                                                                                                   Filed
                                                                                             Washington State
                                                                                             Court of Appeals
                                                                                              Division Two

                                                                                             October 13, 2015
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                           DIVISION II
 In the Matter of the                                                   No. 44282-5-II
 Personal Restraint Petition of

 STEVEN CRAIG CEARLEY,

                                                                 UNPUBLISHED OPINION

                                  Petitioner.

        WORSWICK, J. — A jury found Steven Cearley guilty of five counts of first degree child

rape and one count of first degree child molestation, and further found the aggravating factor that

Cearley had used his position of trust to commit the offenses. The court imposed an exceptional

sentence based on both the position of trust sentencing aggravator and Cearley’s high offender

score. In this personal restraint petition, Cearley argues that (1) a victim advocate coached the

victim during her testimony; (2) sealed jury questionnaires and sidebar conferences violated his

right to a public trial; (3) sidebar conferences violated his right to be present; (4) the trial court

erred by failing to conduct a hearing when it learned that victim advocates spoke to jurors; (5)

two jurors slept during trial; (6) the trial court wrongly instructed the jury on the position of trust

aggravator; (7) the trial court imposed a mandatory minimum sentence based on Cearley’s high

offender score, which was not found by the jury; (8) Cearley received the ineffective assistance

of counsel for several reasons; and (9) the convictions should be overturned due to cumulative

error. Because Cearley fails to establish either constitutional error that resulted in actual and

substantial prejudice or nonconstitutional error that resulted in a complete miscarriage of justice,

we deny his petition.
No. 44282-5-II


                                                FACTS

          ADM1 lived with her aunt and Cearley. Cearley molested and raped ADM several times

over a two-year period when ADM was approximately seven to nine years old.

          ADM told some of her friends that she was experiencing sexual abuse. At first she did

not say who abused her, but she eventually disclosed that Cearley was the abuser. ADM’s

school principal, a Child Protective Services agent, and Kris Camenzind, a Crisis Support

Network employee, initiated an interview with ADM. At first, ADM denied that Cearley abused

her. But as the interview progressed, ADM disclosed that Cearley had sexually abused her and

had threatened her not to tell anyone.

          During an ensuing search of Cearley’s residence, police found physical evidence that

Cearley sexually abused ADM, namely Cearley’s semen inside the crotch of ADM’s jeans. In

subsequent interviews, ADM continued to state that Cearley sexually abused her. She described

several instances of such abuse.

          The State charged Cearley with six counts of first degree child rape2 and one count of

first degree child molestation.3 For each count of child rape, the State added the aggravating

factor that Cearley used a position of trust to accomplish the crime.4 The case proceeded to a

jury trial.




1
    For purposes of confidentiality, we use the minor victim’s initials.
2
    RCW 9A.44.073.
3
    RCW 9A.44.083.
4
    RCW 9.94A.535(3)(n).


                                                   2
No. 44282-5-II


       The parties used a jury questionnaire as part of jury selection. The questionnaire was

labeled “confidential” and it specified that it would “be part of the sealed Court file and will not

be available for inspection publicly or privately” absent a court order to unseal it. Personal

Restraint Petition (PRP) (Appendix B). During trial, the trial court conducted multiple sidebar

conferences.

       The trial court allowed several victim advocates to attend trial. The primary victim

advocate was Camenzind, the employee from the Crisis Support Network who had attended

ADM’s initial interview. The trial court allowed Camenzind to sit in the front row, but

admonished the prosecutor to warn Camenzind not to use facial gestures to influence ADM’s

testimony. Cearley alleges that, despite this admonition, ADM “kept her eyes right on

[Camenzind] the whole time” during her testimony, and that ADM appeared to react to the

victim advocate’s behavior “[a] couple of times.” PRP (Appendix C). He alleges that when

ADM hesitated, she “would look at Ms. Camenzind who would nod at her. When she nodded,

[ADM] would continue with her answer. When [Camenzind] looked away, [ADM] would stop

or change the direction of her answer.” PRP (Appendix C). Cearley does not say during which

portions of ADM’s testimony this behavior occurred.

