IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) No. 82890-8-I ) Respondent, ) DIVISION ONE ) v. ) UNPUBLISHED OPINION ) RANDALL HAROLD ROGERS, ) ) Appellant. ) )
HAZELRIGG, J. — Randall Rogers appeals the denial of his personal restraint
petition (PRP) following agreed remand to the trial court for an evidentiary hearing
and decision on the merits. The trial court ultimately concluded that Rogers failed
to meet his burden as to the various claims raised in his petition and dismissed it.
As he asserted in his underlying PRP, Rogers argues he was denied a fair trial, he
received ineffective assistance of counsel, and the prosecutor engaged in
misconduct, all broadly based on the presence of Bikers Against Child Abuse
members at trial during the child victim’s testimony. Finding no errors, we affirm.
FACTS
On March 13, 2017, Randall Rogers was charged with two counts of child
molestation in the first degree by amended information. The named victim was
E.R., Rogers’ granddaughter. A trial occurred later that month, at which numerous
family members and law enforcement testified, along with both E.R. and Rogers.
Citations and pinpoint citations are based on the Westlaw online version of the cited material. No. 82890-8-I/2
The jury found him guilty as charged. Rogers appealed to this court and his
conviction was affirmed.1
In November 2019, Rogers filed a personal restraint petition, alleging that
the presence of Bikers Against Child Abuse (BACA) members at his trial during
the two half-day sessions when E.R. testified resulted in the denial of his right to
fair trial. Because the trial record was devoid of facts regarding Rogers’ specific
allegations, the parties filed a joint motion to transfer the PRP back to the superior
court for an evidentiary hearing and determination on the merits. This court
granted the motion pursuant to RAP 16.11 and 16.12, directing that the trial court
“shall hold an evidentiary hearing to determine the merits of the petition. ‘Upon the
conclusion of the hearing . . . the superior court shall enter findings of fact and
conclusions of law and an order deciding the petition.’” (Citing RAP 16.12)
The trial court conducted the evidentiary hearing over the course of four
days during February and March of 2021 and took final argument on the matter in
April of that year. For purposes of the hearing, the parties agreed that the judge
could consider the entire record of the proceedings, as well as the court’s own
recollection of what occurred during the trial.2 Numerous witnesses testified at the
evidentiary hearing, including Rogers, his trial counsel, an investigator he retained
for the PRP, his wife and son, the deputy prosecutor who tried the case, BACA’s
child liaison, E.R.’s mother and grandmother, and E.R.’s legal advocate.
1 State v. Rogers, No. 77111-6 (Wash. Ct. App. Jun. 3, 2019) (unpublished),
https://www.courts.wa.gov/opinions/pdf/771116.pdf 2 The judge who conducted the evidentiary hearing and decided the PRP on remand was
the same judge who had presided over the original trial.
-2- No. 82890-8-I/3
At the conclusion of the proceedings on remand, the trial court entered 137
findings of fact regarding various issues addressed by the parties, along with 61
conclusions of law. Ultimately, the court concluded that BACA’s presence at trial
during E.R.’s testimony was not inherently prejudicial to Rogers and did not create
an unacceptable risk that impermissibly affected the jury; that BACA’s presence
did not deny Rogers a fair trial, the presumption of innocence, or the right to
confront and cross examine witnesses; and that Rogers failed to meet his burden
of proving the allegations contained in his petition and subsequent pleadings by a
preponderance of the evidence. The trial court dismissed Rogers’ PRP. He now
seeks review of that dismissal from this court.
