                                                                                                            I   V i lj .
                                                                                                                VISION
                                                                                                                Yi
                                                                                                                      ti.   l
                                                                                                                                11




      IN THE COURT OF APPEALS OF THE STATE OF WASHIN

                                              DIVISION II

STATE OF WASHINGTON,                                                           No. 43597 -7 -II


                                 Respondent,


         v.




WILLIAM LLOYD CARTER,                                                  UNPUBLISHED OPINION


                                 Appellant.




         LEE, J. —   William Lloyd Carter appeals the trial court' s decision to deny his motion for a

new trial based on newly discovered evidence following his conviction of first degree child

molestation.    He also argues that he received ineffective assistance of counsel during trial when

his attorney moved to suppress exculpatory evidence and failed to call an expert to testify about

the   concept of   transferred memory.    Because Carter does not show that his new evidence was


material, admissible, and would have changed the trial' s result, and because his trial attorney' s

decisions were based on legitimate trial strategy and the available evidence, we affilin.

                                                   FACTS


         In June 2010, Richard called the police to report that Carter had molested 16- year -
                                                                                             old

GM1
       seven or eight years earlier.    Richard is GM' s father, and Carter is GM' s step -grandfather.

The State charged Carter with one count of first degree child molestation ( domestic violence).

         GM testified that when she was in fifth grade, she lived with her father Richard, her

brother, her half uncle Colin, her
                  -                       grandmother          Joy,   and   her step -grandfather Carter.            Her


grandparents shared a    bedroom   on   the   top floor   of   the house.   GM and her brother shared a room




1 To provide some confidentiality in this case, we use initials in the body of the opinion to
identify the   minor victim.
No. 43597 -7 -II




on the top floor as well, though her brother usually slept in the basement with their father
Richard.


           GM testified that she got into her grandparents' bed one night because she was afraid to


sleep by herself. When she woke up, her grandmother Joy had gone downstairs, and she could

feel Carter'   s   hands    on   her   body. GM was wearing a nightgown and underwear, but Carter put

his hands on her bare skin and his mouth on her breast. He touched her chest, back, buttocks and

vagina, and under          her clothing.     She tried to roll away twice, but he rolled her back over and

said, "   I know that I     am a   bad   grandpa."   1   Report    of   Proceedings ( RP)     at   45. Carter stopped and


pretended to be asleep when Joy came back upstairs.

           Joy told her to go back to her own bed, and GM returned to, her room and turned on a

movie     because    she was scared.         Carter then appeared at her door and asked if he could watch


television with her. She said he could but explained that she had to go to the bathroom first. She

went to the bathroom, locked the door, and waited because she could see his shadow under the

door.


           GM heard the front door           open,   which meant          that her father Richard        was   home.   She


called down to Richard and later went to his room to tell him that she was scared because Carter

had touched her       inappropriately. Richard said he would take care of it, but he did not report the

incident.


           Both GM and her mother, Jodie, testified that they spent a weekend together in 2010.

GM    suspected     that Jodie     was   using drugs     and   became angry     with   her.    Jodie gave GM her drug

treatment statement, which explained that she used drugs because she had been sexually abused.

GM    responded      that   she   had been   abused as well        but   was not   using drugs.       GM told her mother


about Carter. Jodie talked to Richard, and Richard called the police.

                                                               2
No. 43597 -7 -II




        Carter, Joy, and Carter' s younger son Colin testified for the defense, Joy testified that the

family would gather in the bedroom that she and Carter shared to watch television and that she

would go     downstairs     at   3: 00   or   4: 00   AM to make coffee.        Colin testified that he, GM and her


brother often fell asleep in his parents' bedroom. Carter testified that he never slept with both his

wife Joy and GM and denied molesting GM. The jury found him guilty as charged on December

7, 2011.


        On April 6, 2012, Carter moved for dismissal or for a new trial based on an alleged Brady

violation and     newly discovered            evidence.     This motion was based on an interview that Richard


had with a private investigator, Carter' s trial attorney, and another defense attorney on March 22,

2012.   In that interview, Richard asserted that he had informed the prosecuting attorney before

Carter' s trial that he had growing doubts                 about    GM' s   allegations.   Richard explained that GM


was less certain about Carter' s abuse than she was about her previous abuse by Mark Bethea,

who was convicted         before Carter       went     to trial. Richard said that he told the prosecutor that GM



was confusing her dreams with reality.