       Cearley also alleges that ADM held a toy in the court hallway “surrounded by her

advocates” during a break in her testimony. PRP (Appendix C). He alleges that many advocates

were “surrounding [ADM] and making her feel better outside of the courtroom.” PRP

(Appendix C). Cearley suggests that allowing ADM to hold a toy and talking to her during

breaks were “subtle methods of attempting to influence her testimony.” PRP at 10. He

speculates that Camenzind may have “spoke[n] to the witness during her break about her



                                                  3
No. 44282-5-II


testimony” or assured her that she “was doing ‘good’ or that [the victim advocates] were ‘proud’

of her.” PRP at 10.

       Cearley also alleges that he saw two jurors talking with a victim advocate during a break

in the trial and that he photographed this improper contact on his phone. Without explaining

what he told the judge about this contact, Cearley alleges that the judge “got upset and told

[Cearley] to delete [the photo] during the break.” PRP (Appendix C). Cearley states that he

alerted trial counsel to the issue, but that trial counsel declined to act. Cearley’s trial counsel

recalls that “there was an issue at some point and Mr. Cearley was told to delete a photograph he

had taken outside of the court room.” PRP (Addendum to Appendix). He states that he does not

“recall being shown the photograph and [he has] a vague memory of this issue.” PRP

(Addendum to Appendix).

       Cearley further claims that his trial counsel “kept his shoulder turned against” Cearley

during trial and would not speak to him in front of the jury. PRP (Appendix C). When Cearley

asked questions, his counsel was “very short with” him or “would not answer [his] questions.”

PRP (Appendix C). But Cearley acknowledges that “[d]uring breaks [his counsel] was nicer.”

PRP (Appendix C). Cearley asked his trial counsel about this behavior, and his trial counsel told

him “not to pay any attention to how he was acting because it was just ‘part of the plan.’” PRP

(Appendix C). Finally, Cearley alleges that two jurors slept on a regular basis through material

portions of trial. He identifies the two jurors generally by approximate age and gender, but he

does not state when or for how long these jurors slept.

       The trial court instructed the jury on the abuse of trust aggravating factor for first degree

child rape. Jury instruction 28 read:



                                                   4
No. 44282-5-II


       A defendant uses a position of trust to facilitate a crime when the defendant gains
       access to the victim of the offense because of the trust relationship. In determining
       whether there was a position of trust, you should consider the length of the
       relationship between the defendant and the victim, the nature of the defendant’s
       relationship to the victim, and the vulnerability of the victim because of age or other
       circumstance. There need not be a personal relationship of trust between the
       defendant and the victim. It is sufficient if a relationship of trust existed between
       the defendant and someone who entrusted the victim to the defendant’s care.

PRP at 40.

       The jury found Cearley guilty of five counts of child rape and one count of child

molestation. The jury also found Cearley used a position of trust to facilitate the child rape

convictions. Accordingly, the trial court sentenced Cearley to exceptional sentences, based both

on the position of trust aggravator and on Cearley’s high offender score. In imposing the

exceptional sentence, the trial court entered findings of fact and conclusions of law stating that

an exceptional sentence was justified based both on the high offender score under RCW

9.94A.535(2)(c), and on the position of trust aggravating factor found by the jury. The trial court

also stated that both of these grounds, “taken together or considered individually, constitute

sufficient cause to impose the exceptional sentence. This court would impose the same sentence

if only one of the grounds . . . is valid.” PRP (Appendix A).

       Cearley appealed to this court, and we affirmed his convictions. This personal restraint

petition timely followed. In his petition, Cearley provides detailed psychological evaluations of

ADM, showing that she struggled with depression and other mental health issues around the time

of the abuse. He also provides academic literature on appropriate protocols for interviewing

children.




