                                                                                             Filed
                                                                                       Washington State
                                                                                       Court of Appeals
                                                                                        Division Two

                                                                                        October 15, 2019




     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II
 In the Matter of the                                              No. 53385-5-II
 Personal Restraint of

 EDWARD JAMES WILKINS,

                               Petitioner.
                                                             UNPUBLISHED OPINION



       LEE, A.C.J. — Edward Wilkins seeks relief from personal restraint imposed as a result of

his 2015 convictions for first degree rape of a child and first degree child molestation. We issued

the mandate of Wilkins’s direct appeal on March 19, 2018. His petition, received on March 21,

2019, was placed in the prison mail system on March 19, 2019, making his petition timely filed

under GR 3.1 and RCW 10.73.090(3)(b).

A.     AMENDED INFORMATION

       Wilkins argues that the amended information adding the charge of first degree child

molestation was constitutionally deficient. Where, as here, the validity of the information was not

challenged at trial, the defendant must show that (1) the essential elements do not appear in any

form, or by fair construction, in the information and (2) that he was actually prejudiced by the

language of the information. State v. Kjorsvik, 117 Wn.2d 93, 105-06, 812 P.2d 86 (1991).

       A person is guilty of child molestation in the first degree when the person has, or
       knowingly causes another person under the age of eighteen to have, sexual contact
No. 53385-5-II


       with another who is less than twelve years old and not married to the perpetrator
       and the perpetrator is at least thirty-six months older than the victim.

RCW 9A.44.083(1).

       The amended information charging Wilkins with first degree child molestation alleged:

              The defendant, in the County of Cowlitz, State of Washington, on, about,
       or between 01/01/2007 and 03/16/2008, being at least thirty-six months older than
       Jane Doe, DOB 07/08/2004, did engage in sexual contact with Jane Doe, a person
       who was less than twelve years of age and not married to the defendant, contrary
       to RCW 9A.44.083 and against the peace and dignity of the State of Washington.

Pet., App. A, at 1. Thus, this information alleges all of the essential elements of the crime and is

therefore valid.

       Wilkins appears to be under the misapprehension that the child molestation charge had to

allege an act separate and distinct from the alleged act of rape of a child. But as explained in his

direct appeal, State v. Wilkins, 200 Wn. App. 794, 807-08, 403 P.3d 890 (2017), review denied,

190 Wn.2d 1004 (2018), the State can charge and convict a defendant of both rape of a child and

child molestation for the same act.

B.     INEFFECTIVE ASSISTANCE OF COUNSEL

       Wilkins argues that his trial counsel provided ineffective assistance of counsel.          To

establish ineffective assistance of counsel, Wilkins must demonstrate that his counsel’s

performance fell below an objective standard of reasonableness and that as a result of that deficient

performance, the result of his case probably would have been different. State v. McFarland, 127

Wn.2d 322, 335-36, 899 P.2d 1251 (1995); Strickland v. Washington, 466 U.S. 668, 687, 104 S.

Ct. 2052, 80 L. Ed. 2d 674 (1984). We presume strongly that trial counsel’s performance was

reasonable. State v. Grier, 171 Wn.2d 17, 42, 246 P.3d 1260 (2011).



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No. 53385-5-II


       Wilkins argues that his trial counsel provided ineffective assistance of counsel when he did

not object to those portions of the victim’s child hearsay statement that referred to acts Wilkins

committed against other children. But Wilkins’s trial counsel objected to the admission of the

child hearsay statement under former RCW 9A.44.120 (1995) and State v. Ryan, 103 Wn.2d 165,

172, 691 P.2d 197 (1984), and the trial court overruled the objection and admitted the evidence.

Wilkins’s trial counsel also objected under ER 404(b) to those portions of the statement that

referred to acts Wilkins committed against other children. The trial court overruled that objection

and we affirmed, holding that the trial court did not abuse its discretion in ruling that ER 404(b)

did not apply because the statements went not to the defendant’s propensity to commit other bad

acts but to the victim’s state of mind. Wilkins, 200 Wn. App. at 814-15. Wilkins now appears to

argue that his trial counsel should also have objected on grounds of hearsay. But given that the

trial court had ruled that the statements went to the victim’s state of mind, Wilkins does not show

that not additionally objecting on grounds of hearsay was below an objective standard of

reasonableness. Wilkins fails to show ineffective assistance of counsel.

       Wilkins also argues that his trial counsel provided ineffective assistance of counsel by

agreeing to the admission of the video containing the victim’s child hearsay statement. But trial

counsel’s objection to the admission of the child hearsay statement had been overruled. Wilkins

does not show that his counsel had any valid grounds for additionally objecting to the video of the

statement and so does not show ineffective assistance of counsel.

       Finally, Wilkins argues that his trial counsel provided ineffective assistance of counsel by

not calling as witnesses two women, Crystal Clark and “Shawna,” who would have testified that




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No. 53385-5-II


Wilkins did not have herpes in 2008.1 Pet., App. B, at 5. But Wilkins does not show how either

of these women could have been competent witnesses to render such a medical diagnosis and so

does not show ineffective assistance of counsel.

                                           CONCLUSION

         Wilkins does not present grounds for relief from restraint. We, therefore, deny his 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.



                                                     LEE, A.C.J.
    We concur:



    WORSWICK, J.




    MELNICK, J.




1
 The State established that the victim had contracted herpes in 2008 when the child rape and child
molestation occurred. Wilkins, 200 Wn. App. at 799-801.
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