        The State responded to Carter' s motion by filing an affidavit in which the prosecutor

denied that the    pretrial conversation              described in Richard' s interview      occurred.   The State also


filed the transcript of a pretrial interview with Richard' s mother, Joy, in which she described her

son as a compulsive liar.


           Richard did not testify at the hearing on Carter' s motion despite defense counsel' s

attempts    to   secure   his    attendance.          The attorney who prosecuted Carter testified and denied

speaking with Richard before trial about any doubts he had concerning GM' s allegations.

2
 A Brady violation occurs when the prosecution suppresses evidence favorable to an accused
where the evidence is material to guilt or punishment. Brady v. Maryland, 373 U.S. 83, 87, 83 S.
Ct. 1194, 10 L. Ed. 2d 215 ( 1963).
                                                                3
No. 43597 -7 -I1



Carter' s trial attorney testified that she learned during discovery that Bethea had been accused of

abusing GM, but         saw no reason          to   pursue   this     evidence.        She moved to exclude the allegations


against Bethea because she thought it best to proceed based on the single allegation against

Carter. She did        not call    any   expert     because     she   had   no reason        to do   so.   She added that Richard


was quite hostile to the defense to the point that he was disruptive during Carter' s court

proceedings and even brought a weapon to the courthouse.


             The trial court agreed with the State that there was no Brady violation because the

evidence showed that the conversation between Richard and the prosecuting attorney did not
         3
occur.        The court then turned to the motion for a new trial based on newly discovered evidence,

observing that its outcome depended on Richard, who had not appeared, and that there was no

explanation for Richard' s change of heart. The court found that Richard' s new statements were

 classic impeachment evidence" and denied the motion for a new trial. RP ( June 1, 2012) at 96.


             On appeal, Carter argues that the trial court abused its discretion in denying his motion

for a new trial based on newly discovered evidence and that he received ineffective assistance of

counsel at trial.


                                                             ANALYSIS


A. MOTION FOR A NEW TRIAL


             Carter   moved      for   a new   trial   under    CrR 7. 5(   a)(   3), which permits a trial court to grant a


new   trial based      on   newly discovered           evidence.      To grant such a motion, the trial court must find


that the      evidence (    1)   will   probably       change   the    result of    the trial, ( 2)    was discovered since the


trial, ( 3)    could not     have been discovered before trial                    by   the   exercise      of   due diligence, ( 4) is



3 Carter conceded at the outset of the hearing that his claim of a Brady violation was " very, very
weak."        RP ( May 25, 2012) at 3. He does not renew this claim of error on appeal.

                                                                      4
No. 43597 -7 -II




material, and ( 5) is not merely cumulative or impeaching. State v. Macon, 128 Wn.2d 784, 800,

911 P. 2d 1004 ( 1996).              The absence of any one of these factors is grounds to deny a new trial.

State v. Williams, 96 Wn.2d 215, 223, 634 P. 2d 868 ( 1981).

           We review the trial court' s decision on a motion for a new trial for an abuse of discretion


or when         the decision       is based     on an erroneous        interpretation       of   the law.   State v. Robinson, 79


Wn.     App.      386, 396, 902 P. 2d 652 ( 1995).                  An abuse of discretion exists when the trial court


acted on untenable grounds or for untenable reasons. Robinson, 79 Wn. App. at 396.

           Carter asserts that he could not have discovered this new evidence before trial because


Richard was so angry after learning of the allegations of abuse that he could not think clearly,

had   refused      to   testify,   and    that his thoughts        cleared   only   after   Carter'   s trial.   The State does not


address the timing of Richard' s disclosures, and instead focuses on the other elements of the

newly discovered              evidence      test, i. e.,    whether the evidence would probably change the trial' s

result,    is   material,      and   is   not   merely       impeaching. Because the State does not challenge the

timing of the newly discovered evidence, we assume that Richard' s disclosures were not

discoverable before trial and turn to the remaining elements that Carter must satisfy.