ANALYSIS
I. Right To a Fair Trial
Rogers broadly argues that his right to a fair trial was denied by the
presence of BACA members during E.R.’s testimony. He also specifically asserts
that their presence at trial infringed on his right to the presumption of innocence
and, by framing the BACA members in attendance as “accusers” based on the
language on the patches on their vests, claims a violation of his right to
confrontation as he was unable to cross examine them.3
3 As an additional aspect of several of Rogers’ claims, he asserts that the fact that E.R.
held a teddy bear while she testified compounded or contributed to the denial of these various rights. This facet of his argument was introduced after the first two versions of his petition were filed, and the trial court took testimony on the issue at the evidentiary hearing and included the topic in its findings of fact and conclusions of law. Rogers initially asserted that the bear had been given to E.R. by BACA and was dressed in clothing with BACA symbols and slogans, including the word “VICTIM” on the bear’s vest, but those claims were disproved at the evidentiary hearing and Rogers conceded in later briefing that the bear was a generic stuffed animal. Further, the likelihood that E.R. would have the bear with her during testimony was known to defense counsel well before her appearance at trial.
-3- No. 82890-8-I/4
“The constitutional safeguards relating to the integrity of the criminal
process . . . embrace the fundamental conception of a fair trial, and . . . exclude
influence or domination by either a hostile or friendly mob.” Cox v. Louisiana, 379
U.S. 559, 562, 85 S. Ct. 476, 13 L. Ed. 2d 487 (1965). But, “a silent showing of
sympathy or affiliation in a courtroom, without more, is not inherently prejudicial.”
State v. Lord, 161 Wn.2d 276, 284, 165 P.3d 1251 (2007). Here, we “must
consider the courtroom scene presented to the jury and determine whether it was
‘so inherently prejudicial as to pose an unacceptable threat to defendant’s right to
a fair trial.’” Id. at 285 (quoting Holbrook v. Flynn, 475 U.S. 560, 572, 106 S. Ct.
1340, 89 L. Ed. 2d 525 (1986)).
As a preliminary matter, Rogers challenges conclusions of law 1, 2, and 6
which address the applicable legal standards.4 We review the trial court’s
conclusions of law de novo. State v. Schlieker, 115 Wn. App. 264, 269, 62 P.3d
520 (2003). In conclusion of law 1, the trial judge properly cited In re Pers.
Restraint of Gentry5 and noted that for Rogers “to prevail on a PRP alleging
constitutional error, he must show by a preponderance of the evidence that the
However, Rogers has waived review by failing to object to this matter at trial. State v. Lazcano, 188 Wn. App. 338, 354–56, 354 P.3d 233 (2015); RAP 2.5(a). Further, his trial counsel not only chose not to object, but actually elicited testimony regarding the bear during cross examination. Finally, it is unlikely that Rogers could establish that it was an abuse of discretion to allow E.R. to hold the stuffed bear while testifying. See State v. Hakimi, 124 Wn. App. 15, 19–22, 98 P.3d 809 (2004) (trial court did not abuse its discretion by permitting two child witnesses close in age to E.R. to hold dolls while testifying in a child molestation case).
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) No. 82890-8-I ) Respondent, ) DIVISION ONE ) v. ) UNPUBLISHED OPINION ) RANDALL HAROLD ROGERS, ) ) Appellant. ) )
HAZELRIGG, J. — Randall Rogers appeals the denial of his personal restraint
petition (PRP) following agreed remand to the trial court for an evidentiary hearing
and decision on the merits. The trial court ultimately concluded that Rogers failed
to meet his burden as to the various claims raised in his petition and dismissed it.
As he asserted in his underlying PRP, Rogers argues he was denied a fair trial, he
received ineffective assistance of counsel, and the prosecutor engaged in
misconduct, all broadly based on the presence of Bikers Against Child Abuse
members at trial during the child victim’s testimony. Finding no errors, we affirm.
FACTS
On March 13, 2017, Randall Rogers was charged with two counts of child
molestation in the first degree by amended information. The named victim was
E.R., Rogers’ granddaughter. A trial occurred later that month, at which numerous
family members and law enforcement testified, along with both E.R. and Rogers.
