stepsister, testified. She said that KO had twice shared “something
about sexual abuse” with her. RP at 641. The first time was during the summer of 2019
and the second time was in January 2020. The first time KO talked to TG, she followed
it up by saying that she was joking.
MG, a friend of KO, also testified. She explained that, in the summer of 2019, KO
had told her that somebody had been sexually assaulting her repeatedly and had asked
MG not to tell anyone. But KO subsequently told MG that “it was a game.” RP at 769.
3 No. 39057-8-III State v. Miller
KO testified that she wrote a list of reasons why she did not want to live with her
mother anymore and showed it to her aunt in February 2020. Later that same day, she
told her aunt that Miller had been assaulting her.
The State also elicited testimony from KO that she had written an outline of why
she reported the assaults and what had happened in a journal prior to a forensic interview
to “keep[] [her] thoughts straight.” RP at 751-52. Defense counsel cross-examined KO
about the specific contents of the journal including whether she had made entries about
sexual abuse that had occurred while she was in third, fourth, or fifth grade. On redirect,
without objection from defense counsel, the State then admitted pages from the journal as
an exhibit.
The jury found Miller guilty on all charges.
At sentencing, although the crime-related prohibitions were not specifically
addressed by either the State or defense counsel, the court imposed conditions of
community custody that restricted Miller from having direct or indirect conduct with
minors under the age of 16 and preventing him from holding any position of authority or
trust involving minors under the age of 16. Miller did not object to either of these
conditions.
Miller appeals.
4 No. 39057-8-III State v. Miller
ANALYSIS
1. INEFFECTIVE ASSISTANCE OF COUNSEL
Miller argues that defense counsel was ineffective for failing to object to prior
statements by KO under the fact-of-complaint rule. He contends that an objection would
have been sustained because the prior statements were inadmissible. We disagree.
Criminal defendants have a constitutionally guaranteed right to effective
assistance of counsel. U.S. CONST. amend. VI; WASH. CONST. art. I, § 22; State v. Lopez,
190 Wn.2d 104, 115, 410 P.3d 1117 (2018). A claim of ineffective assistance of counsel
is an issue of constitutional magnitude that may be considered for the first time on appeal.
State v. Nichols, 161 Wn.2d 1, 9, 162 P.3d 1122 (2007). Claims of ineffective assistance
of counsel are reviewed de novo. State v. White, 80 Wn. App. 406, 410, 907 P.2d 310
(1995).
A defendant bears the burden of showing (1) that his counsel’s performance “fell
below an objective standard of reasonableness based on consideration of all the
circumstances;” and, if so, (2) that “there is a reasonable probability that, except for
counsel’s [poor performance], the result of the proceeding would have been different.”
State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). “If either element . .
. is not satisfied, the inquiry ends.” State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177
(2009).
5 No. 39057-8-III State v. Miller
In reviewing the record for deficiencies, there is a strong presumption that
counsel’s performance was reasonable. McFarland, 127 Wn.2d at 335. “The burden is
on a defendant alleging ineffective assistance of counsel to show deficient
representation.” McFarland, 127 Wn.2d at 335. “The reasonableness of counsel’s
performance is to be evaluated from counsel’s perspective at the time of the alleged error
and in light of all the circumstances.” Kimmelman v. Morrison, 477 U.S. 365, 384, 106
S. Ct. 2574, 91 L. Ed. 2d 305 (1986).
“When counsel’s conduct can be characterized as legitimate trial strategy or
tactics, performance is not deficient.” Kyllo, 166 Wn.2d at 863. Whether to object or not
is a “classic example of trial tactics.” State v. Madison, 53 Wn. App. 754, 763, 770 P.2d
662 (1989). In the context of objections, courts presume “that the failure to object was
the product of legitimate trial strategy.” State v. Johnston, 143 Wn. App. 1, 20, 177 P.3d
1127 (2007).
Moreover, in order to show deficient performance on a claim of ineffective
assistance of “counsel [based] on . . . failure to object, then “‘the defendant must show
that the objection would likely have succeeded.’” State v. Vazquez, 198 Wn.2d 239, 248,
494 P.3d 424 (2021) (quoting State v. Crow, 8 Wn. App. 2d 480, 508, 438 P.3d 541
(2019)). “‘Only in egregious circumstances, on testimony central to the State’s case, will
the failure to object constitute incompetence of counsel justifying reversal.’” Id.
