                                                                                               Filed
                                                                                         Washington State
                                                                                         Court of Appeals
                                                                                          Division Two

                                                                                           May 19, 2020




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 STATE OF WASHINGTON,                                                No. 52885-1-II

                                Respondent,

        v.

 SAMUEL DAVID SCHMITTLER,                                     UNPUBLISHED OPINION

                                Appellant.

       CRUSER, J. — Samuel Schmittler appeals his conviction of second degree assault of a

child with domestic violence and use of a position of trust aggravators. He argues that (1) the trial

court erred in denying his request for an inferior degree offense instruction, (2) he was deprived

of effective assistance of counsel when his attorney failed to object to certain inadmissible

evidence, and (3) the trial court violated the separation of powers doctrine when it included a

provision in his sentence that gave the Department of Corrections (DOC) discretion over setting

community custody conditions. Schmittler raises additional arguments in a statement of additional

grounds (SAG).

       We hold that (1) the trial court properly declined to issue the inferior degree offense

instruction because the evidence did not show that Schmittler committed third degree assault of a

child to the exclusion of second degree assault of a child, (2) Schmittler was not deprived of
No. 52885-1-II


effective assistance of counsel because Schmittler has not shown, on the record before us, that his

counsel’s decision not to object to certain testimony was deficient performance or that he was

prejudiced by counsel’s performance, and (3) the trial court did not violate the separation of powers

doctrine because DOC is empowered to set additional community custody conditions. We further

conclude that none of the SAG claims warrant reversal of Schmittler’s conviction.

       Accordingly, we affirm.

                                              FACTS

                                         I. THE INCIDENT

       On December 24, 2016, Schmittler was married to and living with Brandi La Fountain,

who had two children—RW, who was nine years old, and DW, who was seven years old—from a

prior relationship. Schmittler and La Fountain also had a child of their own, who was an infant in

2016. While La Fountain was at work, Schmittler was responsible for caring for the three children.

       La Fountain was the primary residential parent of RW and DW, and she shared residential

time of the boys with their father, Terry Warren. During the Christmas holiday in 2016, RW and

DW spent Christmas Eve with Schmittler and La Fountain.

       La Fountain was working until about 8:00 PM that evening. Schmittler made dinner for the

boys, but RW did not eat his dinner within the time allotted. Doctors were concerned that RW

was “extremely undersized” for his age and that he apparently had trouble eating. 1 Verbatim

Report of Proceedings (VRP) at 41. Schmittler and La Fountain imposed a time limit on RW,

during which RW was required to eat his entire dinner, because they did not know how else to

resolve that issue. But because RW did not eat his dinner on time, Schmittler took RW into a back

room and “spanked” him. Id. at 157.


                                                 2
No. 52885-1-II


       When La Fountain returned home from work later that evening, she noticed that RW had

a small bruise on his lower back. She confronted Schmittler regarding the bruise, and he admitted

to spanking RW.

       Warren picked his sons up from Schmittler and La Fountain’s residence the following

afternoon, on December 25, 2016. The next day, on December 26, Warren noticed bruising on

RW’s back. Warren photographed the bruises. Warren recalled that when he had picked RW up

the night before, he was more withdrawn than usual. Warren sent the photographs to his sister,

who had been living with him at the time, while she was at work, asking whether she knew what

had happened to cause the bruising. One of Warren’s sister’s coworkers saw the photos and

contacted police.

       Officer Trevor Donnelly and Sergeant Aaron Elton arrived at Schmittler and La Fountain’s

home on December 26 to do a welfare check on the children. Both Schmittler and La Fountain

were home when police arrived, but the two boys were not present. Schmittler and La Fountain

invited the police into their home after the officers identified themselves and explained that they

were there in response to a phone call they received regarding RW.

       During this first contact with police, at which time the police had not yet begun a criminal

investigation, Schmittler and La Fountain explained the discipline structure in their household.

Schmittler brought a spiral-bound notebook and a bag of dice, with regular dice and some dice that

went up to 20 sides, to the officers. The discipline procedure involved a dice game “where the

offending child would roll a dice that would correspond to a predetermined punishment, such as

wash the dishes. And then the parents would have their dice, the parent dice. And then they would

roll, and that would act as a multiplier. So basically multiply the quantity or the time frame of


                                                3
No. 52885-1-II


whatever the initial roll was.” VRP (June 28, 2018) at 26. “Corporal punishment” was among the

available consequences. Id.

         Schmittler explained to the officers that the parents had administered “corporal

punishment” in the past, until a parenting plan ordered them to discontinue using physical

corrective measures on their children. Id. at 27. Schmittler claimed that he had not used this form

of punishment on RW during this instance because of the parenting plan provision. Schmittler

initially denied causing any injury to RW, and he informed officers that whatever bruising was

reported to them may have been caused by RW falling from his bunk bed because RW had been

known to fall from his bed.

         Donnelly and Elton then went to Warren’s residence. Once there, the officers spoke with

both Warren and RW and looked at the photographs Warren took and the bruising on RW’s back.

The officers took photos of RW’s back, which showed “[p]urple bruising, spanking his buttocks

up onto his back and lower back.” 1 VRP at 36. The officers transported Warren, RW, and DW

to the hospital for medical evaluation. Additional photos of RW’s bruises were taken at the

hospital. RW was permitted to remain in Warren’s care at that time.