                                                 5
No. 44282-5-II


                                            ANALYSIS

                                        I. LEGAL PRINCIPLES

       To be entitled to relief, a personal restraint petitioner must establish by a preponderance

of the evidence either constitutional error that resulted in actual and substantial prejudice or

nonconstitutional error that resulted in a complete miscarriage of justice. In re Pers. Restraint of

Woods, 154 Wn.2d 400, 409, 114 P.3d 607 (2005); In re Pers. Restraint of Borrero, 161 Wn.2d

532, 536, 167 P.3d 1106 (2007). The petitioner must support his claims of error with a statement

of facts on which his claim of unlawful restraint is based and the evidence available to support

his factual allegations; he cannot rely solely on conclusory allegations. RAP 16.7(a)(2)(i); In re

Pers. Restraint of Williams, 111 Wn.2d 353, 365, 759 P.2d 436 (1988); see also In re Pers.

Restraint of Cook, 114 Wn.2d 802, 813-14, 792 P.2d 506 (1990).

       The petitioner may support his allegations with the trial court record, affidavits, or other

forms of corroboration. In re Pers. Restraint of Rice, 118 Wn.2d 876, 886, 828 P.2d 1086

(1992). These corroborating sources must show that admissible evidence will establish the

petitioner’s factual allegations. Rice, 118 Wn.2d at 886. It is insufficient for a petitioner to rely

on mere speculation, conjecture, or inadmissible hearsay. Rice, 118 Wn.2d at 886.

       We deny a personal restraint petition if the petitioner fails to make a prima facie showing

of either actual and substantial prejudice or a fundamental defect. In re Pers. Restraint of Yates,

177 Wn.2d 1, 17-18, 296 P.3d 872 (2013). We remand for a reference hearing if the petitioner

makes such a showing, but the record is not sufficient to determine the merits. Yates, 177 Wn.2d

at 17-18. We, however, grant the petition if we are convinced that the petitioner has established




                                                  6
No. 44282-5-II


actual and substantial prejudice or a fundamental defect by a preponderance of the evidence.

Yates, 177 Wn.2d at 17-18.

                                        II. WITNESS COACHING

        Cearley argues that his right to a fair trial was violated when a victim advocate

“‘coached’” ADM during her testimony. PRP at 6. We disagree because Cearley does not

establish that this allegation, even if true, resulted in actual and substantial prejudice.

        Violent and sex crime victims have the right to have a victim advocate present during any

interview by defense or prosecution. RCW 7.69.030(10). Child victims have a statutory right to

have an advocate present in court “while the child testifies in order to provide emotional support

to the child.” RCW 7.69A.030(8).

        Cearley alleges that Camenzind subtly influenced ADM’s testimony “[a] couple of

times” through facial gestures. PRP (Appendix C). Cearley also speculates, without factual

support, that the victim advocate may have verbally or otherwise encouraged ADM in her

testimony during breaks in the trial.

        Even accepting Cearley’s facts as true, his claim fails because he does not demonstrate

that Camenzind’s behavior deprived him of his right to a fair trial and caused him actual and

substantial prejudice. To prevail on the constitutional claim that Camenzind’s behavior violated

Cearley’s right to a fair trial, Cearley must make a prima facie showing of actual and substantial

prejudice resulting from the violation of this constitutional right. Yates, 177 Wn.2d at 17-18.

But Cearley does not say at what stage of ADM’s testimony any of the alleged gestures occurred,

nor does he say at what stage of trial he saw ADM talking with victim advocates during breaks in

her testimony. Thus, he cannot show any prejudice because he cannot show what questions or



                                                   7
No. 44282-5-II


answers may have been altered by coaching. In addition, physical evidence supported ADM’s

testimony. His claim fails.

