      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


In the Matter of the Personal              )      No. 77780-7-I
Restraint of:                              )
                                                  DIVISION ONE
ERIC STEVEN SCHNEIDER,                     )
                                           )      UNPUBLISHED OPINION
             Petitioner.
________________________________           )      FILED: October 14, 2019
      LEACH, J.   —   Eric Schneider collaterally challenges his 2014 convictions for

two counts of rape of a child in the second degree—domestic violence, one count

of rape of a child in the third degree—domestic violence, and incest in the first

degree.   He asserts his trial counsel provided ineffective assistance because

counsel did not retain a medical expert to respond to the State’s medical expert’s

testimony. But Schneider does not establish that his counsel did not retain a

medical expert. Neither does he show that counsel’s decision not to present a

medical expert’s testimony was an unreasonable trial strategy. So he does not

prove deficient performance. We deny the petition.

                                       FACTS

      In 2011, the State charged Schneider with two counts of rape of a child in

the second degree—domestic violence, one count of rape of a child in the third

degree—domestic violence, and incest in the first degree. A jury found him guilty
No. 77780-7-1/2


as charged. The trial court sentenced him to life in prison with a minimum term

of 280 months.    Schneider appealed his convictions.         This court affirmed the

convictions in an unpublished opinion.1 The Washington Supreme Court denied

Schneider’s motion for discretionary review. He now challenges his convictions

with this personal restraint petition (PRP).    He asks this court to consider the

record from the direct review proceedings.

      We repeat the following facts from this court’s opinion affirming his

convictions on appeal. J.S. was born March 1, 1995, to Elizabeth. In December

2005, Elizabeth married Eric Schneider. Schneider often took care of J.S. and

her two siblings while Elizabeth worked nights.

       J.S. reported the following facts in police interviews and trial testimony.

Schneider began sexually abusing J.S. after he married her mother. The first

incident occurred while Schneider and the three children were driving at night to

pick up Elizabeth. After Schneider stopped the car near the woods, he told the

boys to get out and play.      He then took J.S. onto his lap and attempted to

penetrate her vaginally. When she told him that hurt too much, he penetrated

her anally instead. Later, again in a vehicle, Schneider raped J.S. vaginally for

the first time after taking her to a father-daughter dance.




       1State v. Schneider, No. 71822-3-I (Wash. Ct. App. April 25, 2016)
(unpublished), http://www.courts.wa.qov/opinions/pdf/71 8223.rdf.

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No. 77780-7-1/3


      J.S. could recall only these incidents in detail. The “rest of the times, they

just blended in.” She testified that the rapes occurred once per week in the

beginning and increased to three or four times per week when she was 14 and

15. Schneider and J.S. also had oral sex. Schneider penetrated J.S. using sex

toys. At other times, he penetrated her with a handgun. He asked J.S. to wear

her mother’s lingerie and high-heeled shoes. He showed her pornography and

asked her to imitate what it showed.

      Schneider and J.S. often had sex in vehicles. He also took her to empty

houses under construction and to motel rooms. Schneider also had sex with J.S.

in her parents’ bedroom and her own bedroom and, less often, in the living room.

      J.S. described Schneider as being gentle with her at first but violent as

she grew older. He hit her. He put a belt around her throat and held it during

sex. He penetrated her with a sex toy in one orifice while he was penetrating her

in another. After he raped her in the shower, he urinated on her.         Once, he

carved his initials on her pubis with a knife, making her bleed. When J.S. told

Schneider she wanted to stop having sex, Schneider told her he would kill her if

she told anyone about the abuse. Schneider also told J.S. he had been “fixed”

so they did not need to use condoms. J.S. reported, accurately, that Schneider

is circumcised.

      J.S. stated in some interviews that Elizabeth’s ex-partner molested her

when she was five years old. She told Schneider about this abuse. In 2011,


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No. 77780-7-1/4


Schneider took her to an appointment with a mental health counselor. During the

session, she told the counselor that Schneider had not abused her. J.S. also

spoke to Annetta Spicer, formerly Schneider’s family law lawyer, as part of a

child custody dispute between Schneider and his ex-wife, Jessica. Spicer told

J.S. that Jessica’s sister, AS., had alleged Schneider abused her.