           In addressing whether newly discovered evidence would probably change the trial' s

result,    the     court      must   consider         the    credibility,   significance,        and cogency of the proffered

evidence.         State v. Gassman, 160 Wn. App. 600, 609, 248 P. 3d 155, review denied, 172 Wn.2d

1002 ( 2011).           See   also   Schlup      v.   Delo, 513 U. S. 298, 332, 115 S. Ct. 851, 130 L. Ed. 2d 808


 1995) ( in assessing          probative        force   of   newly discovered       evidence, "     the court may consider how

the timing of the submission and the likely credibility of the affiants bear on the probable

reliability      of   that evidence ").         Evidence is material if it has some logical connection with the


facts     of consequence            or    the issues.        BLACK' S LAW DICTIONARY 1066 ( 9th                    ed.   2009).   The

                                                                       5
No. 43597 -7 -II



evidence must        be     material and admissible.         State v. Eder, 78 Wn. App. 352, 357, 899 P.2d 810

 1995),   review     denied, 129 Wn. 2d 1013 ( 1996).            Finally, the newly discovered evidence must not

be   mere   impeachment          or evidence       offered   solely to   show   the   witness   is   not   truthful.   State v.


Burke, 163 Wn.2d 204, 219, 181 P. 3d 1 ( 2008);                      see also State v. Hutcheson, 62 Wn. App. 282,

300, 813 P. 2d 1283 ( 1991) (              new trial should not be granted when only purpose of new evidence

is to impeach testimony presented at trial), review denied, 118 Wn.2d 1020 ( 1992).

          The trial court summarized the key allegations in Richard' s interview as follows:

          His doubts arose because [ GM] did not appear as confident when talking about
           Carter' s] abuse as she did when talking about the other sexual abuse she suffered
          with Mark Bethea. In addition, she would have nightmares about being abused by
          Mark Bethea but never by the defendant in this case. The victim was a heavy
          sleeper as a child and had nightmares. Lastly, [ Richard] claims that the victim' s
          story would vary slightly when she would tell the story to [ Richard].

Clerk' s Papers ( CP) at 233. We discuss these allegations separately to determine whether they

qualify as newly discovered evidence requiring a new trial.

          1. DOUBTS ABOUT GM' S ALLEGATIONS


          Richard began doubting GM' s allegations because her stories about what Carter did

 would      be    fuzzy," and GM' s demeanor was different when she talked about what Carter did

versus what Bethea did. CP at 140. According to Richard:

          She is my firstborn and she is just like me to the point that I know she is not a liar,
          she     doesn' t do this for       attention.    She — her   stories would be fuzzy when it came
          to this detail of what [ Carter] did to her... .


                             My daughter is bulletproof, okay, in my eyes, she' s my hero because
          of this.        When        we   would   start   to talk    about   Mark [ Bethea]         the surety, the
          shoulders up, okay, she knew what happened and she knew that I needed to hear it
          in     explicit   detail.    Um, she was positive, she didn' t um, look off and do these
          kinds of things, okay. And she knew that the details that she was going to inform
          me of with Mark were a hundred times worse than the details of the one incident
          with [ Carter],      okay.



                                                                 6
No. 43597 -7 -I1



                              And she knew that at the time, my rage for Mark was just as much for
           Carter] because these two had                violated       my daughter, okay. So for me to notice a
           difference enough to where it would cause me to doubt, is enough proof for me to
           know that        she ( sic) not   lying,   she —   you know, I can' t reiterate that enough, okay.

CP at 140, 148 -49.


           The trial court found that this evidence went solely to the victim' s credibility and was

impeachment evidence. We agree.


           While    lay      opinion    testimony may be                admissible        in    some    instances,   expressions   of



personal      belief   as   to   another witness' s      veracity       are not appropriate.            State v. Montgomery, 163

Wn.2d 577, 591, 183 P. 3d 267 ( 2008).                   Indeed, the parties agreed before trial that such evidence


would     be inadmissible.           Thus, the trial court did not abuse its discretion in finding Richard' s

statements went to GM' s veracity and were not sufficient to support a new trial.