         After the officers left the hospital, they returned to Schmittler and La Fountain’s residence,

this time joined by Sergeant Ryan Heffernan. Prior to entering, one of the officers read the two

parents their Ferrier1 warnings from a card. One officer, Elton, spoke to La Fountain in their

living room, while Donnelly and Heffernan spoke to Schmittler on the front porch.




1
    State v. Ferrier, 136 Wn.2d 103, 960 P.2d 927 (1998).


                                                   4
No. 52885-1-II


          Donnelly informed Schmittler that he returned to the residence because he had seen

“significant bruising” on RW, and he wanted to speak with him further. VRP (June 28, 2018) at

32. Donnelly informed Schmittler of his Miranda2 rights from a card. Schmittler acknowledged

his rights and agreed to speak further with the officers. Although Schmittler initially denied

causing RW’s injuries at all, he eventually admitted that within the last week, he spanked RW

about three times. However, Schmittler maintained that he did not cause the bruising the officers

saw. The officers seized the notebook containing the punishment list and the game dice at the

conclusion of their investigation.

          RW and DW were initially placed in foster care following the incident. On January 18,

2017, RW and DW’s paternal grandparents took custody of the boys. RW and DW’s paternal

grandmother, Elise Gehr, could see that RW was “[v]ery badly bruised” at that time. 1 VRP at

100. The bruising remained until the end of February or early March of that year. RW complained

to his grandmother regarding pain in the bruised area for approximately one month.

          The State initially charged Schmittler with second degree assault of a child with a domestic

violence enhancement.        The information was later amended to include a position of trust

enhancement.3




2
    Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

3
  The State amended the information to include a particularly vulnerable victim enhancement but
later withdrew the special allegation.


                                                   5
No. 52885-1-II


                                       II. CRR 3.5 HEARING

       The trial court held a hearing pursuant to CrR 3.5 to determine whether statements

Schmittler made to police officers were admissible. Donnelly testified consistently with the facts

described above.

       Schmittler also testified during the hearing. He explained that during the first contact with

police, after they told him why they were there, he voluntarily let them into his home. He did not

feel that he was detained and believed that he could speak freely with the officers. It was not until

the second contact, when, Schmittler alleged, he attempted to reenter his home from the front porch

but was told he could not do so, that Schmittler claimed he felt he was not free to terminate the

interaction. Schmittler testified that he felt he had no choice but to answer Donnelly’s questions

because he “just kept repeating over and over that -- that he didn’t believe me and that I was not

going to be allowed to go inside until they got the real story.” VRP (June 28, 2018) at 54. Further,

Schmittler claimed that he was advised of his Miranda rights prior to his first conversation with

the police but not prior to his second conversation with the police. This assertion differed from

Donnelly’s recollection that Schmittler was advised of his rights prior to the second conversation.

Schmittler admitted to recalling his rights from the first interaction earlier that evening while the

second contact was in progress.

       The trial court concluded that Schmittler’s statements to officers during both interactions

were voluntary and admissible. The trial court found that the first interaction was noncustodial

and consensual. The trial court also found that Schmittler was read his Miranda rights prior to the

second contact, and it did not find credible Schmittler’s statement that he was read his Miranda

rights during the first interview. The trial court explained that given the exploratory nature of the


                                                 6
No. 52885-1-II


first interaction, there was no reason for the officers to provide Miranda warnings at that time.

The trial court further found that the officers neither threatened nor coerced Schmittler into

participating and that Schmittler understood his rights but never invoked them.

                                            III. TRIAL

       The case proceeded to trial and the witnesses testified consistently with the facts as

described above. Donnelly testified regarding the “‘punishment game,’” and several pages from

the notebook were admitted into evidence through Elton. 1 VRP at 29. Donnelly also testified

regarding the parenting plan that prohibited corporal punishment with no objection from

Schmittler’s counsel.   Both La Fountain and Warren also testified regarding the corporal

punishment provision of the parenting plan. Schmittler did not object to the parenting plan

provision testimony on either occasion.

       Elton, one of the officers who was present for both contacts with Schmittler and La

Fountain, testified that he learned from Donnelly that RW “had indicated that he had been beaten

like 30 times.” Id. at 115. Schmittler did not object to this testimony. No other witness testified

that Schmittler struck RW 30 times. RW could not specifically remember the amount of times

Schmittler spanked him, however he said it was “[m]aybe more” than 10 times. Id. at 74.

Schmittler admitted to striking RW 3 times. DW stated Schmittler spanked RW 3 times as well;

however, DW did not witness the spanking because Schmittler had closed the door to the bedroom

before punishing RW. DW recalled that he knew RW had been spanked because he heard his

brother screaming for 10 minutes from behind the closed door. DW further stated that his brother

looked “[h]urt” when he came out “[b]ecause [he] saw him crying.” Id. at 92.




                                                7
No. 52885-1-II


        Gehr testified regarding the extent of RW’s injury following the incident. The State asked

Gehr, “[W]hile that bruising was still there, how would it make you feel?” Id. at 103. With no

objection from Schmittler, Gehr responded that she “was very sad for [RW]. I told him -- I’m

sorry.” Id. The State interjected stating, “I didn’t mean to upset you, ma’am. I’m sorry.” Id.