         J.S. told her mother about Schneider’s abuse in October 2011. He had

last raped her about two weeks earlier, after he and Elizabeth had separated.

The next week, J.S. reported the rapes during a sexual assault examination with

Nurse Joanne Mettler who testified at trial. Schneider’s counsel did not present a

medical expert at trial. The trial court admitted A.S.’s testimony that Schneider

raped her when she was a young girl. It found that the alleged rapes of A.S. and

J.S. were “markedly similar” and ruled that the State could present evidence of

the earlier rapes to show “a general plan, a design to fulfill [Schneider’s] sexual

compulsions.” A.S. testified at length about Schneider’s abuse.


                                      ANALYSIS

         Schneider claims that his trial counsel provided ineffective assistance

 because counsel did not retain a medical expert or present expert medical

 testimony controverting Nurse Mettler’s testimony. We disagree.

         To receive collateral relief by a PRP, a defendant must show either an

 error    of   constitutional   magnitude   that   caused   actual   prejudice   or   a


                                            -4-
No. 77780-7-115



nonconstitutional error that resulted in a “‘complete miscarriage of justice.”2 An

ineffective assistance of counsel claim alleges a claim of constitutional

magnitude. The Sixth Amendment to the United States Constitution and article I,

section 22 of the Washington Constitution guarantee the right to effective

assistance of counsel to help ensure a fair trial.3

       Claims of ineffective assistance present mixed questions of law and fact,

which this court reviews de novo.4 When this court examines an ineffective

assistance claim,     it strongly presumes that counsel         provided effective

representation.5 To succeed on an ineffective assistance claim, the defendant

must show that (1) his counsel’s performance fell below an objective standard of

reasonableness and (2) prejudiced him.6 Counsel’s performance is deficient if it

was unreasonable under prevailing professional norms and was not sound trial

strategy.7 This court evaluates the reasonableness of counsel’s performance

from “counsel’s perspective at the time of the alleged error and in light of all the


       2 In re Pers. Restraint of Grantham, 168 Wn.2d 204, 212, 227 P.3d 285
(2010) (quoting In re Pers. Restraint of lsadore, 151 Wn.2d 294, 298, 88 P.3d
390 (2004)).
       ~ See State v. Grier, 171 Wn.2d 17, 32, 246 P.3d 1260 (2011); see also
State v. Coristine, 177 Wn.2d 370, 375, 300 P.3d 400 (2013).
       ~ In re Pers. Restraint of Fleming, 142 Wn.2d 853, 865, 16 P.3d 610
(2001).
       ~ In re Pers. Restraint of Davis, 152 Wn.2d 647, 673, 101 P.3d 1(2004).
       6 Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984).
       ~ Davis, 152 Wn.2d at 673.
No. 77780-7-1/6



circumstances.”8 To establish prejudice, a defendant must show a reasonable

probability that the result of the trial would have been different without his

counsel’s deficient performance.9    “A reasonable probability is a probability

sufficient to undermine confidence in the outcome.”1° In a PRP proceeding, a

defendant who shows ineffective assistance has necessarily met his burden to

receive collateral relief.11

       Here, the State presented the testimony of Mettler, an advanced

registered nurse practitioner at the Harborview Center for Sexual Assault and

Traumatic Stress. Mettler testified about her credentials, including a bachelor’s

degree in nursing, a master’s degree in maternal child health, and a post-

certificate as a pediatric nurse.     She also testified about her extensive

experience. She had been in her current position for 15 years and performed

medical evaluations of children when there are concerns of abuse.         Before

working at Harborview, she practiced as a nurse for 15 years in various

capacities, some involving treating patients who were sexually abused.       She

testified that she keeps up-to-date with the medical literature relevant to

evaluating and treating sexual abuse patients.