(quoting Crow, 8 Wn. App. 2d at 508).
6 No. 39057-8-III State v. Miller
Miller argues that his defense counsel was ineffective for failing to object to the
admission of prior statements made by KO to MG and TG under the fact-of-complaint
doctrine.2
“The fact-of-complaint or ‘hue and cry’ doctrine is a case law exception to the
hearsay rule allowing the State to introduce evidence in its case in chief that a rape victim
has made a timely complaint.” State v. DeBolt, 61 Wn. App. 58, 63, 808 P.2d 794
(1991). “Details of the complaint and the identity of the offender are not permitted.” Id.
The testimony is only admissible to rebut an inference that a complaining witness was
silent after an attack and not admissible to prove the truth of the matter asserted. State v.
Martinez, 196 Wn.2d 605, 611, 476 P.3d 189 (2020).
To be admissible under the fact-of-complaint rule, the complaint must be timely
made. Id. at 614. “A complaint is timely if it is made when there is an ‘opportunity to
complain.’” Martinez, 196 Wn.2d at 614 (quoting State v. Griffin, 43 Wn. 591, 597, 86
P. 951 (1906)) (internal quotation marks omitted). “We leave it in the able hands of the
trial court to determine what constitutes a timely complaint based on the surrounding
2 Although he does not assign error to it, Miller also appears to argue that defense counsel was ineffective for failing to object to the admission of an excerpt from KO’s journal under the fact-of-complaint rule. However, the State did not request to admit the excerpt under the fact-of-complaint rule but rather it was admitted on the State’s redirect of KO after defense counsel opened the door to it by asking her specific questions about it on cross examination. Moreover, as this exhibit was not designated as part of the record on appeal, the contents of the journal are unknown. Accordingly, we decline to address this issue.
7 No. 39057-8-III State v. Miller
circumstances.” Id. at 614-15 (trial court did not abuse its discretion in finding
statements admissible under fact-of-complaint doctrine where child was living with
abuser and abuse was still ongoing, even though reports were made outside charging
period); State v. Ackerman, 90 Wn. App. 477, 480-82, 953 P.2d 816 (1998) (trial court
did not abuse its discretion in finding prior statement admissible under fact-of-complaint
where minor made statements reporting abuse both during and shortly after charging
period).
TG and MG both testified about complaints made by KO that did not identify the
offender or give details of the complaint. Still, Miller contends that the complaints were
inadmissible because the record fails to establish that KO’s complaints were timely made.
We reject this argument for several reasons.
First, Miller cannot overcome the lack of objection by arguing that the record is
undeveloped and did not support admission of the evidence. The purpose of an objection
is to correct an error, prevent it from reoccurring, and to prevent abuse of the appellate
process. State v. Emery, 174 Wn.2d 741, 761-62, 278 P.3d 653 (2012). Had Miller
objected to the evidence, the State may have supplemented the record with additional
facts to show the temporal relation between the complaint and the abuse.
In addition, Miller does not demonstrate that an objection would have been
sustained. TG and MG testified that KO disclosed a generalized complaint of sexual
abuse in the summer of 2019. KO testified that Miller’s last act of abuse occurred in the
8 No. 39057-8-III State v. Miller
summer of 2019. The trial court has discretion to decide if a complaint introduced under
this hearsay exception is timely. On this record, Miller cannot show that an objection
would have been sustained.
Next, as the State points out, KO’s statements were also admissible as prior
consistent statements under ER 801(d)(1)(ii). The rule provides that a statement is not
inadmissible as hearsay if it is “consistent with the declarant’s testimony and is offered to
rebut an express or implied charge against the declarant of recent fabrication or improper
influence or motive.” During opening statements, defense counsel attacked KO’s
credibility and argued she had a motive to lie, mainly that she did not want to continue
living with her mother, and that this motive was evidenced by the list she presented to her
aunt in February 2020. KO’s statements to both TG and MG were made prior to her
presenting the list to her aunt and prior to her bringing the abuse accusations to her aunt.