Gehr proceeded to answer that “[i]f [she] could take the hurt away, [she] would. Everything that

he’s gone through.” Id. Schmittler did not object during this exchange.

        Schmittler proposed a jury instruction on the inferior degree offense of third degree assault

of a child. The State admitted to not having fully researched the distinction between the charges

but argued that to give the inferior degree instruction, Schmittler would have to show that he

negligently, rather than intentionally, struck RW and the evidence that he intentionally struck the

child was undisputed. Regarding the mens rea, the State posited that for third degree assault, there

was not a separate mens rea requirement for the harm as opposed to the conduct that causes the

harm.

        Schmittler did not specifically address whether there are two distinct mens rea elements in

third degree assault, but he noted that criminal negligence can also be proven even where the

evidence shows the act was intentional. When asked, Schmittler was unable to refer the trial court

to any cases that supported his assertion.

        The trial court denied the inferior degree offense instruction, ruling that because “[t]he

testimony here doesn’t support that the act was anything but intentional,” the evidence did not

support a finding that Schmittler committed third degree assault to the exclusion of second degree

assault. Id. at 184.




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No. 52885-1-II


        The jury found Schmittler guilty of second degree assault of a child, and it also found the

domestic violence and use of a position of trust aggravators. The trial court entered a 10-year no-

contact order.

        The trial court imposed a 41-month sentence, the high end of the standard range. One

provision within Schmittler’s judgment and sentence provided that Schmittler must “[o]bey all

laws and obey instructions, affirmative conditions, and rules of the court, DOC and [community

corrections officer (CCO)].” Clerk’s Papers (CP) at 117. Schmittler appeals.

                                           DISCUSSION

                           I. INFERIOR DEGREE OFFENSE INSTRUCTION

        Schmittler claims that he was entitled to an inferior degree offense instruction because

there was “at least slight evidence” that he committed only third degree assault of a child based on

criminal negligence as opposed to second degree assault of a child based on recklessness.

Appellant’s Opening Br. at 9. He argues that evidence shows he only negligently inflicted bodily

harm accompanied by substantial pain on RW because the spanking was brief, the bruising did not

develop immediately, and the bruise initially appeared to be only about the size of a half dollar

coin.

        We disagree and hold that the trial court properly denied the inferior degree offense

instruction. We hold that the evidence did not support the inference that Schmittler committed

third degree assault of a child to the exclusion of second degree assault of a child.




                                                  9
No. 52885-1-II


A. LEGAL PRINCIPLES

       Where an individual is charged with an offense that consists of different degrees, the jury

may find the defendant guilty of an inferior degree of the charged offense. RCW 10.61.003. The

party requesting an instruction on an inferior degree offense has the burden of showing that

       “(1) the statutes for both the charged offense and the proposed inferior degree
       offense proscribe but one offense; (2) the information charges an offense that is
       divided into degrees, and the proposed offense is an inferior degree of the charged
       offense; and (3) there is evidence that the defendant committed only the inferior
       offense.”

State v. Fernandez-Medina, 141 Wn.2d 448, 454, 6 P.3d 1150 (2000) (internal quotation marks

omitted) (quoting State v. Peterson, 133 Wn.2d 885, 891, 948 P.2d 381 (1997)).

       Here, the legal component of the test is satisfied because the statutes for both the charged

offense and the proposed inferior degree offense proscribe but one offense, and the charged offense

is divided into degrees, with third degree assault of a child being an inferior degree offense of

second degree assault of a child. See Peterson, 133 Wn.2d at 891. Neither party disputes the legal

component of this test.

       The factual prong is satisfied when “substantial evidence in the record supports a rational

inference that the defendant committed only the lesser included or inferior degree offense to the

exclusion of the greater offense.” Fernandez-Medina, 141 Wn.2d at 461. The evidence must be

enough to “affirmatively establish the defendant’s theory of the case.” Id. at 456. The trial court

is required to consider all evidence presented at trial when deciding whether to provide the

instruction. Id. The evidence is viewed in the light most favorable to the party that requested the

instruction. Id. at 455-56. Where, as here, the trial court’s decision regarding whether to instruct

the jury on a lesser included offense is based on a factual determination, we will review that


                                                10
No. 52885-1-II


decision for an abuse of discretion. State v. Condon, 182 Wn.2d 307, 315-16, 343 P.3d 357

(2015).4

        The second degree assault of a child statute incorporates the definition of second degree

assault under RCW 9A.36.021. RCW 9A.26 A person is guilty of second degree assault when that

person “[i]ntentionally assaults another and thereby recklessly inflicts substantial bodily harm.”

RCW 9A.36.021(1)(a). Second degree assault is thus composed of two discrete acts: one is the

assaultive act and the other is the infliction of substantial bodily harm. State v. McKague, 159 Wn.

App. 489, 509, 246 P.3d 558, aff’d, 172 Wn.2d 802, 262 P.3d 1225 (2011). Each act must be

established by a distinct mental state. Id. The corresponding mental state for the assaultive act is

intent, and the corresponding mental state for infliction of bodily harm is recklessness. McKague,

159 Wn. App. at 509. A person acts recklessly “when he or she knows of and disregards a

substantial risk that a wrongful act may occur and his or her disregard of such substantial risk is a

gross deviation from conduct that a reasonable person would exercise in the same situation.” RCW

9A.08.010(1)(c).