                                         III. PUBLIC TRIAL

       Cearley argues that his right to a public trial was violated in two ways: through a sealed

juror questionnaire and through several sidebar conferences. We disagree, because Cearley

neither argues nor demonstrates that any court closure caused him actual and substantial

prejudice.

       Defendants have a constitutional right to a public trial. WASH. CONST. art. I, § 22.

Unless a court first conducts a hearing under State v. Bone-Club, 128 Wn.2d 254, 258-59, 906

P.2d 325 (1995), a courtroom closure constitutes structural error and requires reversal on direct

appeal. State v. Paumier, 176 Wn.2d 29, 35, 288 P.3d 1126 (2012). But to prevail on a public

trial claim, a personal restraint petitioner must show actual and substantial prejudice resulting

from a violation of the public trial right. In re Pers. Restraint of Coggin, 182 Wn.2d 115, 122,

340 P.3d 810 (2014) (plurality opinion).

       Even assuming that any courtroom closures occurred, Cearley neither argues nor

demonstrates that any such closure caused him actual and substantial prejudice. Instead, he

argues that these public trial violations are structural errors, requiring automatic reversal and a

new trial. But our Supreme Court rejected this argument in Coggin, 182 Wn.2d at 122 (plurality

opinion), and In re Pers. Restraint of Speight, 182 Wn.2d 103, 107, 340 P.3d 207 (2014)

(plurality opinion). Thus, even if the juror questionnaires or sidebars violated Cearley’s right to

a public trial, he does not make the requisite showing of prejudice to prevail in a personal

restraint petition. Coggin, 182 Wn.2d at 122 (plurality opinion). His claim fails.



                                                  8
No. 44282-5-II


                                     IV. RIGHT TO BE PRESENT

        Cearley argues that his right to be present was violated during various sidebars. We

disagree.

        A defendant has a right to be present “‘at any stage of the criminal proceeding that is

critical to its outcome if his presence would contribute to the fairness of the procedure.’” State v.

Love, 183 Wn.2d 598, 608, 354 P.3d 841 (2015) (quoting Kentucky v. Stincer, 482 U.S. 730,

745, 107 S. Ct. 2658, 96 L. Ed. 2d 631 (1987)). Here, Cearley does not say at what stage of trial

the sidebars occurred. Thus, he does not show that any sidebars occurred when he had a right to

be present—in other words, “at any stage of the criminal proceeding that is critical to its

outcome.” Love, 183 Wn.2d at 608.

        Because Cearley fails to establish that he had the right to be present at the sidebars, his

claim fails.

                                 V. COMMUNICATION WITH JURORS

        Cearley argues that the trial court erred by failing to conduct a hearing when it learned

that victim advocates spoke to jurors. We disagree. Assuming arguendo that the alleged

improper jury contact took place and that the trial court responded as Cearley alleges it did,

Cearley’s claim fails because he cannot show prejudice.

        In a personal restraint petition, the petitioner must show by a preponderance of the

evidence that prejudice resulted from unauthorized jury communication. Woods, 154 Wn.2d at

414. Cearley misapprehends his burden, and urges us to provide him a hearing at which he will

have the opportunity to discover whether the juror communication prejudiced him. But Cearley

is entitled to a reference hearing only if he makes a prima facie showing in his petition of actual



                                                  9
No. 44282-5-II


and substantial prejudice resulting from a constitutional violation. Yates, 177 Wn.2d at 17-18.

He does not do so. And under Woods, he must show prejudice by a preponderance of the

evidence, which he fails to do. 154 Wn.2d at 414. He merely states that “[a] couple of the jurors

. . . talked with one of the advocates” outside the courtroom. PRP (Appendix C). He does not

say how long the contact lasted nor what was discussed. The advocate was not a witness. These

facts are insufficient to show that this contact prejudiced Cearley’s trial. Thus, he is entitled

neither to relief nor to an evidentiary hearing.