Citations and pinpoint citations are based on the Westlaw online version of the cited material. No. 82890-8-I/2
The jury found him guilty as charged. Rogers appealed to this court and his
conviction was affirmed.1
In November 2019, Rogers filed a personal restraint petition, alleging that
the presence of Bikers Against Child Abuse (BACA) members at his trial during
the two half-day sessions when E.R. testified resulted in the denial of his right to
fair trial. Because the trial record was devoid of facts regarding Rogers’ specific
allegations, the parties filed a joint motion to transfer the PRP back to the superior
court for an evidentiary hearing and determination on the merits. This court
granted the motion pursuant to RAP 16.11 and 16.12, directing that the trial court
“shall hold an evidentiary hearing to determine the merits of the petition. ‘Upon the
conclusion of the hearing . . . the superior court shall enter findings of fact and
conclusions of law and an order deciding the petition.’” (Citing RAP 16.12)
The trial court conducted the evidentiary hearing over the course of four
days during February and March of 2021 and took final argument on the matter in
April of that year. For purposes of the hearing, the parties agreed that the judge
could consider the entire record of the proceedings, as well as the court’s own
recollection of what occurred during the trial.2 Numerous witnesses testified at the
evidentiary hearing, including Rogers, his trial counsel, an investigator he retained
for the PRP, his wife and son, the deputy prosecutor who tried the case, BACA’s
child liaison, E.R.’s mother and grandmother, and E.R.’s legal advocate.
1 State v. Rogers, No. 77111-6 (Wash. Ct. App. Jun. 3, 2019) (unpublished),
https://www.courts.wa.gov/opinions/pdf/771116.pdf 2 The judge who conducted the evidentiary hearing and decided the PRP on remand was
the same judge who had presided over the original trial.
-2- No. 82890-8-I/3
At the conclusion of the proceedings on remand, the trial court entered 137
findings of fact regarding various issues addressed by the parties, along with 61
conclusions of law. Ultimately, the court concluded that BACA’s presence at trial
during E.R.’s testimony was not inherently prejudicial to Rogers and did not create
an unacceptable risk that impermissibly affected the jury; that BACA’s presence
did not deny Rogers a fair trial, the presumption of innocence, or the right to
confront and cross examine witnesses; and that Rogers failed to meet his burden
of proving the allegations contained in his petition and subsequent pleadings by a
preponderance of the evidence. The trial court dismissed Rogers’ PRP. He now
seeks review of that dismissal from this court.
ANALYSIS
I. Right To a Fair Trial
Rogers broadly argues that his right to a fair trial was denied by the
presence of BACA members during E.R.’s testimony. He also specifically asserts
that their presence at trial infringed on his right to the presumption of innocence
and, by framing the BACA members in attendance as “accusers” based on the
language on the patches on their vests, claims a violation of his right to
confrontation as he was unable to cross examine them.3
3 As an additional aspect of several of Rogers’ claims, he asserts that the fact that E.R.
held a teddy bear while she testified compounded or contributed to the denial of these various rights. This facet of his argument was introduced after the first two versions of his petition were filed, and the trial court took testimony on the issue at the evidentiary hearing and included the topic in its findings of fact and conclusions of law. Rogers initially asserted that the bear had been given to E.R. by BACA and was dressed in clothing with BACA symbols and slogans, including the word “VICTIM” on the bear’s vest, but those claims were disproved at the evidentiary hearing and Rogers conceded in later briefing that the bear was a generic stuffed animal. Further, the likelihood that E.R. would have the bear with her during testimony was known to defense counsel well before her appearance at trial.
-3- No. 82890-8-I/4
“The constitutional safeguards relating to the integrity of the criminal
process . . . embrace the fundamental conception of a fair trial, and . . . exclude
influence or domination by either a hostile or friendly mob.” Cox v. Louisiana, 379
U.S. 559, 562, 85 S. Ct. 476, 13 L. Ed. 2d 487 (1965). But, “a silent showing of
sympathy or affiliation in a courtroom, without more, is not inherently prejudicial.”
State v. Lord, 161 Wn.2d 276, 284, 165 P.3d 1251 (2007). Here, we “must
consider the courtroom scene presented to the jury and determine whether it was
‘so inherently prejudicial as to pose an unacceptable threat to defendant’s right to
a fair trial.’” Id. at 285 (quoting Holbrook v. Flynn, 475 U.S. 560, 572, 106 S. Ct.
