       IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
                           DIVISION ONE


In re Personal Restraint of:                         )          No. 78973-2-I
                                                     )
                                                     )          UNPUBLISHED OPINION
               RONALD GARTH PARKER                   )
__________________________________                   )          FILED: February 10, 2020


        ANDRUS, J    —   In his personal restraint petition, Ronald Parker challenges his

 convictions for child rape and child molestation.1             Parker argues that his trial

 counsel was ineffective in failing to investigate what he now claims is exculpatory

 evidence, and his appellate counsel was ineffective in failing to challenge the

 constitutionality of unrecorded sidebars during trial. Because Parker has failed to

 establish deficiencies in his representation, we deny his personal restraint petition.

                                            FACTS

        Shannon Dearinger and her four children, Adam MacCurdy (son, age 19),

 R.M. (daughter, age 13),J.M. (son, age 11), andA.M. (daughter, age 8), moved in

with Parker in September 2012. State v. Parker, 199 Wash. App. 1001, *1, 2017

WL 2117034 (2017).             There was significant discord between Parker and

 Dearinger’s children. Id. R.M. was particularly unhappy living with Parker, writing


        1This court affirmed his convictions and sentence in State v. Parker, No. 74030-0-I (Wash.
Ct. App. May 15, 2017) (unpublished), http://www.courts.wa.gov/opinions/pdf/740300.pdf, review
denied, 189 Wn.2d 1013, 402 P.3d 824 (2017).
No. 78973-2-U2

in her journal that she hated him and wanted to induce her mother to leave Parker.

Id.

       In June 2014, A.M. told R.M. that Parker had touched her inappropriately.

A.M.—with the encouragement of both R.M. and J.M.—told her mother that Parker

had touched her. Dearinger removed her children from the house and reported

the abuse to the police. ki. Soon after, a child interview specialist interviewed

A.M. about her allegations. ki. As a result, Parker was charged with four counts

of rape of a child in the first degree and four counts of child molestation in the first

degree.

       At trial, A.M. testified, consistent with the forensic interview, that Parker

molested her while they lay next to each other on a blue couch watching television

in Parker’s living room. Dearinger, J.M., and R.M. testified that the family watched

television together at least once a week and that Parker and A.M. were often on

the couch together covered by a blanket.

       Parker argued at trial that R.M. and A.M. colluded to fabricate the

allegations because they did not like living so far from their friends, did not like

Parker, did not like doing chores, and wanted to leave “by any means necessary.”

Parker’s trial counsel spent a significant amount of time cross examining R.M.

regarding the animosity she felt toward Parker and the entries in her journal where

she documented her intent to lie to her mother about Parker in order to cause them

to break up.




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          The jury convicted Parker of four counts of first degree rape of a child, three

counts of first degree child molestation, and one count of attempted child

molestation. Parker, 199 Wn. App. at *1.

          On appeal, Parker challenged the impartiality of his jury, the admissibility of

A.M.’s recorded forensic interview, the exclusion of R.M.’s journal, and

prosecutorial statements during closing arguments. This court rejected Parker’s

arguments and affirmed Parker’s convictions and sentence.               Id. at *7    Our

Supreme Court denied review. State v. Parker, 189 Wn.2d 1013, 402 P.3d 824

(2017).

          Parker now asserts that his legal representation at trial and on appeal was

deficient. Parker argues his trial counsel failed to investigate whether the blue

couch on which A.M. testified the molestation occurred was actually in the living

room at the time of the charged crimes. He also contends trial counsel failed to

uncover the fact that A.M. had watched a cartoon television show in which children

reported false allegations of sexual abuse to rid themselves of adults they did not

like. Finally, Parker maintains that appellate counsel was ineffective by failing to

argue that the trial court violated his constitutional right to a public trial when it

conducted off-the-record sidebar conferences.

                               STANDARD OF REVIEW

       Parker has raised only constitutional errors in his petition—ineffective

assistance of counsel at trial and ineffective assistance of counsel on appeal. To

obtain relief in a collateral attack based on a constitutional error, a petitioner must

demonstrate by a preponderance of evidence that he was actually and


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substantially prejudiced by the alleged error. In re Pers. Restraint of Coggin, 182

Wn.2d 115, 119, 340 P.3d 810 (2014). A petitioner seeking a reference hearing

must offer facts underlying the claim and evidence to support the factual

allegations. In re Pers. Restraint of Yates, 177 Wn.2d 1, 18, 296 P.3d 872 (2013).