                                        VI. SLEEPING JURORS

        Cearley argues that his right to a fair trial was violated because two jurors slept through a

“significant portion of the trial.” PRP at 35. We disagree because Cearley fails to show actual

and substantial prejudice.

        Cearley’s declaration alleges that two jurors slept during his trial: an “older white male in

his mid 50’s” who “sat in the back row in the right corner,” and “a white male in his mid 40’s”

who “was in the front left corner.” PRP (Appendix C). Cearley does not say during what parts

of trial these jurors slept, nor for how long.

        Cearley argues that the two jurors’ sleeping deprived him of his Sixth Amendment right

to a trial by a fair and impartial jury. Cearley concedes that a single sleeping juror does not per

se deprive a defendant of a fair trial. PRP at 37 (citing United States v. Springfield, 829 F.2d 860

(9th Cir. 1987)). Assuming these facts are true, Cearley’s claim fails because he shows neither

actual and substantial prejudice nor a complete miscarriage of justice resulting from these jurors’

sleeping. His declaration does not establish what portions of trial the jurors missed, nor how

their sleeping prejudiced him. Thus, he fails to carry his burden.



                                                   10
No. 44282-5-II


                            VII. AGGRAVATING SENTENCING FACTORS

       Cearley argues that the trial court erred by imposing an exceptional sentence. He

contends that the jury’s finding that he violated a position of trust is invalid because the jury

instruction was erroneous and that the trial court violated his federal and state rights to a jury

trial by imposing a mandatory minimum sentence based on facts not found by the jury—namely,

his high offender score. Because the trial court found that both of these grounds, “taken together

or considered individually,” constituted sufficient cause to impose the exceptional sentence, and

because the trial court stated that it would impose the same sentence if only one of the grounds

was valid, Cearley must demonstrate that both aggravating circumstances are invalid to obtain

relief from his exceptional sentence. We hold that the jury instruction was correct and that

Cearley was not entitled to a jury determination of his high offender score. Therefore, the trial

court did not err in sentencing Cearley.

A.     Position of Trust Instruction

       Cearley argues that the trial court incorrectly instructed the jury on the “position of trust”

aggravating factor. PRP at 39. He argues that the instruction was erroneous because it did not

require the jury to find a “nexus” between the position of trust and the crime, and because it

defined “position of trust” in an overly inclusive manner. PRP at 39. We disagree.

       We review alleged errors of law in jury instructions de novo. State v. Barnes, 153 Wn.2d

378, 382, 103 P.3d 1219 (2005). Jury instructions are proper when they allow each party to

argue its theory of the case, they do not mislead the jury, and they inform the jury of the

applicable law. Barnes, 153 Wn.2d at 382; State v. McCreven, 170 Wn. App. 444, 461-62, 284

P.3d 793 (2012). A jury instruction “‘must make the relevant legal standard manifestly apparent



                                                  11
No. 44282-5-II


to the average juror.’” McCreven, 170 Wn. App. at 462 (internal quotation marks omitted)

(quoting State v. LeFaber, 128 Wn.2d 896, 900, 913 P.2d 369 (1996)). Even if a personal

restraint petitioner establishes that jury instructions were erroneous, he must also demonstrate

that the error caused actual and substantial prejudice. In re Pers. Restraint of Brockie, 178

Wn.2d 532, 539, 309 P.3d 498 (2013).

       Here, the challenged instruction follows Washington Pattern Jury Instruction (WPIC)

300.23 verbatim.5 In relevant part, it provides: “A defendant uses a position of trust to facilitate

a crime when . . . .” PRP at 40 (emphasis added). Further, it instructs the jury that “[t]here need

not be a personal relationship of trust between the defendant and the victim. It is sufficient if a

relationship of trust existed between the defendant and someone who entrusted the victim to the

defendant’s care.” PRP at 40. The statute authorizing this aggravator is RCW 9.94A.535(3)(n),

which reads in its entirety: “The defendant used his or her position of trust, confidence, or

fiduciary responsibility to facilitate the commission of the current offense.” (Emphasis added).