           Comments that            are attempts      to describe      a   witness'   s   demeanor may be         admissible.   State


v.   Rafay,   168 Wn.        App.   734, 808, 285 P. 3d 83 ( 2012), review denied, 176 Wn.2d 1023, and cent.


denied, 134 S. Ct. 170 ( 2013).                Here, the only demeanor evidence that Richard described was

GM' s failure to make eye contact when talking about Carter and her raised shoulders when

talking    about   Bethea. Even if admissible, we do not see these details as material evidence that


probably would have changed the trial' s outcome, particularly when we consider the trial court' s
                                                                   4
finding    regarding Richard' s lack           of   credibility:


           He did not show up and testify at the hearing for the new trial and waited until 3
           months after the trial to provide this information to defense counsel. His behavior
           of threatening the defendant with a shiv is not consistent with a person who
           believed the defendant is innocent                    as [      Richard]       claims     in his   statement.   In
           addition,    [ Richard' s] mother, who was a witness for the defense, does not believe

           he is a credible witness due to multiple incidents where the defendant has made
           up false     allegations      or    events.     Because [ Richard] is not present, there is no


4
     We   note   here that credibility determinations              are not subject             to   review.   State v. Fiser, 99 Wn.
App. 714, 719, 995 P.2d 107, review denied, 141 Wn.2d 1023 ( 2000).
                                                                       7
No. 43597 -7 -II



          explanation      for his   change of      heart    or change of         story. [ Richard] is the person
          who brought these allegations to the attention of the police.


CP   at   233.    Even defense counsel conceded that she had concerns about Richard' s credibility

during the post -trial interview because of his earlier anger and hostility toward Carter.

          The credibility of an affiant is relevant to the probative force of his allegations. Based on

the record before us, we see little probability that Richard' s testimony about GM' s uncertainty

regarding Carter' s molestation and her demeanor while talking about what Carter did would have

changed the trial outcome.


          2. GM' S CONFUSION OF DREAMS WITH REALITY


          Richard also thought GM was confusing her dreams with reality because she changed the

details of her story and because she is difficult to wake up.

Specifically, Richard stated:

          But she could never tell me if itat first she couldn' t even tell me if [Carter]
          picked    her up     and she was       asleep, okay.      I ...     it took   quite a   few times ...   and

          then it happened three times, all right.
                    But then she was like, no I think maybe those times I was dreamin [ sic]
                 then I woke up, but that time I know he did because I woke up and his hand
          was on       my boob. You' re         eight years old, you        don' t have   a   boob, okay but ... and
          then    you'   d —she' d look up into the sky and —and what                         he said ... it kind of
          creeped me out,      but it didn' t really creep me out. You know, `cuz it was somethin
           sic] that he said, you know, grandma' s in the other room, don' t worry, baby girl,
          it' s just   me and you    here, don' t be      scared.     Um, and then it would change to um,
          you gotta      be   quiet, grandma' s     in the   other room.          Or maybe it was you know .. .
          those kind ...       those kind of ways that she described.


CP at 149 -50.


           GM testified that Carter molested her once. Therefore, to the extent Richard' s statements


claim GM suggested Carter abused her more than once, it would be impeachment evidence.

GM' s testimony          about    Carter'   s   alleged   abuse     did     not   change.       Thus, Richard' s statements


regarding apparent changes in GM' s story when discussing Carter' s abuse would, at best, also be
                                                                8
No. 43597 -7 -II



impeachment            evidence.     Moreover, evidence of how difficult it was to awaken GM is not


relevant to any fact of consequence, and it is unlikely that such evidence would have affected the

outcome      of    the trial.      Therefore, the trial court did not abuse its discretion in finding these

statements failed to provide a basis for a new trial.


        3.   GM' S NIGHTMARES


        Finally, Richard asserted that he doubted GM' s allegations because she was having

nightmares about Bethea, but not about Carter. According to Richard:

        I told [ the      prosecutor] ...     my daughter          needed      to   get —she   needed to get this over
        with       because      of   the   nightmares       that   she   was        having —um,       about this whole
                                                    how                                   that'             she ended —I
        thing —        about    everything    and           often   they    came and              s   why
        made her stop goin [ sic] to therapy because when she had to talk about it more,
        she'   d have      you   know,       a week, okay. I mean, scream nightmares
                                           almost   three ...
        and       it   was always     about   Mark [ Bethea] ...
                                                   she' d wake up and she' d have the
        most scared look on her face, but not once did I ever hear her cry out about
        Grandpa.


CP at 153 -54.


        When determining whether newly discovered evidence will probably change the result of

trial, we do not consider what effect that evidence may have on the defendant' s case, but rather

we weigh      the newly discovered            evidence against           the   strength of     the State'   s   case.   In re Pers.