        8Davis, 152 Wn.2d at 673 (quoting Kimmelman v. Morrison, 477 U.S. 365,
384, 106 5. Ct. 2574, 91 L. Ed. 2d 305 (1986)).
       ~ Strickland, 466 U.S. at 694.
       10 Strickland, 466 U.S. at 694.
       ~ In re Pers. Restraint of Crace, 174 Wn.2d 835, 846-47, 280 P.3d 1102
(2012).
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No. 77780-7-1/7



       Mettler stated that she performed a full-body exam of J.S. on November 3,

2011. She used a magnifying tool called a colposcope to check J.S.’s genital

and anal areas. Mettler concluded that J.S. had a “normal genital examination,”

meaning Mettler did not observe any sign of infection, acute injury, or healed

injury. And she did not find any sexually transmitted diseases. She testified that

because a female’s genital area heals “really quickly,” this result did not mean

that J.S. had never had vaginal sex. She explained that the hymen, which sits at

the opening to the vagina, does not “disappear[    ]“   when a woman has vaginal

sex.   So the fact that J.S.’s hymen looked “very thick and very wavy and

redundant” is not indicative of an absence of penetration. She testified that a

woman could give birth to two children and have no visible evidence of scarring

or tearing. Mettler explained that 98 percent of the time she finds no evidence of

any kind of injury in the vaginal or anal tissues in patients who claim sexual

abuse. During cross-examination, she stated that although she did not assess

J.S. for “notches,” a V-shape in the hymen resulting from penetration, she has

seen notches in some patients.

       Mettler also stated that J.S. had two small anal fissures or tears to the

skin, which generally heal within 48 to 72 hours. Because J.S. told Mettler the

last time she had seen Schneider was a month before her examination, Mettler



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No. 77780-7-1/8



reported that the fissures were not related to any assault that may have occurred

when J.S. last saw him.

      Schneider contends that his trial counsel’s decision not to hire or call a

medical expert witness was not a legitimate trial tactic because “[ajny reasonably

competent attorney would have located a medical expert who could testify

regarding these medical findings and the importance of this evidence and Nurse

Mettler’s testimony.” We address the failure to hire an expert witness claim first.

       Schneider acknowledges that generally, “the decision whether to call a

witness is a matter of legitimate trial tactics and will not support a claim of

ineffective assistance of counsel.”12      But Schneider emphasizes that the

Washington Supreme Court has stated, “depending on the nature of the charge

and the issues presented, effective assistance of counsel may require the

assistance of expert witnesses to test and evaluate the evidence against a

defendant.”13 And our Supreme Court has noted that in cases of child sexual

abuse, “[t]he most effective types of corroboration   .   .   .   are eyewitness testimony,

a confession or admissions by the accused, and medical or scientific testimony

documenting abuse.”14        But this authority does not require that this court

conclude an attorney’s performance is deficient if he or she does not hire a


       12   State v. Maurice, 79 Wn. App. 544, 552, 903 P.2d 514 (1995).
       13   State v. A.N.J., 168 Wn.2d 91, 112, 225 P.3d 956 (2010).
       14   State v. Swan, 114 Wn.2d 613, 622-23, 790 P.2d 610 (1990).
                                          -8-
No. 77780-7-1/9



medical expert in a child sexual abuse case.            Schneider cites no in-state

authority in which a reviewing court concluded that a defendant’s trial counsel

provided ineffective assistance because he or she failed to retain a medical

expert.        Instead, he relies on four cases from other jurisdictions; two were

reversed and two are factually distinguishable.

          First, he cites Jackson v. Conway.15 There, the United States District

Court held, in relevant part, that Jackson’s trial counsel provided ineffective

assistance because his counsel failed to retain a medical expert witness to opine

on the trauma observed during the victim’s physical evaluation and the

discrepancies of this evaluation.16 But the United States Court of Appeals for the

Second Circuit reversed, holding that Jackson’s trial counsel’s performance was

not deficient because he was operating under the assumption that the State

would not call a medical expert at trial.17 So, counsel refrained from calling a

medical expert for a valid strategic reason, to prevent the State from cross-

examining a defense expert witness.18

          Second, Schneider relies on Michael T. v. Commissioner of Correction,19

in which the Connecticut Court of Appeals held, “[Tjhe petitioner is entitled to a