       Cearley does not show that the instructions failed to make the relevant legal standard

manifestly apparent to the average juror. McCreven, 170 Wn. App. at 462. First, the instruction

properly articulates the nexus between the position of trust and the crime. Both the instruction

and the statute contemplate that the defendant “use[]” a position of trust to facilitate a crime.

Compare PRP at 40, with RCW 9.94A.535(3)(n). Thus, the instruction makes the legal standard

apparent—that is, that the defendant must use the position of trust to facilitate the crime.




5
  11A WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 300.23,
at 728 (3d ed. 2008).



                                                 12
No. 44282-5-II


        Second, Cearley fails to show that the relevant legal standard requires the prosecution to

prove that the defendant “personally be in a position of trust.” PRP at 41. Cearley cites no

authority for the proposition that the statute has such a requirement, and there is no such

requirement in the statute’s plain language. See RCW 9.94A.535(3)(n). Instead, the statute

merely requires the defendant to “use[] his or her position of trust . . . to facilitate” the crime.

RCW 9.94A.535(3)(n). The statute does not require the defendant to be in a position of trust

with the victim personally. Thus, this claim fails. Cearley fails to show that the challenged

instruction was improper, or that any errors in it actually and substantially prejudiced him.

Brockie, 178 Wn.2d at 539; McCreven, 170 Wn. App. at 461-62.

B.      Offender Score

        Cearley argues that the trial court violated his federal and state rights to a jury trial by

imposing a mandatory minimum sentence under RCW 9.94A.535(2)(c), which provides that a

judge, not a jury, determines whether a high offender score results in crimes going unpunished.

We disagree.

        1. United States Constitution — Sixth Amendment

        Cearley argues that the judicial imposition of an exceptional sentence based on his high

offender score violates his Sixth Amendment right to a jury trial. We disagree.

        Our Supreme Court has already considered and rejected Cearley’s argument. State v.

Alvarado, 164 Wn.2d 556, 566-67, 192 P.3d 345 (2008). Here, as in Alvarado, the trial court

imposed an exceptional sentence under RCW 9.94A.535(2)(c).6 “[T]he only factors the trial


6
  “The trial court may impose an aggravated exceptional sentence without a finding of fact by a
jury [where t]he defendant has committed multiple current offenses and the defendant’s high



                                                   13
No. 44282-5-II


court relies upon in imposing an exceptional sentence under RCW 9.94A.535(2)(c) are based on

criminal history and the jury’s verdict on the current convictions[, which b]oth fall under the

Blakely[7] prior convictions exception, as no judicial fact finding is involved.” Alvarado, 164

Wn.2d at 566-67 (citation omitted). Thus, because the trial court did not find any facts when it

imposed an exceptional sentence based on Cearley’s high offender score, his claim fails.

         2. Washington State Constitution — Article I, Section 22

         Cearley also argues that, even if the judicial imposition of an exceptional sentence based

on a high offender score does not violate his federal constitutional rights, it violates his state

constitutional rights. But our Supreme Court has already rejected this argument. State v. Smith,

150 Wn.2d 135, 156, 75 P.3d 934 (2003). Our Supreme Court held that the right to a jury trial

under our State Constitution does not extend to proving the existence of a prior conviction.

Smith, 150 Wn.2d at 156. By the same logic, the right to a jury trial does not extend to proving

the existence of current convictions for purposes of imposing an exceptional sentence based on a

high offender score. Cearley’s claim fails.

                            VIII. INEFFECTIVE ASSISTANCE OF COUNSEL

         Cearley raises multiple ineffective assistance of counsel arguments. For the reasons we

discuss below, we hold that he fails to present any meritorious claims of ineffective assistance of

counsel.




offender score results in some of the current offenses going unpunished.” RCW 9.94A.535(2),
(2)(c).
7
    Blakely v. Washington, 542 U.S. 296, 302, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).