        RCW 9A.36.140(1) provides that a person is guilty of third degree assault of a child if the

person commits assault as defined in either RCW 9A.36.031(1)(d) or (f). RCW 9A.36.031(1)(f)

is relevant to this case and states that a person is guilty of third degree assault if that person, “[w]ith

criminal negligence, causes bodily harm accompanied by substantial pain that extends for a period



4
 Although Condon involved a lesser included offense instruction as opposed to an inferior degree
offense instruction, the analysis differs only with respect to the legal component of the test. 182
Wn.2d at 316; see also Fernandez-Medina, 141 Wn.2d at 455. Therefore, we review the factual
component of the test for abuse of discretion under both circumstances. See Condon, 182 Wn.2d
at 315-16.


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No. 52885-1-II


sufficient to cause considerable suffering.” A person acts with criminal negligence “when he or

she fails to be aware of a substantial risk that a wrongful act may occur,” and the “failure to be

aware of such substantial risk constitutes a gross deviation from the standard of care that a

reasonable person would exercise in the same situation.” RCW 9A.08.010(1)(d).

B. ANALYSIS

       Neither party disputes that Schmittler intentionally spanked RW. However, Schmittler

asserts that because the evidence shows that he negligently, rather than recklessly, caused RW’s

harm, he was entitled to the inferior degree instruction even if he intended the act itself. Schmittler

is mistaken. The evidence that Schmittler relies on in support of his claim tends to establish rather

than negate his recklessness. Even if viewed in a light most favorable to Schmittler, the evidence

would not lead a reasonable jury to find that Schmittler acted with criminal negligence as opposed

to recklessness when he struck RW.

       Schmittler claims that if “‘even the slightest evidence’” supports the inferior degree

offense, the trial court is compelled to so instruct the jury because a defendant has an “absolute”

right to instruct the jury on the defense theory of the case. Appellant’s Opening Br. at 8-9 (quoting

State v. Parker, 102 Wn.2d 161, 166, 683 P.2d 189 (1984)). Schmittler claims the trial court erred

in denying his instruction because the evidence met this minimal standard.

       Schmittler is incorrect. Although the trial court must view the evidence in the light most

favorable to the party requesting the instruction, the instruction may be given only where the

evidence affirmatively establishes the proponent’s theory of the case. Fernandez-Medina, 141

Wn.2d at 456. An inferior degree instruction will not be given if the proponent can only show that

“the jury might disbelieve the evidence pointing to guilt” of the higher degree offense. Id.


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No. 52885-1-II


       Schmittler failed to affirmatively establish his theory of the case that he was only criminally

negligent when he disciplined RW. See id. at 461. To demonstrate criminal negligence, Schmittler

has the burden of identifying evidence that he failed to be aware of a substantial risk that a wrongful

act may occur and that this failure was a gross deviation from the standard of care a reasonable

individual would take under the circumstances. RCW 9A.08.010(1)(d); RCW 9A.36.031(1)(f).

Schmittler cites to the facts that he struck RW 30 times and that DW heard RW screaming from

behind the bedroom door during the incident to support his claim. Even if this evidence is

considered in the light most favorable to Schmittler, it is unclear how it aids Schmittler’s claim

that he was not aware that his actions could cause RW’s substantial injuries. To the contrary, this

evidence tends to prove rather than negate the fact that Schmittler knew he was hurting RW during

the disciplinary episode, but he continued to strike RW numerous times anyway. Schmittler does

not identify any additional evidence that he acted with criminal negligence when he punished RW,

nor does the record support such an inference.

       Schmittler fails to demonstrate that a rational jury would also acquit him of the greater

offense. See Fernandez-Medina, 141 Wn.2d at 456. Schmittler does not deny that he intentionally

struck RW, thus the first component of second degree assault is not in dispute. McKague, 159

Wn. App. at 509. In addition, the evidence demonstrates that Schmittler knew of but disregarded

a risk that RW would be substantially harmed by his actions, and Schmittler’s decision to punish

RW in this manner was a gross deviation from the standard of care that a reasonable person would

exercise under the circumstances. See RCW 9A.08.010(1)(c).

       Schmittler stated that he did not recall precisely how many times he spanked RW, but he

admitted that it was “[a]t least three times.” 1 VRP at 157. RW was screaming while Schmittler


                                                  13
No. 52885-1-II


spanked him. Physical punishment was employed with sufficient frequency in the household to

compel a parenting plan provision that expressly prohibited use of corporal punishment on RW

and DW. Schmittler attempted to use that provision of the parenting plan during the police

investigation to deny that he caused RW’s bruising. After Schmittler eventually admitted to police

that he struck RW, he “broke down” and admitted to being “upset” at RW. Id. at 150.

       In addition, Schmittler knew that RW was “extremely undersized” as compared to other

nine-year-old children to the extent that doctors were concerned about RW’s health. Id. at 41.

Schmittler is about five feet and eight inches tall, and he weighs approximately 270 pounds.

Schmittler therefore knew that he had the ability to seriously injure RW, but he recklessly

disregarded that risk and proceeded to strike RW anyway, resulting in RW’s extensive bruising.

       Even if the evidence is considered in the light most favorable to the proponent of the

instruction, the evidence did not support Schmittler’s theory that he only negligently, rather than

recklessly, caused RW’s harm. See Fernandez-Medina, 141 Wn.2d at 461. Accordingly, the trial

court did not abuse its discretion when it declined to issue a third degree assault instruction.