Further, though she said she was joking and referred to her statements as a game, they
were still consistent with the accusations she made in February 2020. Given defense
counsel’s attack on her credibility, these statements were admissible as prior consistent
statements.
Recognizing that the complaints to TG and MG would likely be admitted under
one or both hearsay exceptions, defense counsel’s failure to object may have been
strategic. Both TG and MG testified that KO admitted that her complaint was a joke or a
9 No. 39057-8-III State v. Miller
game. These comments by KO tend to discredit later complaints that the allegations are
true. Thus, it is possible that defense counsel wanted the jury to hear these comments.
In sum, Miller has failed to demonstrate his counsel was deficient for failing to
object to complaints made by KO to TG and MG. Because Miller fails to show deficient
performance, we need not address the issue of prejudice.
2. CONDITIONS OF COMMUNITY CUSTODY
Miller argues that the sentencing court abused its discretion in imposing
conditions of community custody that deprive him of relationships with his biological
children without considering the necessity of the conditions. We agree.
Pursuant to RCW 9.94A.505(9), a trial court may impose “crime-related
prohibitions” as a sentencing condition. In re Pers. Restraint of Rainey, 168 Wn.2d 367,
374, 229 P.3d 686 (2010). Generally, a trial court’s imposition of a sentencing condition
is reviewed for an abuse of discretion. State v. Torres, 198 Wn. App. 685, 689, 393 P.3d
894 (2017). However, “we more carefully review conditions that interfere with a
fundamental constitutional right, such as the fundamental right to the care, custody, and
companionship of one’s children.” Rainey, 168 Wn.2d at 374 (internal citation omitted).
“Sentencing conditions that interfere with a fundamental right must be sensitively
imposed so that they are ‘reasonably necessary to accomplish the essential needs of the
State and public order.’” Howard, 182 Wn. App. at 101 (quoting State v. Warren, 165
Wn.2d 17, 32, 195 P.3d 940 (2008)). A court can impose a condition on a criminal
10 No. 39057-8-III State v. Miller
defendant that restricts the fundamental right to parent as long as “the condition is
reasonably necessary to prevent harm to the child[ ].” State v. Ancira, 107 Wn. App. 650,
654, 27 P.3d 1246 (2001).
Whether “a sentencing condition affects a constitutional right is a legal question
subject to strict scrutiny.” Rainey, 168 Wn.2d at 374. However, given the fact-specific
nature of imposing crime-related prohibitions and the fact that they are largely based on
the sentencing court’s appraisal of the trial and defendant, abuse of discretion is still the
proper standard of review. Rainey, 168 Wn.2d at 374-75. “A court abuses its discretion
if, when imposing a crime-related prohibition, it applies the wrong legal standard.”
Rainey, 168 Wn.2d at 375.
Miller challenges the community custody condition precluding him from having
any direct or indirect contact with minors under the age of 16. The sentencing court did
not consider whether the condition was reasonably necessary to protect Miller’s children
from harm. The State concedes that this community custody condition is improper and
suggests it be amended to allow Miller to have supervised contact with children. We
accept the State’s concession in part, but we remand for the trial court to reconsider the
condition in light of the proper standard.
Miller also objects to the condition of community custody that precludes him from
“hold[ing] any position of authority or trust involving minors under the age of 16.”
Clerk’s Papers at 154. The State argues that such a condition is justified because it
11 No. 39057-8-III State v. Miller
allows Miller to parent his children but restricts him from assuming a position of
authority or trust over any minor. However, this argument ignores the fact that the
fundamental right to parent includes the right to care, custody, and companionship of
one’s children, which inherently creates a position of authority or trust. Consequently,
this condition restricts Miller’s fundamental right to parent. As the sentencing court did
not consider whether the condition was reasonably necessary to protect Miller’s children
from harm, we remand for the trial court to consider the condition in light of the correct
legal standard.
We affirm Miller’s conviction but remand for the trial court to reconsider the
community custody condition related to his own children under the proper standard.
Unpublished. A majority of the panel has determined this opinion will not be printed in
the Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
_________________________________ Staab, J.
WE CONCUR:
_________________________________ Fearing, C.J.
_________________________________ Pennell, J.