                                                  14
No. 44282-5-II


A.     Standard of Review

       To prevail on an ineffective assistance of counsel claim, Cearley must show that defense

counsel’s performance was deficient and that Cearley was prejudiced by the deficient

performance. In re Pers. Restraint of Crace, 174 Wn.2d 835, 840, 280 P.3d 1102 (2012) (citing

Strickland v. Washington, 466 U.S. 668, 700, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). A

petitioner demonstrates deficient performance by showing that defense counsel’s conduct fell

below an objective standard of reasonableness. Rice, 118 Wn.2d at 888. “In this regard, the

court must make every effort to eliminate the distorting effects of hindsight and must strongly

presume that counsel’s conduct constituted sound trial strategy.” Rice, 118 Wn.2d at 888-89. In

addition, to show deficient performance, the petitioner must show the absence of any

conceivable legitimate trial tactic explaining counsel’s performance. State v. Grier, 171 Wn.2d

17, 33, 246 P.3d 1260 (2011).

       To demonstrate prejudice, Cearley must show a “‘reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the outcome.’”

Crace, 174 Wn.2d at 840 (quoting Strickland, 466 U.S. at 694). Prejudice does not require a

showing that counsel’s actions more likely than not altered the outcome, but the likelihood of a

different result must be substantial, not just conceivable. Harrington v. Richter, 562 U.S. 86,

112, 131 S. Ct. 770, 178 L. Ed. 2d 624 (2011). “[I]f a personal restraint petitioner makes a

successful ineffective assistance of counsel claim, he has necessarily met his burden to show

actual and substantial prejudice” under the standard for personal restraint petitions. Crace, 174

Wn.2d at 846-47.



                                                15
No. 44282-5-II


B.     Public Trial

       Cearley’s petition includes headings arguing that his trial counsel was ineffective because

he failed to advise Cearley of his right to a public trial and that his appellate counsel was

ineffective for failing to raise this claim on direct appeal. But Cearley does not support either of

these assertions with legal argument or citations to authority. Such passing treatment of an issue

does not merit judicial consideration. In re Pers. Restraint of Bratz, 101 Wn. App. 662, 668 n.3,

5 P.3d 759 (2000); see RAP 16.7(a)(2)(ii). Accordingly, we do not consider this issue.

C.     Jury Communication

       Cearley argues that his trial counsel was ineffective because he failed to request a hearing

after Cearley told him that victim advocates had spoken to jurors. But Cearley’s claim fails

because he does not argue or demonstrate how any arguably deficient performance caused him

prejudice. Instead, he argues that he would “establish[] the requisite level of prejudice at [an

evidentiary] hearing” upon remand. PRP at 26. Because Cearley does not meet his burden to

establish that any deficiency caused him prejudice, his claim fails. Strickland, 466 U.S. at 700.

D.     Psychological Evaluation and Child Interview Expert

       Cearley argues that his trial counsel was ineffective for failing to request a psychological

evaluation of ADM. Cearley also argues that his trial counsel was ineffective for failing to call

an expert on child interview techniques. We disagree.

       1. Failure To Request Psychological Evaluation

       Cearley fails to provide factual support for the deficiency prong because the record and

declarations do not show that Cearley’s trial counsel knew about ADM’s psychological

diagnoses. Cearley argues that “there was evidence” that ADM suffered from significant



                                                 16
No. 44282-5-II


depression, and that this evidence was “available to defense counsel.” PRP at 28. He provides

her treatment records in support of the assertion that she suffered from depression, but he

provides no factual support for the allegation that defense counsel was aware of or had any

reason to know of these diagnoses. Thus, he does not provide factual support for the deficiency

prong of his argument, and it fails. Strickland, 466 U.S. at 700.