Restraint of Faircloth, 177 Wn.               App.   161,. 167 -68, 311 P. 3d 47 ( 2013) (              citing State v. Peele, 67

Wn.2d 724, 732, 409 P. 2d 663 ( 1966)).                    When there is convincing evidence of guilt and little to

no evidence of          innocence, the trial    court should not grant a new              trial '     upon the offer of any new


evidence unless it appears that the newly discovered evidence is of such significance and

cogency that it will probably              change    the   result of     the trial. "'   In re Faircloth, 177 Wn. App. at

168 ( quoting Peele, 67 Wn.2d at 732).




                                                                    9
No. 43597 -7 -II




        Nothing in Richard' s statements about GM' s nightmares directly undermines the State' s

evidence.    Even if GM' s nightmares focused on Bethea, that focus does not show that Carter did


not molest GM as well. Thus, Carter has failed to demonstrate that his alleged newly discovered

evidence was    sufficiently     significant and cogent    to   warrant a new   trial.   The trial court did not


abuse its discretion or erroneously interpret the law in concluding that Richard' s post - rial
                                                                                         t

statements did not qualify as newly discovered evidence that justified a new trial.

B. INEFFECTIVE ASSISTANCE OF COUNSEL


        Carter argues that he received ineffective assistance of counsel at trial because his


attorney did not understand that she could have hired an expert to testify about the concept of

transferred memory and instead moved to suppress the evidence of GM' s abuse by Mark Bethea.

        This   court reviews      ineffective   assistance of counsel claims    de   novo.   State v. Sutherby,

165 Wn.2d 870, 883, 204 P. 3d 916 ( 2009).              In reviewing an ineffective assistance of counsel

claim, this court begins with a strong presumption of counsel' s effectiveness. State v. Grier, 171

Wn.2d 17, 33, 246 P. 3d 1260 ( 2011).           A defendant claiming ineffective assistance of counsel has

the burden to      establish   that ( 1)   counsel' s performance was deficient and ( 2) the performance


prejudiced   the defendant'     s case.    Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,


80 L. Ed. 2d 674 ( 1984).            Counsel' s performance is deficient if it falls below an objective


standard of reasonableness and is not based on a legitimate strategic or tactical decision. State v.


McFarland, 127 Wn.2d 322, 334 -36, 899 P. 2d 1251 ( 1995).                We must strongly presume that

counsel' s conduct constituted sound trial strategy. In re Pers. Restraint ofRice, 118 Wn.2d 876,

888 -89, 828 P. 2d 1086,       cent.   denied, 506 U.S. 958 ( 1992).    Failure to establish either prong is

fatal to an ineffective assistance of counsel claim. Strickland, 466 U.S. at 700.




                                                         10
No. 43597 -7 -II



         Carter complains that his counsel should not have moved to suppress evidence of the


allegations against     Bethea because that      evidence would         have helped Carter'        s case.    He explains


that counsel could have argued that GM was confused because GM' s allegations against Bethea

occurred at the same time as her allegations against Carter, and counsel could have hired an


expert to discuss the issue of transferred memory, particularly in light of GM' s nightmares.

         At the hearing on Carter' s motion for a new trial, his trial attorney explained that she

thought the best strategy was to exclude Bethea' s conduct and proceed based on the single

allegation against Carter. She added:


         Based on what I anticipated the evidence to be, I thought I couldn' t explain away
         any of Mr. Bethea' s conduct or I believe I thought that the jury would make
         assumptions based on that that I didn' t want them to make, so I did ask to exclude
         his testimony.

RP (   May    25, 2014)      at   62.   Although she was aware of the concept of transferred memory,

Carter' s attorney had no information at the time about GM' s nightmares and no reason to believe

that GM      was   transferring her memory       of   Bethea' s   abuse      to Carter.    GM' s testimony regarding

Carter' s single incident of abuse was clear and consistent, and counsel had no grounds on which

to   argue   the   theory   of   transferred memory     without   the   evidence of       her   nightmares.    Moreover,


given Carter' s previous argument that this evidence could not have been discovered before trial,


counsel      cannot now      be faulted for   failing   to rely   on   it.   Carter' s trial attorney had legitimate

reasons for suppressing the evidence of Bethea' s abuse, and Carter does not succeed in showing

deficient performance. Consequently, Carter' s claim of ineffective assistance of counsel fails.




                                                           11
No. 43597 -7 -II



        We affirm.


        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.




                                              12