          15765 F.Supp.2d 192 (W.D.N.Y. 2011).
          16   Jackson, 765 F.Supp.2d at 262-68, 287.
          17   Jackson v. Conway, 763 F.3d 115, 153 (2nd Cir. 2014).
          18   Jackson, 763 F.3d at 153-54.
          19   122 Conn. App. 416, 999 A.2d 818 (2010).
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No. 77780-7-1110



new trial because his trial counsel was ineffective in failing to present expert

testimony to challenge the state’s expert medical testimony that strongly linked

the child’s trichomonas~20~ to a sexual assault.” The Connecticut Supreme Court

reversed, holding that defense counsel elicited the possibility of non-sexual

transmission during cross-examination, so the defendant did not establish that

any deficiency caused him prejudice.21

      Third, Schneider cites a California appellate case, In re Hill,22 in which a

jury convicted Hill of 23 counts of sexual offenses. Hill had the herpes virus and

the victim initially reported 100 to 200 instances of sexual contact with him.23

After trial, Hill consulted a medical expert who stated that it was almost a

statistical certainty that the victim did not have sexual intercourse with Hill 100 to

200 times because she was not infected with the herpes virus.24 The California

Court of Appeals held that Hill’s trial counsel provided ineffective assistance by

failing to present expert testimony about the lack of physical findings and

infection after that many contacts.25     The court additionally reasoned that a


       20 “Trichomonas is a parasitic protozoa that can infect the urinary tract or
prostate of males and the vagina or urinary tract of females.” Michael T., 122
Conn. App. at 419 n.5.
       21 Michael T. v. Comm’r of Corr., 307 Conn. 84, 102-03, 52 A.3d 655

(2012).
       22 198 Cal. App. 4th 1008, 1011, 129 Cal.Rptr.3d 856 (2011).

       23Ffifl 198 Cal. App. 4th at 1015, 1029.
       24 Hill, 198 Cal. App. 4th at 1029.
       25 Hill, 198 Cal. App. 4th at 1029.

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No. 77780-7-I/Il



defense expert would have supported the victim’s testimony at trial, in which she

recanted her previous allegations of sexual assault.26

       Last, he cites Gersten v. Senkowski.27         There, the State presented

uncontroverted expert testimony describing colposcopic evidence as “highly

suggestive of penetrating trauma to the hymen.”28 The United States Court of

Appeals for the Second Circuit affirmed the trial court’s grant of Gersten’s petition

for a writ of habeas corpus based on ineffective assistance of counsel.             It

reasoned that because Gersten’s trial counsel failed to call as a witness or even

consult any medical expert on child sexual abuse, “[cjounsel essentially

conceded that the physical evidence was indicative of sexual penetration.”29

       Jackson and Michael T. were reversed on the relevant issue, so they are

not persuasive. In Hill, the victim recanted, and there was an exculpatory fact

related to the medical evidence that Hill’s trial counsel did not pursue. That is not

this case. And in Gersten the State’s medical expert presented physical evidence

of abuse and Gersten’s trial counsel did not solicit medical expert consultation or

testimony to controvert it.    Here, Mettler testified that she found no physical

evidence of abuse.      These cases do not support that Schneider’s counsel

provided deficient performance by not retaining a medical expert witness.

       26~fll,198 Cal. App. 4th at 1018, 1029.
       27 426 F.3d 588 (2nd Cir. 2005).
       28 Gersten, 426 F.3d at 595.
       29 Gersten, 426 F.3d at 607-08.
                                        —11—
No. 77780-7-1/12



      Additionally, Schneider’s PRP counsel conceded at oral argument that he

could not establish that Schneider’s trial counsel did not consult with a medical

expert. Mark Vovos, an attorney who Schneider retained to provide an expert

opinion about the performance of Schneider’s trial counsel, stated only that he

reviewed the materials PRP counsel provided; he did not state that he reviewed

Schneider’s trial counsel’s file despite PRP counsel’s representation during oral

argument that PRP counsel had this file.