1340, 89 L. Ed. 2d 525 (1986)).
As a preliminary matter, Rogers challenges conclusions of law 1, 2, and 6
which address the applicable legal standards.4 We review the trial court’s
conclusions of law de novo. State v. Schlieker, 115 Wn. App. 264, 269, 62 P.3d
520 (2003). In conclusion of law 1, the trial judge properly cited In re Pers.
Restraint of Gentry5 and noted that for Rogers “to prevail on a PRP alleging
constitutional error, he must show by a preponderance of the evidence that the
However, Rogers has waived review by failing to object to this matter at trial. State v. Lazcano, 188 Wn. App. 338, 354–56, 354 P.3d 233 (2015); RAP 2.5(a). Further, his trial counsel not only chose not to object, but actually elicited testimony regarding the bear during cross examination. Finally, it is unlikely that Rogers could establish that it was an abuse of discretion to allow E.R. to hold the stuffed bear while testifying. See State v. Hakimi, 124 Wn. App. 15, 19–22, 98 P.3d 809 (2004) (trial court did not abuse its discretion by permitting two child witnesses close in age to E.R. to hold dolls while testifying in a child molestation case). 4 Rogers appears to ignore the standard of review utilized by an appellate court in a case
presented under this procedural posture. The parties submitted an agreed motion to this court expressly seeking remand for resolution of this case. Accordingly, the trial court was ordered to both find facts as to Rogers’ initial claims and to substantively decide his personal restraint petition. On appeal, we are tasked with reviewing those facts found by the trial court for substantial evidence and, in addition to considering the conclusions of law de novo, determine whether they properly flow from the findings of fact. 5 137 Wn.2d 378, 410, 972 P.2d 1250 (1999).
-4- No. 82890-8-I/5
error has caused him actual prejudice.” As conveyed in conclusion of law 6, we
review the trial court’s determination that spectator conduct does not violate due
process for abuse of discretion. Lord, 161 Wn.2d at 283–84.6 The court identified
and employed the proper standards in consideration of Rogers’ PRP. Accordingly,
Rogers’ assignment of error as to conclusions of law 1, 2, and 6 fails.
In 44 separate assignments of error, Rogers challenges 32 findings of fact
and 31 conclusions of law. In addition to the standard of review set out above for
conclusions of law, we review challenged findings for substantial evidence. State
v. Coleman, 6 Wn. App. 2d 507, 516, 431 P.3d 514 (2018). “Substantial evidence
is evidence sufficient to persuade a fair-minded, rational person of the finding’s
truth.” State v. Stewart, 12 Wn. App. 2d 236, 240, 457 P.3d 1213 (2020). “‘So
long as this substantial evidence standard is met, a reviewing court will not
substitute its judgment for that of the trial court even though it might have resolved
a factual dispute differently.’” Coleman, 6 Wn. App. 2d at 516 (internal quotation
marks omitted) (quoting Blackburn v. State, 186 Wn.2d 250, 256, 375 P.3d 1076
6 Rogers assigns error to conclusion of law 2, which relies on In re Pers. Restraint of Merritt,
69 Wn. App. 419, 424 n. 4, 848 P.2d 1332 (1993) to state: “The trial court need not make a determinative finding regarding the issue at hand, but only that [the] petitioner has failed to prove his claim by a preponderance of the evidence, in which case the petition will be dismissed.” However, there can be no substantive claim here on appeal in light of the 137 findings of fact made by the trial court. Finding 137 states: The evidentiary hearing established, and the Court finds, that Rogers has failed to meet his burden of proof regarding his claims of demonstrative or rude behavior outside the courtroom. Even if Rogers’ claims are accurate, however there is no evidence that any juror witnessed the behavior complained of. In the absence of any such evidence, Rogers’ claims fail. The court here made both a “determinative finding regarding the issue at hand” and that Rogers failed to prove his claim by a preponderance. Even if this conclusion of law was inaccurate, which it is not, Rogers would be unable to demonstrate error given the manner by which the trial court resolved his petition.