A petitioner must “demonstrate that he has competent, admissible evidence to

establish the facts that entitle him to relief.” In re Pers. Restraint of Ruiz-Sanabria,

184 Wn.2d 632, 636, 362 P.3d 758 (2015). “[Blare assertions and conclusory

allegations are insufficient.” ki.

       Under the Sixth Amendment to the United States Constitution and article I

section 22 of the Washington State Constitution, a defendant in a criminal

proceeding is guaranteed the right to effective assistance of counsel. ~ In re

Pers. Restraint of Davis, 152 Wn.2d 647, 672, 101 P.3d 1(2004). To successfully

challenge the effectiveness of their assistance of counsel, a petitioner must satisfy

a two-part test.    Id.   The petitioner must show that “(1) defense counsel’s

representation was deficient, i.e., it fell below an objective standard of

reasonableness based on consideration of all the circumstances; and (2) defense

counsel’s deficient representation prejudiced the defendant, i.e., there is a

reasonable probability that, except for counsel’s unprofessional errors, the result

of the proceeding would have been different.” State v. McFarland, 127 Wn.2d 322,

334-35, 899 P.2d 1251 (1995). “The United States Supreme Court has defined

reasonable probability as ‘a probability sufficient to undermine confidence in the

outcome.” Davis, 152 Wn.2d at 673 (quoting Strickland v. Washington, 466 U.S.

668, 669, 104 5. Ct. 2052, 2056, 80 L. Ed. 2d 674 (1984)). A reviewing court


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“approaches an ineffective assistance of counsel argument with a strong

presumption that counsel’s representation was effective.” Id.; see also McFarland,

127 Wn.2d at 335.

                                     ANALYSIS

       Parker raises three challenges to his legal representation. First, Parker

contends that his trial counsel failed to investigate whether the blue couch, on

which A.M. testified the events occurred, was actually in the living room when

Parker allegedly molested her. Second, Parker argues that his trial counsel failed

to investigate whether A.M. and R.M. had watched an episode of the television

show, South Park, in which one character instructed another on how to falsify

incidents of “molestering” to get rid of adults they did not like. Finally, Parker

contends that his appellate counsel was ineffective by not arguing Parker’s public

trial rights had been violated when the trial court conducted off-the-record sidebar

conferences.

       1.      The Blue Couch

       A.M. testified that each time Parker molested her, they were lying down on

“Ron’s couch” in the living room watching television. While it was undisputed that

“Ron’s couch” was the “blue couch,” Parker now asserts that the blue couch was

in the dining room for the majority of the time A.M. lived in the home and that his

trial counsel was ineffective in failing to investigate where the blue couch was when

the alleged molestation occurred. Parker contends that had such an investigation

occurred, it would have undermined A.M.’s credibility.




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No. 78973-2-116

       To support his blue couch claim, Parker submitted declarations from his

mother, Judy Burke, a friend, AIf Vatne, and A.M.’s teenage brother, Adam

MacCurdy. Burke testified the blue couch was in Parker’s dining room and not

within eyesight of the television until April or May of 2014, at which point it was

moved to the living room. Vatne and MacCurdy similarly testified that the blue

couch was in the dining room for ‘the vast majority of the time frame alleged in the

complaint.” Each witness declared that the blue couch was moved from the dining

room to the living room at some point, possibly in the spring of 2014. Parker

contends that, it Would have been impossible for him to see the television while

lying on the blue couch with A.M. before the spring of 2014.        He argues this

evidence proves A.M.’s allegations are untrue.

      A defense attorney has a duty to conduct a reasonable factual investigation

to make informed decisions about how best to represent the client. Davis, 152

Wn. 2d at 721. There is a strong presumption that the conduct of defense counsel

falls under the “wide range of reasonable professional assistance.”        ki.   “An

attorney’s action or inaction must be examined according to what was known and

reasonable at the time the attorney made his choices.” ld.at 722.

      In this case, Parker does not argue that his trial counsel failed to interview

key material witnesses before trial. Indeed, trial counsel called Burke, Vatne and

MacCurdy to testify for Parker. None of these witnesses contend that they ever

told Parker’s trial counsel about the blue couch’s location in the dining room.