                             II. INEFFECTIVE ASSISTANCE OF COUNSEL

       Schmittler claims that he was deprived of effective assistance of counsel when his counsel

chose not to object to witness testimony that he claims was inadmissible and prejudicial.

Schmittler asserts that he was prejudiced by defense counsel’s deficient performance when (1)

defense counsel failed to object to Officer Elton’s hearsay within hearsay testimony that he was

informed by Officer Donnelly that RW told him he was “‘beaten like 30 times,’” (2) defense

counsel did not to object to testimony regarding the parenting plan provisions that prohibited




                                                 14
No. 52885-1-II


corporal punishment, and (3) defense counsel failed to object to Gehr’s testimony regarding the

way seeing RW’s bruising made her feel. Appellant’s Opening Br. at 17.

        We hold that the evidence in the record before us is insufficient to allow us to decide

whether counsel’s decision not to object to certain testimony or evidence fell below an objective

standard of reasonableness. Even assuming, arguendo, that defense counsel’s decision not to

object constitutes deficient performance, Schmittler fails to demonstrate that he was prejudiced

when this testimony was admitted. Consequently, Schmittler’s ineffective assistance of counsel

claim fails.

A. LEGAL PRINCIPLES

        The Sixth Amendment to the United States Constitution and article I, section 22 of the

Washington State Constitution guarantee the right to effective assistance of counsel. Strickland v.

Washington, 466 U.S. 668, 685-86, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Jones, 183

Wn.2d 327, 339, 352 P.3d 776 (2015).

        To prevail on an ineffective assistance of counsel claim, Schmittler has the burden of

showing both that (1) his counsel’s representation was deficient because it fell below an objective

standard of reasonableness and (2) that he was prejudiced by this deficient performance. State v.

Linville, 191 Wn.2d 513, 518, 423 P.3d 842 (2018). When an ineffective assistance of counsel

claim is raised in a direct appeal, we will not consider evidence outside of the trial record. State

v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). A defendant has the burden of showing

both deficient performance and prejudice based on the record established in the proceedings below.

Id. at 335, 337. If Schmittler fails to satisfy one prong of this two-part test, we need not consider

the other. State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009).


                                                 15
No. 52885-1-II


       We give deference to counsel’s decision-making and begin our analysis with a strong

presumption that counsel’s performance was reasonable. State v. Grier, 171 Wn.2d 17, 32, 42,

246 P.3d 1260 (2011). To rebut this presumption, the defendant has the burden of demonstrating

an absence of any “‘conceivable legitimate tactic explaining counsel’s performance.’” Id. at 33

(quoting State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004)). This showing must be

made based on the record developed below. Linville, 191 Wn.2d at 525.

       To show prejudice, the defendant must show that “there is a reasonable probability that,

but for counsel’s deficient performance, the outcome of the proceedings would have been

different.” Kyllo, 166 Wn.2d at 862. A reasonable probability is one that is sufficient to undermine

confidence in the trial’s outcome. State v. Estes, 188 Wn.2d 450, 458, 395 P.3d 1045 (2017).

B. DEFICIENT PERFORMANCE

       Here, Schmittler fails to show that his counsel’s conduct fell below an objective standard

of reasonableness. Not only must Schmittler identify, from the record, the reason for counsel’s

decision not to object, but he must also demonstrate that the proffered reasons are neither strategic

nor legitimate. See Linville, 191 Wn.2d at 525-26. And the decision regarding whether and when

to object to trial testimony is a “classic example[] of trial tactics.” State v. Crow, 8 Wn. App. 2d

480, 508, 438 P.3d 541, review denied, 193 Wn.2d 1038 (2019).                 “‘Only in egregious

circumstances, on testimony central to the State’s case, will the failure to object constitute

incompetence of counsel justifying reversal.’” State v. Johnston, 143 Wn. App. 1, 19, 177 P.3d

1127 (2007) (quoting State v. Madison, 53 Wn. App. 754, 763, 770 P.2d 662 (1989)).

       There is no evidence in the record, nor does Schmittler point this court to any evidence in

the record, explaining the reason behind defense counsel’s decision not to object to the contested


                                                 16
No. 52885-1-II


testimony. Therefore, we cannot determine whether counsel’s decisions were the product of

reasonable trial strategy. See Grier, 171 Wn.2d at 32. Given that the decision regarding whether

and when to object inheres in the overall strategy of the trial, we have no basis to conclude that

counsel’s performance was deficient.

C. PREJUDICE

        Even if we were to assume that counsel’s decision not to object lacked any conceivable

legitimate or strategic purpose, Schmittler fails to demonstrate that had his counsel objected during

the testimony he identified as problematic, the outcome of his trial would have been different. See

Kyllo, 166 Wn.2d at 862. Therefore, Schmittler has failed to demonstrate that he suffered prejudice

as a result of his counsel’s performance. See id.

       1.      HEARSAY WITHIN HEARSAY TESTIMONY5

       While Elton described the course of his investigation and provided context for his

conversation with Schmittler and La Fountain that evening, he testified that “Donnelly had told

me that [RW] had indicated he had been beaten like 30 times. That was the number we were

provided.” 1 VRP at 115. Defense counsel did not object to this testimony.