       2. Failure To Call Child Interview Expert

       Cearley also argues that his trial counsel was ineffective for failing to call an expert on

child interview protocols. Again, we disagree.

       Cearley does not provide factual support for the allegation that his trial counsel failed to

investigate the availability of such an expert. Moreover, Cearley does not provide any facts

about whether an expert on child interview protocols existed at the time of Cearley’s trial or

about the testimony any such expert could provide. Instead, he provides studies about child

interview protocols and argues that “[t]here is now a robust body of literature and a number of

experts who are available to testify” about the dangers of flawed child interviews. PRP at 29.

Thus, he cannot show any likelihood of a different result but for counsel’s failure to call an

expert; he can merely speculate that such an expert existed at the time of his trial and would have

testified favorably. Because Cearley provides no factual support, his claim fails.

E.     Counsel’s Behavior

       Cearley argues that his trial counsel was ineffective for being disrespectful, rude, and

cold to Cearley during trial. We disagree.

       Cearley’s claim fails because he concedes that a trial tactic explains his counsel’s

behavior. Cearley acknowledges that his counsel was rude “only . . . in front of the jury,” and



                                                 17
No. 44282-5-II


“[d]uring breaks he was nicer.” PRP (Appendix C). Cearley recalls his trial counsel telling him

“not to pay any attention to how he was acting because it was just ‘part of the plan.’” PRP

(Appendix C). Thus, according to Cearley, his trial counsel behaved coldly to him during trial as

part of a trial strategy. It is conceivable this strategy was to pay close attention to the

proceedings and remain on guard for any necessary objections. Thus, Cearley cannot show

deficient performance. Grier, 171 Wn.2d at 33.

F.      Failure To Notice Sleeping Juror and Move for Mistrial

        Cearley argues that his trial counsel was ineffective for failing to notice that two jurors

were sleeping and failing to move for a mistrial on that ground. But, as discussed above, Cearley

fails to provide any argument how this deficiency prejudiced him. Therefore, his claim fails.

Strickland, 466 U.S. at 700.

G.      Proposing Deficient Instruction

        Cearley argues that his trial counsel was ineffective for proposing a deficient instruction

on the “position of trust” sentencing aggravator. PRP at 39. We disagree.

        An attorney does not provide deficient performance by not challenging a WPIC when the

existing case law does not call the adequacy of the WPIC into question. See State v. Kyllo, 166

Wn.2d 856, 866-69, 215 P.3d 177 (2009); State v. Studd, 137 Wn.2d 533, 551, 973 P.2d 1049

(1999). As stated above, the “position of trust” instruction followed WPIC 300.23 verbatim.

Because Cearley cannot show that existing case law called the validity of WPIC 300.23 into

question, he cannot show that his counsel was deficient for proposing it or failing to challenge it.

Kyllo, 166 Wn.2d at 866-69; Studd, 137 Wn.2d at 551. Thus, his claim fails.




                                                  18
No. 44282-5-II


                                       IX. CUMULATIVE ERROR

        Finally, Cearley argues that he is entitled to a new trial due to cumulative error. We

disagree.

        The cumulative error doctrine is limited to instances where several trial errors, standing

alone, do not warrant reversal, but when combined deny the defendant a fair trial. State v.

Weber, 159 Wn.2d 252, 279, 149 P.3d 646 (2006). Here, even assuming for argument that

Camenzind made facial gestures during ADM’s testimony a couple of times, that jury

questionnaires were conducted privately, that a victim’s advocate had a conversation with a

juror, and that two jurors slept during portions of the trial, Cearley has not presented enough

facts to establish that he was not afforded a fair trial.

        In summary, Cearley fails to establish any constitutional error resulting in actual and

substantial prejudice or any fundamental defect resulting in a total miscarriage of justice. Thus,

we deny his personal restraint petition.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.


                                                                      Worswick, J.
 We concur:


 Johanson, C.J.



 Melnick, J.




                                                   19