Parker, who also testified at trial and presumably has personal knowledge of when

his couch was in the living room, has provided no evidence that he or anyone else


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No. 78973-2-1/7

informed trial counsel that the blue couch was not moved to the living room until

the spring of 2014. And there is no evidence that trial counsel knew, but neglected

to elicit, this evidence during trial. In fact, during oral argument on this petition,

Parker’s counsel conceded that Parker probably did not tell his trial counsel that

the blue couch had been moved.

       Instead, Parker merely asserts, without evidence, that his trial counsel had

an obligation to investigate “all possible defenses.” But Parker’s trial counsel

clearly investigated the defense of fabrication. Counsel effectively cross examined

R.M. about her “five point plan” to force her mother to leave Parker. R.M. admitted

that she wrote “I hate Ron” in bold letters in her journal. And counsel attempted to

get R.M. to admit that she put A.M. up to making false allegations about Parker.

       While facts relating to the location of the blue couch would have furthered

Parker’s defense, Parker cites no authority for the proposition that an attorney is

ineffective for failing to discover facts about which that attorney is never put on

notice. Given that trial counsel had access to Parker and each of the declarants,

any contention that further investigation would have uncovered this exculpatory

evidence is speculative at best.

       Moreover, even if a petitioner can show that exculpatory evidence unknown

to trial counsel would have been uncovered by further investigation or interview,

we must still consider whether counsel’s deficient performance actually and

substantially prejudiced the petitioner. Davis, 152 Wn.2d at 739. In evaluating

prejudice, ineffective assistance of counsel claims based on a duty to investigate

must be considered in light of the strength of the government’s case. j.ç[~


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No. 78973-2-1/8

       Here, the State charged Parker with four counts of child rape and four

counts of molestation between August 17, 2012, when A.M. moved into Parker’s

home, and June 16, 2014, when A.M. was removed from his home. A.M. could

not recall at trial exactly when the instances of molestation occurred, but she was

able to describe multiple incidents all occurring on the blue couch. R.M. testified

that A.M. disclosed the molestation to her on the night before the last day of school

in June. Dearinger testified she then reported the crimes to the police in June

2014. If Parker relocated the blue couch into the living room in April 2014, as

Burke now testifies, and A.M. and Parker were together on that couch frequently,

as A.M. testified, there was still a significant amount of time during which the

molestation could have in fact occurred. The new evidence does not make the

rapes or molestation an impossibility.

       And the State’s case was otherwise a strong one. R.M. corroborated the

blue couch’s location and observed Parker and A.M. lying together on the couch

covered by a blanket. J.M. also testified that he sawA.M. and Parker lying together

on their sides under a blanket while watching television. Dearinger identified the

blue couch as being located in the living room and recalled seeing A.M. and Parker

together on that couch. She testified that they watched television as a family at

least once a week, if not multiple times each week, and that Parker often asked

A.M. to sit with him on his couch. Dearinger reported that when A.M. disclosed the

molestation to her, AM. looked serious and was wringing her fingers. A.M.’s

reports of the molestation to her mother were consistent with her testimony at trial

and with the information she provided the child forensic interviewer.         When


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No. 78973-2-1/9

Dearinger confronted Parker, he initially denied it but then said “like, well, maybe

when I was sleeping” it happened.

       In light of the record before us, Parker has not carried his burden of

establishing that his trial counsel was ineffective in failing to discover that Parker’s

blue couch was in the dining room until April or May of 2014 or that the failure to

discover this evidence actually and substantially prejudiced Parker.

       2.     The South Park Episode

       Parker contends that his trial counsel was also ineffective in failing to

discover that A.M. and R.M. repeatedly watched and may have been influenced

by an episode of the cartoon television show South Park entitled “The Wacky

Molestation Adventure.” In that episode, a young character learns that if he reports

false allegations of “molestering,” he can rid himself of adults he does not like.

Parker argues the failure to discover this fact adversely impacted him because it

would have supported the defense theory that A.M. and R.M. fabricated the

allegations as a way to get rid of Parker.

       Parker has presented MacCurdy’s declaration to substantiate this claim.