       Schmittler claims that defense counsel’s failure to object was prejudicial because this

testimony involves two layers of hearsay to which no exceptions apply, and counsel’s objection

would have been sustained. Schmittler further claims that this testimony was prejudicial because




5
 Hearsay is an out-of-court statement offered in evidence to prove the truth of the matter asserted.
ER 801(c). Hearsay statements are inadmissible unless an exception or exclusion applies. ER
802. When testimony contains multiple layers of hearsay, each layer must separately conform to
an exception or exclusion to be admissible. ER 805.
                                                 17
No. 52885-1-II


it was the only evidence presented that showed Schmittler struck RW 30 times, and it was used by

the State to prove recklessness.

       Schmittler fails to demonstrate that the outcome of his trial would have differed if the

evidence had not been admitted. Kyllo, 166 Wn.2d at 862. While it is true that Elton was the only

witness who stated that Schmittler “beat[]” RW 30 times, this fact was not critical to the State’s

argument. 1 VRP at 115. Rather, the State argued that the number of times Schmittler spanked

RW is not clear, but the severity of Schmittler’s actions is plainly evident from the extent of the

bruising.

       In closing, the State argued,

       He spanked [RW] 10, 20, 30 times. [RW] doesn’t quite remember two years later just how
       many times. The defendant says at least three times. He doesn’t remember either.
       Probably more.

              But he spanked [RW] enough times and so many times that bruise spread, not just
       on one concentrated area. . . .

               It is spread all the way across his buttocks; below, above, into his lower back. . . .

              So while the family didn’t use that form of punishment, the defendant did. And his
       behavior in spanking [RW] over and over again repeatedly was a gross deviation from the
       conduct that a reasonable person would exercise in the same situation.

2 VRP at 216-17.

       Schmittler testified that he did not recall precisely how many times he spanked RW, but he

admitted that it was “[a]t least three times.” 1 VRP at 157. Although RW could not recall how

many times Schmittler spanked him, when asked whether it was more or less than 10 times, RW

answered that it was “[m]aybe more.” Id. at 74. The State acknowledged this factual discrepancy

in closing, and it did not rely on the hearsay testimony as substantive evidence that Schmittler, in

fact, struck RW 30 times.

                                                 18
No. 52885-1-II


       Instead, the indeterminate number of times Schmittler spanked RW was part of a broader

argument regarding the extent of RW’s bruising. The State introduced evidence regarding RW’s

bruising primarily through photographs of the bruises themselves. Contrary to Schmittler’s

assertion that this testimony was the State’s “strongest evidence” that he acted recklessly, the State

relied on severity of RW’s injury as evidenced by photographs of the bruises to demonstrate

Schmittler’s recklessness. Appellant’s Opening Br. at 19.

       Consequently, even assuming that there was no strategic reason justifying defense

counsel’s decision not to object to this testimony and that the objection to the hearsay within

hearsay statement would have been sustained, Schmittler fails to demonstrate that he was

prejudiced by this testimony.

       2.      PARENTING PLAN TESTIMONY

       Schmittler claims that he was denied effective assistance of counsel because his counsel

did not object to testimony pertaining to the parenting plan provision that prohibited use of corporal

punishment. Schmittler asserts that this testimony was irrelevant under ER 402, or, if relevant, an

objection would have been sustained under ER 403 because any probative value of this evidence

was substantially outweighed by the danger of unfair prejudice and confusion of the issues.

Schmittler argues that this evidence was prejudicial under ER 403 because the jurors may have

believed that his violation of the court order was sufficient to prove guilt and because the parenting

plan provision “painted him in a negative light.” Appellant’s Opening Br. at 19.

       Schmittler does not provide a separate argument that this evidence was prejudicial with

respect to the outcome of his trial, as he must in order to demonstrate that he received ineffective

assistance of counsel. Linville, 191 Wn.2d at 518. Schmittler’s claim fails even if we consider


                                                 19
No. 52885-1-II


Schmittler’s assertion of prejudice pursuant to ER 403 as a substitute for prejudice in his

ineffective assistance of counsel claim. There is no evidence in the record that the jury was

confused in the manner Schmittler suggests. It is also unlikely, given the strength and totality of

the evidence pointing to Schmittler’s guilt, that the outcome of the trial would probably have been

different absent the introduction of the parenting plan evidence. Schmittler has therefore failed to

satisfy his burden of demonstrating that he suffered prejudice based on the trial court record.

McFarland, 127 Wn.2d at 337.

       3.      GEHR’S TESTIMONY

       Schmittler claims that he was prejudiced when his counsel did not object to Gehr’s

testimony regarding how she felt upon seeing RW’s bruises. We disagree because there is no

evidence in the record that this testimony had any effect on the outcome of the trial.

       The State asked Gehr, RW and DW’s paternal grandmother, how seeing her grandson’s

bruises while he was in her care made her feel. Gehr responded by stating that she was “very sad

for [RW]” and that “if [she] could take the hurt away, [she] would.” 1 VRP at 103. Defense

counsel did not object to this testimony.