-5- No. 82890-8-I/6
(2016)). Unchallenged findings of fact are treated as verities on appeal. Stewart,
12 Wn. App. 2d at 240.
Significant to this appeal is not only Rogers’ failure to engage with the
proper standard on review, but also the findings and conclusions he leaves
unchallenged which we must then accept as verities. As such, he does not carry
his burden to establish that he was denied his right to a fair trial or that the trial
court erred in so concluding. Rogers avers that the trial court also erred in finding
the vests BACA members wore were not guilt-suggestive or inherently prejudicial.
Specifically, he argues the wording on the BACA vests, which stated “Bikers
Against Child Abuse” accompanied by a fist with skull and crossbones and the
phrase “No Child Deserves to Live in Fear,” are what denied him a fair trial. At
trial, Rogers did not object to the vests, which BACA members use to pose as a
biker gang, but instead objected to the general “spectacle that’s about to occur.”
This appeared to be aimed broadly at BACA’s presence at trial as spectators rather
than the messages on their attire. The failure to object to the language or imagery
on the BACA vests does support an inference that defense counsel did not find
that they were guilt-suggestive or inherently prejudicial to his client.
Rogers fails to assign error to numerous findings key to his argument and
which binding precedent requires that we treat as verities. These unchallenged
findings are:
64. The Court finds that BACA’s presence did not actually or inherently prejudice Rogers’ right to a fair trial or have an impact on the jury verdict. ... 84. Further, the appearance of the BACA members during the time the jury was present was under the direct observation of the Court.
-6- No. 82890-8-I/7
The Court has no recollection that BACA’s appearance was “guilt suggestive” or intimidating to the jury, nor did BACA’s appearance cause the Court to take any preventative or remedial action regarding their appearance.
85. No juror was called as a witness at the evidentiary hearing with regard to BACA appearance. ... 107. The Court further finds that E[.]R[.]’s and BACA’s patches did not actually or inherently prejudice Rogers’ right to a fair trial or have an impact on the jury’s verdict.
108. No juror was called as a witness at the evidentiary hearing as to the issue of the legibility of patches worn by BACA members or E[.]R.
Taken together, these verities from the evidentiary hearing support the trial court’s
overarching conclusion that Rogers did not carry his burden to prove by a
preponderance of the evidence that an error occurred which caused him prejudice.
We decline to disturb such a conclusion based on this record and in light of the
manner by which Rogers presented this appeal.
Rogers not only fails to show that BACA’s presence, vests, and coordination
of attire with E.R. were inherently prejudicial, but also that he suffered any actual
prejudice at his trial. At the evidentiary hearing, Rogers did not call any of the
jurors who decided his case to demonstrate that any of them observed, much less
were able to read, the patches on the clothing. This is particularly critical given
that the largest BACA patches, and likely the easiest to read from a distance, were
on the backs of the vests and the members were seated in the gallery before the
jurors entered the courtroom (presumably with their backs against the seats). See
Norris v. Risley, 918 F.2d at 831 (9th Circ. 1990) (six jurors called to testify at
evidentiary hearing as to whether they were aware of spectators wearing “Women
-7- No. 82890-8-I/8
Against Rape” buttons). Instead, in unchallenged finding of fact 92, the court
expressly found “that jurors were effectively shielded from any direct view of BACA
members during trial.” Even more critically, Rogers does not assign error to finding
107 which states “E[.]R[.]’s and BACA’s patches did not actually or inherently
prejudice Rogers’ right to a fair trial or have an impact on the jury’s verdict.” We
end our inquiry here since this finding goes to the heart of what Rogers must
establish in order to succeed on his claims regarding BACA and his right to a fair
trial. As described above, Rogers avers the trial court used the wrong test for
determining prejudice, but he would be unable to prevail under any of the tests set
out in the various state or federal cases on this issue based on the findings he left
unchallenged.7
II. Ineffective Assistance of Counsel (IAC)
Rogers also asserts that his trial counsel was ineffective and challenges the
trial court’s numerous conclusions of law to the contrary. To prevail on this claim,
Rogers “must show (1) his defense counsel’s performance fell below an objective
standard of reasonableness and, if so, (2) that counsel’s poor work prejudiced
him.” In re Pers. Restraint of Caldellis, 187 Wn.2d 127, 140, 385 P.3d 135 (2016).