       Schneider also fails to show that his counsel’s decision about presenting a

medical expert was not a legitimate trial tactic. After his trial, Schneider retained

new counsel who consulted with Dr. Stephen R. Guertin, a physician of 35 years.

Guertin’s qualifications include his many duties at Sparrow Hospital in Lansing,

Michigan where he is Medical Director of the Sparrow Children’s Center, Director

of the Pediatric Intensive Care Unit, and a physician member of the Child Safety

Program.    In addition, he is an Associate Professor of Pediatrics at Michigan

State University’s College of Human Medicine.         He does clinical work in the

areas of general pediatrics, pediatric critical care, and child abuse.          After

reviewing J.S.’s and Mettler’s testimony and Mettler’s medical report, he

prepared a report detailing the current research about “remote examinations of

post-pubertal girls claiming that intercourse occurred many times during

prepubertal puberty, and postpubertal period” and his opinions.

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No. 77780-7-1/13



            His report summarized a number of studies related to postpubertal vaginal

intercourse, bleeding, and prepubertal vaginal penetration by an erect penis. He

stated that two prominent studies from 1996 and 2004 established that the most

common residual injuries of the hymen after intercourse in teens are

“transections and deep notches of the posterior (lower) portion of the hymen at

3:00                                                                                   and

9:00.   .   .   .   [Ajccording to our current (2015) guidelines[, these indicators] can be

used to support a history of penetrative sexual abuse.” Because Mettler did not

examine J.S. for notches, she made no finding about whether J.S. had notches.

Schneider’s trial counsel cross-examined Mettler about her failure to assess J.S.

for notches without presenting expert witness testimony on the issue. Counsel

asked Mettler a number of questions about notches and she reiterated that she

did not assess for notches. On the State’s redirect examination, the prosecutor

asked Mettler why she did not assess J.S. for notches; Mettler replied, “In

general, I don’t assess for notches in adolescents, or actually even in children

where there’s a report or an indication that there’s been prior penetration.”

            Guertin also discussed two studies, conducted in 2009 and 2004, which

did not include all notches as physical evidence of penetration; he opined that

these studies did not include the injuries most commonly sustained during

intercourse in adolescents or use the proper definition of deep notch and or
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No. 77780-7-1/14



transections.     In the 2009 study, only 13 percent of 410 teens who had

experienced penetrative abuse showed physical evidence of penetration. And in

the 2004 study, only 18 percent of 28 pregnant teens showed abnormal physical

indicators. Based on these studies, only 13 to 18 percent of teens alleged sexual

abuse would be expected to have physical findings.         Guertin’s report also

discussed   two    studies   concluding that an    abnormal   examination was

approximately 2.5 times more likely when a report of vaginal bleeding was part of

the allegation. One was the 2009 study in which a positive exam was 2.47 times

greater with a history of bleeding, which means approximately 32 percent of

teens showed physical evidence. These studies are not sufficiently conclusive to

show that Schneider’s trial counsel performed deficiently by not introducing them

through expert testimony.     Indeed, some of them strongly corroborate Nurse

Mettler’s opinion about a “normal exam.” This court cannot fault counsel for not

calling an expert who would be forced to admit this on cross-examination.

       Guertin additionally discussed anal injury, stating that because anal

injuries heal quickly, “anal injury may be expected up to 63% of the time when. a

sodomy victim is examined within 3 days of the last assault, [and] by 5 weeks

later a normal examination would be predictable.” Guertin opined that an anal

examination done as remotely as J.S.’s “cannot be used to imply that sodomy

had not occurred.” This is consistent with Mettler’s testimony that J.S.’s anal

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No. 77780-7-1/15



fissures were unrelated to any sexual abuse that occurred when J.S. last saw

Schneider. Additional testimony about this issue would have been cumulative.

       Last, Guertin’s report focused on the effects of vaginal-penile penetration

on prepubertal girls. Guertin stated studies show that penile penetration in the

vagina of an eight-or nine-year-old girl would be expected to cause a complete

tear or transection of the hymen because the hymen of a prepubertal girl is not

easily stretched. Studies show that although prepubertal transections can heal to

the point of appearing normal, most prepubertal penetration causes tears or

notches in the hymen that persist.