But as we have indicated, an attorney must be on notice of some allegation or fact

in order to determine whether to investigate it. See Davis, 152 Wn. 2d at 722.

MacCurdy, whom trial counsel called as a defense witness at trial, does not allege

that he told Parker’s trial counsel about the South Park episode. There is certainly

no declaration from Parker’s trial counsel to support the contention that he was

made aware of the fact and neglected to investigate it. Because the record does

not indicate that Parker’s trial counsel was ever made aware of this episode of


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No. 78973-2-1/10

South Park, it cannot be said that he was ineffective for not discovering it. While

the evidence would have been relevant, had MacCurdy actually told trial counsel

about it, there is simply no basis for us to conclude that Parker’s trial counsel had

notice that either A.M. or R.M. knew of or had watched this show. Without this

evidence, Parker has not established a prima facie case of ineffective assistance

of counsel warranting a reference hearing or the reversal of his conviction.

        3.         Public Trial Right

        Finally, Parker argues that his appellate counsel was ineffective for failing

to argue that his constitutional right to a public trial was violated when the trial

conducted off-the-record sidebar conferences.           A petitioner raising ineffective

assistance on appeal must show that the legal issue that counsel failed to raise

had merit and must then show that he was prejudiced by appellate counsel’s failure

to raise the issue. In re Pers. Restraint of Dalluge, 152 Wn.2d 772, 778, 100 P.3d

279 (2004).

       Article I, section 22 of the Washington State Constitution and the Sixth

Amendment to the United States Constitution guarantee a “public trial by an

impartial jury.”     But the public trial right is not absolute. State v. Wise, 176 Wn.2d

1, 9,288 P.3d 1113 (2012). Our courts use a three-step framework to determine

whether a defendant’s public trial rights have been violated. State v. Smith, 181

Wn.2d 508, 514, 334 P.3d 1049 (2014). First, we ask whether the proceeding

implicates the public trial right. ki. Second, if the right attaches, we then ask

whether the courtroom was closed. ki. at 520. Third, if the courtroom was closed,

we ask whether the closure was justified. kI.


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No. 78973-2-I/li

       Our Supreme Court has adopted the experience and logic test to determine

whether a proceeding implicates the public trial right, the first prong of the three

step framework. The first part of the test, the experience prong, “asks whether the

place and process have historically been open to the press and general public.”

Id. at 514 (quoting State v. Sublett, 176 Wn.2d 58, 72, 292 P.3d 715 (2012)). The

second part of the test, the logic prong, “asks whether public access plays a

significant positive role in the functioning of the particular process in question.” ki.

       In Smith, our Supreme Court held that the right to a public trial does not

extend to sidebar conferences because “[s}idebar conferences have historically

occurred outside the view of the public” and “deal with mundane issues implicating

little public interest.” ~ at 515-16. In discussing the logic prong, the court noted

that “evidentiary rulings that are the subject of traditional sidebars do not invoke

any of the concerns the public trial right is meant to address regarding perjury,

transparency, or the appearance of fairness.”         Id. at 518.    It reasoned that

evidentiary rulings, exclusively within the province of the trial judge, do not aid the

public and “allowing the public to ‘intrude on the huddle” would add nothing

positive to sidebars in our courts. k1.

       Here, Parker has not demonstrated that the sidebar conferences extended

beyond “mundane issues implicating little public interest.” The sidebars occurred:

during voir dire, before and during A.M.’s cross-examination, before R.M.’s direct

examination, during J.M.’s testimony, during Dearinger’s testimony, before the

testimony of the child interview specialist, during MacCurdy’s testimony, after

Burke’s testimony, after Vatne’s direct examination, and during Parker’s testimony.


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       Parker concedes that many of these sidebar conferences occurred to

discuss scheduling or were in response to an evidentiary objection.            He has

presented no evidence that the sidebars involved anything other than such routine

matters. Although the trial court certainly should have recorded the side bars or

memorialized them after-the-fact under Smith, it does not follow that the trial court

violated Parker’s public trial right by not doing so. Based on this record, the sidebar

conferences did not implicate Parker’s public trial rights. Because this claim lacks

merit, Parker’s appellate counsel was not ineffective in deciding to forego this issue

on direct appeal.

       We deny Parker’s personal restraint petition.




WE CONCUR:




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