       Schmittler does not cite to any evidence in the record demonstrating that Gehr’s testimony

impacted the outcome of his trial. Schmittler’s assertion that the State’s question improperly

appealed to the jury’s passion and prejudice does not demonstrate that the jury was actually

prejudiced against him upon hearing this testimony. Consequently, even assuming, without

deciding, that the objection would have been sustained, Schmittler fails to meet his burden of

demonstrating prejudice based on the trial court record. McFarland, 127 Wn.2d at 337.




                                                20
No. 52885-1-II


                     III. DELEGATION OF COMMUNITY CUSTODY CONDITIONS

       Schmittler claims that the trial court violated the separation of powers doctrine because it

abdicated its sentencing authority when it required that he follow all “‘instructions, affirmative

conditions, and rules of. . . DOC and CCO’” as part of his judgment and sentence. Appellant’s

Opening Br. at 22 (quoting CP at 117). We hold that DOC is vested with authority to establish

additional community custody conditions based upon the defendant’s risk to community safety

and the trial court did not improperly delegate its sentencing authority.

       State v. McWilliams, 177 Wn. App. 139, 311 P.3d 584 (2013), is on point. The defendant

challenged the imposition of special community custody conditions designated as “conditions ‘per

DOC; CCO.’” Id. at 146. The defendant similarly claimed that the trial court improperly delegated

its sentencing authority to the DOC. See id. at 153. This court held that such delegation was not

improper. Id. at 154. This court reasoned that although the judiciary is vested with the authority

to determine guilt and impose sentences, the execution of that sentence is administrative and

“‘properly exercised by an administrative body, according to the manner prescribed by the

Legislature.’” Id. (internal quotation marks omitted) (quoting State v. Sansone, 127 Wn. App. 630,

642, 111 P.3d 1251 (2005)).

       DOC is authorized under RCW 9.94A.704(2)(a) to “establish and modify additional

conditions of community custody based upon the risk to community safety.” The community

custody condition at issue here, like the community custody at issue in McWilliams, is authorized

by this statute because it refers broadly to DOC’s authority to set the specifics of community

custody conditions. It does not improperly delegate authority to DOC to define the parameters of




                                                 21
No. 52885-1-II


a vague condition created by the court at sentencing. See id. The community custody condition

was proper.

                            IV. STATEMENT OF ADDITIONAL GROUNDS

       In his SAG, Schmittler claims that (1) he was denied his rights to due process under the

Fourteenth Amendment because he was not indicted by a grand jury, (2) he did not consent to the

officers searching his home during either contact, (3) the court did not have authority to enter a

no-contact order before he was found guilty of the offense, and (4) the prosecutor engaged in

conduct that violated his rights to due process during plea bargaining.

       We hold that (1) Schmittler’s due process rights were not violated when he was charged

by an information rather than indicted by a grand jury, (2) the totality of the circumstances

demonstrates that Schmittler’s consent to the search was voluntarily given, (3) the trial court had

authority to issue a no-contact order, and (4) the prosecutor did not violate Schmittler’s rights to

due process during plea bargaining.

A. GRAND JURY INDICTMENT

       Schmittler asserts that his due process rights were violated because he was not indicted by

a grand jury as required by the Fifth Amendment to the United States Constitution. However, the

State is not required to indict Schmittler by a grand jury to protect his due process rights.

       The grand jury provision of the Fifth Amendment does not apply to state prosecutions.

State v. Ng, 104 Wn.2d 763, 774-75, 713 P.2d 63 (1985). Article I, section 25, of the Washington

Constitution provides that the State may prosecute an individual by either an information or

indictment. Our Supreme Court has rejected the premise that a grand jury indictment is necessary

to protect a defendant’s due process rights. Id.


                                                   22
No. 52885-1-II


B. VOLUNTARY WAIVER OF RIGHTS

       Schmittler claims that he did not consent to the officers’ entry and search of his home

because he was under duress and feared that denying them entry would constitute obstruction of

justice. Schmittler does not identify which evidence he claims should have been suppressed.

Rather, he broadly complains that his constitutional rights were violated and that inadmissible

evidence was collected. The record suggests that the spiral-bound notebook containing the

“‘punishment game’” and the dice from the punishment game were the items collected from the

house. 1 VRP at 29.

       There was no motion to suppress filed below, and while defense counsel initially objected

when the State sought to admit the entire notebook containing the “‘punishment book,’” defense

counsel did not object when the State narrowed down the number of pages to be admitted from the

notebook. Id. at 122. Under RAP 10.10, the appellate court is not obligated to search the record

in support of claims made in a defendant’s SAG. Based on the evidence contained in the record,

there is nothing to suggest that Schmittler’s consent was not freely and voluntarily given on both

occasions, nor to suggest that all evidence acquired as part of that search and seizure was not

properly admitted.

       A warrantless search and seizure is per se unreasonable unless an exception to the warrant

requirement applies. State v. Garvin, 166 Wn.2d 242, 249, 207 P.3d 1266 (2009). The State bears

the burden of establishing an exception by clear and convincing evidence. Id. at 250.

       An individual’s consent to a search will excuse the warrant requirement.          State v.

Thompson, 151 Wn.2d 793, 803, 92 P.3d 228 (2004). The State must demonstrate that the consent

was validly given by showing that (1) the consent was voluntary, (2) the person had the authority


                                               23
No. 52885-1-II


to consent, and (3) the search did not exceed the scope of the consent. Id. Schmittler challenges

only the voluntariness of his consent, and he claims that it was the product of duress and coercion.