       First, although Schneider asserts “it bears noting that the State did solicit

lengthy testimony by [J.S.] about rapes which occurred apparently prior to the

age range of over 12 for those charges actually prosecuted,” he acknowledges

that a discussion about prepubertal penetration “is rendered to some degree

irrelevant by the State’s charging decisions in this case.” Second, Guertin stated

that the penile penetration J.S. experienced started when she was “only 8-9

years old and likely was prepubertal at that time.”          But J.S. testified that

Schneider started having sex with her after he and her mother were married,

which her mother testified occurred in 2005 when J.S. was 10 years old. And

J.S. testified that Schneider initially penetrated her only anally because it hurt her

for him to do so vaginally. At 10 years old, J.S. was no longer in the 8-to-9 year

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No. 77780-7-1/16



old prepubertal range that Guertin’s cited studies discussed. Third, the studies

support that a prepubertal girl who experiences transections caused by vaginal-

penile penetration can have a normal examination later on. Finally, as stated

above, Mettler did not assess J.S. for notches, so any study relying on notch

findings would not provide a basis for effective cross-examination or argument to

the jury. For these reasons, Guertin’s discussion about the effects of penetration

in prepubertal girls is not helpful to Schneider.

       Based on these studies, Guertin concluded one of four alternative

scenarios occurred.       Three of these alternatives rely on J.S. experiencing

prepubertal intercourse, which, as discussed above, is inconsistent with J.S.’s

testimony. The fourth alternative is “Nothing happened to [J.S.’s] genital and

anal areas [because J.S.] is fabricating a story. Parental influence, a desire to

share victimhood or to be one, persistent questioning[,}      .   .   .   a vendetta or

exposure to sexual activity or pornography might help explain the story.” But

experts may not state an opinion about a victim’s credibility because such

testimony invades the province of the jury.3° So any defense expert would not

have been permitted to testify about whether he or she believed J.S. was

fabricating her testimony.




       30   State v. King, 131 Wn. App. 789, 797, 130 P.3d 376 (2006).
                                         -16-
No. 77780-7-1/17



       We conclude that it was within the realm of sound trial strategy for

Schneider’s trial counsel not to call a medical expert to testify about the

significance Nurse Mettler’s exam or challenge her opinion about the absence of

physical evidence of trauma to J.S.       First, Mettler reported that she did not

observe any evidence of trauma, meaning the medical evidence did not

corroborate J.S.’s claims of abuse. Mettler’s testimony that she commonly finds

no evidence of injury in the vaginal or anal tissues in patients who have been

sexually abused did provide medical evidence supporting J.S.’s claim that

Schneider abused her.       Second, the studies that Guertin cites measuring

physical evidence of abuse other than notches reported a low incidence of

physical evidence among victims of penetrative abuse. These studies do not

help Schneider. And cross-examination of an expert like Guertin would have

emphasized studies like these. Also, it would have involved questions about the

specific nature of the rapes J.S. described. Schneider’s trial counsel reasonably

could have chosen to avoid these questions to prevent generating sympathy for

J.S. and the reiteration of the gruesome details of the rapes.31

       Schneider does not establish through Guertin’s report that his trial

counsel’s decision not to call a medical expert was not a legitimate trial tactic.


       31  See Harrinqton v. Richter, 562 U.S. 86, 108, 131 5. Ct. 770, 178 L. Ed.
2d 624 (2011) (“An attorney need not pursue an investigation that would be
fruitless, much less one that might be harmful to the defense.”).
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No. 77780-7-1/18



Because he does not prove deficient performance, we need not examine

prejudice.32   Schneider does not overcome the strong presumption that his

counsel provided effective representation.

       We deny the petition.




WE CONCUR:



           F            a
                        V




      32  State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996) (stating if
a reviewing court concludes that a defendant fails to establish either prong of
ineffective assistance of counsel, it need not inquire further).

                                      -18-