“When counsel’s conduct can be characterized as legitimate trial strategy or
7 Despite the framing of a claim regarding violation of the right to confrontation in the “Issues Pertaining to the Assignments of Error” in his opening brief, Rogers only mentions this challenge in passing in briefing. On that issue, he merely quotes from Norris, which was authored over a decade prior to the shift in confrontation clause analysis established in Crawford v. Washington. 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). If Rogers truly sought to have the issue considered as the separate assignment of error set out in briefing, he would first have the burden of establishing that the messages on BACA’s vests constituted testimonial statements. See State v. Ta’afulisia, __ Wn.2d __, 508 P.3d 1059 (2022). As he fails to engage in the proper legal test, we do not undertake such review.
-8- No. 82890-8-I/9
tactics, performance is not deficient.” State v. Kyllo, 166 Wn.2d 856, 863, 215 P.3d
177 (2009).
However, after the initial assignment of error to the conclusions of law,
Rogers did not otherwise engage with this challenge in his opening brief. In reply,
after the State noted the absence of argument on this claim, Rogers attempts to
reframe this assignment of error. However, we will not consider new issues raised
for the first time in reply. RAP 10.3(C); State v. Pleasant, 38 Wn. App. 78, 81, 684
P.2d 761 (1984). Even if we were to consider Rogers’ late reframing of his IAC
claim, he fails to demonstrate how counsel’s performance was not strategic,
tactical or otherwise objectively reasonable. This is an essential aspect of
determining deficiency. Equally critical to our consideration, Rogers provides no
argument as to how this performance prejudiced him. Failure to engage in the
requisite test forecloses relief on this challenge. Accordingly, we decline to
entertain Rogers’ assignment of error on this matter under RAP 10.3(a)(6) and
10.4. See State v. Mason, 170 Wn. App. 375, 384, 285 P.3d 154 (2012).
III. Notice to Defense of BACA’s Attendance at Trial
Finally, Rogers asserts that the prosecutor engaged in misconduct by not
informing him that BACA would be present at trial. However, the trial record and
the court’s findings after the evidentiary hearing indicate that Rogers’ counsel was,
at a minimum, informed at motions in limine or voir dire that BACA was aware of
the case and would likely be attending at least part of the trial. As a preliminary
issue, Rogers fails to provide any authority that would suggest he was entitled to
notice with regard to any class of spectators in the context of a trial or other open
-9- No. 82890-8-I/10
court proceedings. Based on the record before us, Rogers’ claim regarding lack
of notice is unsuccessful; both because he has again failed to engage with the
substantial evidence test such that this court could reach the court’s findings in this
regard8 and because he has not demonstrated that he was entitled to any such
notice.
Rogers does not substantively engage with the relevant legal tests required
for the various issues he presents on appeal and our review is confined by the
unchallenged findings and conclusions which we must accept as verities. The
findings of fact which were challenged are properly supported by substantial
evidence in the record and the conclusions of law appropriately follow the
controlling authority and flow from those findings. Accordingly, we find no error by
the trial court and affirm.
WE CONCUR:
8 This includes express findings that counsel did in fact receive notice of BACA’s
anticipated attendance at trial, but more critically, the trial court’s determination that Rogers’ trial counsel was not credible on this issue. Credibility determinations are within the province of the trial court and generally may not be disturbed by a reviewing court. In re Pers. Restraint of Davis, 152 Wn.2d 647, 680, 101 P.3d 1 (2004).
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