        Whether consent was voluntarily given is a question of fact to be determined by the totality

of the circumstances. State v. Russell, 180 Wn.2d 860, 871, 330 P.3d 151 (2014). Relevant factors

include whether Miranda warnings were given, the defendant’s level of education and intelligence,

and whether police advised the defendant of the right to refuse consent. Id. at 871-72. No single

factor is dispositive. Id. at 872.

        Schmittler claims that he felt coerced into consenting to the search during both contacts

with officers because he was fearful that denying entry would constitute obstruction of justice.

However, the record directly contradicts his assertions.

        Schmittler testified during the CrR 3.5 hearing regarding the admissibility of statements he

made to police. During that hearing, Schmittler admitted that he voluntarily allowed police to

enter his home when they first contacted him. He also testified that he did not believe he was

detained and that he believed he could speak freely with the officers. In addition, during the first

contact with police, Schmittler spontaneously informed officers about the “‘punishment game’”

and willingly produced the notebook and game die for their inspection. 1 VRP at 29.

        During the second contact, police officers advised Schmittler of his Ferrier rights before

they entered his home and of his Miranda rights before they spoke with him. On both occasions,

Schmittler indicated that he understood his rights and waived them. There is no evidence in the

record that the officers made express or implied threats in order to force Schmittler’s consent to a

search of his home. The “‘punishment game’” evidence was seized following the second contact.




                                                24
No. 52885-1-II


Id. at 29. Consequently, nothing in the record demonstrates that Schmittler’s consent was not

voluntarily given.

C. NO-CONTACT ORDER

       Schmittler claims that the trial court violated his right to the presumption of innocence

when it issued the no-contact order pretrial because he had not yet been convicted of assault at that

time. Schmittler asserts that the trial court had discretion to only order him not to harass or

intimidate the victim.

       This issue is moot. An issue is moot if this court can no longer provide effective relief.

State v. Cruz, 189 Wn.2d 588, 597, 404 P.3d 70 (2017). Schmittler challenges the pretrial no-

contact order, which expired at sentencing and was replaced by a new, 10-year no-contact order.

There is no effective relief that we could provide for the now expired order.

       We may review a moot issue if that issue is of continuing and substantial public interest.

Id. Schmittler’s claim is more properly considered a challenge to the constitutionality of former

RCW 10.99.040(2) and (3) (2015), which plainly allow a trial court to impose a preconviction no-

contact order.

       Schmittler has not asked this court to review this claim as one of continuing and substantial

public interest. We therefore need not evaluate whether the issue nevertheless merits review under

this exception.   See RAP 10.10(c) (providing that “the appellate court will not consider a

defendant’s statement of additional grounds for review if it does not inform the court of the nature

and occurrence of alleged errors”). Moreover, our Supreme Court has held that trial courts are

authorized to enter no-contact orders at various stages in a domestic violence prosecution,




                                                 25
No. 52885-1-II


including before trial and conviction, under former RCW 10.99.040(2) and (3). State v. Shultz,

146 Wn.2d 540, 544, 48 P.3d 301 (2002).

D. PLEA BARGAINING

       Schmittler claims that the prosecutor engaged in witness intimidation, witness tampering,

coercion, and obstruction of justice when she informed him that he could either accept the plea

deal she offered or face a higher sentence by going to trial. We disagree with Schmittler’s claim

because a prosecutor has discretion when deciding whether to enter into a plea bargain.

       Prosecutors are vested with broad discretion when determining whether to charge a crime

or enter into a plea bargain. State v. Moen, 150 Wn.2d 221, 227, 76 P.3d 721 (2003). However,

this discretion is not “‘unfettered,’” and prosecutors may not exercise this discretion in a manner

that violates due process. Id. (quoting Wayte v. United States, 470 U.S. 598, 608, 105 S. Ct. 495,

30 L. Ed. 2d 427 (1971)). Schmittler effectively claims that because the prosecutor offered him

one plea deal that he did not wish to accept, and she explained that he faced a more severe sentence

by going to trial, she committed witness intimidation, witness tampering, coercion, and obstruction

of justice.   Schmittler’s claims that these measures constitute witness tampering, witness

intimidation, coercion, and obstruction of justice are unfounded, and the prosecutor was well

within her discretion not to continue bargaining with Schmittler after he declined her offer. See

id. Moreover, Schmittler does not show that he suffered prejudice from the prosecutor’s extension

of the pretrial offer, and he does not explain what remedy he wants this court to provide him.

                                         CONCLUSION

       The trial court did not err when it denied Schmittler’s request for an inferior degree offense

instruction because the evidence did not demonstrate that he committed third degree assault of a


                                                26
No. 52885-1-II


child to the exclusion of second degree assault of a child. Schmittler has not shown that he was

deprived of his right to effective assistance of counsel because he fails to show that his counsel’s

decisions were not the product of legitimate trial strategy. Moreover, even if we assume that

counsel’s decision not to object was deficient performance, Schmittler has failed to demonstrate

that he suffered prejudice. Schmittler’s judgment and sentence was valid because the superior

court did not unlawfully delegate its sentencing authority to the DOC. In addition, none of

Schmittler’s SAG claims warrant reversal of his conviction.

        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.



                                                     CRUSER, J.
 We concur:



 MAXA, P.J.




 GLASGOW, J.




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