                                                                        FILED 

                                                                    NOVEMBER 13, 2014 

                                                                  In the Office of the Clerk of Court 

                                                                W A State Court of Appeals, Division III 





            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


STATE OF WASHINGTON,                           )
                                               )         No. 31222-4-III
                     Respondent,               )
                                               )
       v.                                      )
                                               )
DOUGLAS EARL MEYER,                            )         UNPUBLISHED OPINION
                                               )
                     Appellant.                )

       SlDDOWAY, C.J. - Douglas Meyer appeals his conviction of felony failure to

register as a sex offender. He does not dispute that he failed to register as a sex offender

for many years following his conviction of second degree rape. He argues instead that

the rape conviction-the predicate for the failure to register charge-was

unconstitutional, because he received ineffective assistance of counsel at trial. He also

contends that a recantation by one of the State's witnesses at the rape trial raises an issue

as to the constitutional validity of his conviction. Mr. Meyer moved for dismissal of the

failure to register charge on account of these alleged infirmities in his predicate

conviction and argues on appeal that the trial court erred when it denied his motion.
No. 31222-4-III
State v. Meyer


       Because Mr. Meyer failed to present a colorable fact-specific argument that his

predicate conviction was constitutionally invalid, the trial court properly denied his

motion to dismiss. We affirm.

                    FACTS AND PROCEDURAL BACKGROUND

       In 1992, a Grant County court found Mr. Meyer guilty of rape in the second

degree following a bench trial, and sentenced him to 72 months' imprisonment. His

conviction was affirmed on appeal and a personal restraint petition was later denied. He

was released from prison in June 2000 and moved to the state of Idaho. He was

supervised by the Washington State Department of Corrections until 2002.

       Mr. Meyer then returned to Washington and moved to Benton County, where he

neglected to register as a sex offender as required. He lived in Benton County for

approximately seven years without registering. The fact that he was living, unregistered,

at an address in Kennewick was discovered when the Benton County sheriffs department

followed up on an inquiry from a Grant County sex offender registration detective. A

Benton County detective spoke with Mr. Meyer, telling him that he needed to come into

the sheriff s office to register immediately. When he did not, the detective traveled to

Mr. Meyer's home and placed him under arrest. Following his arrest, Mr. Meyer

completed his registration requirements.




                                             2

No. 31222-4-111
State v. Meyer


       Mr. Meyer was charged shortly thereafter with felony failure to register under

former RCW 9A.44.130(l1)(a) (2006).1 He filed a CrR 8.3(c) motion to dismiss the

charge on the basis that the underlying rape conviction was constitutionally invalid.

       Mr. Meyer offered three sworn or unsworn statements in support of his CrR 8.3

motion. A brief statement of the allegations made at his 1992 trial for second degree rape

will provide a context. Mr. Meyer was convicted of the second degree rape ofTR, the

16-year-old daughter of his former girl friend. TR alleged that one night in February

1992, Mr. Meyer arrived at her home in Coulee, Washington between 1:00 and 2 :00 in

the morning and asked to be let in to get some personal property. She claims that after

she let him in, Mr. Meyer held her down on her bed and penetrated her vagina with his

fingers and briefly with his penis. Mr. Meyer denied TR's allegations and denied being

in Coulee, Washington that night. At the time, he was living in Lewiston, Idaho.

       The first affidavit offered by Mr. Meyer in support of his motion to dismiss the

charge of failing to register as a sex offender was an affidavit of his defense lawyer in the




       I Former RCW 9A.44.l30(1l)(a) provided:
       A person who knowingly fails to comply with any of the requirements of
       this section is guilty of a class C felony ifthe crime for which the
       individual was convicted was a felony sex offense as defined in subsection
       (lO)(a) of this section or a federal or out-of-state conviction for an offense
       that under the laws of this state would be a felony sex offense as defined in
       subsection (lO)(a) of this section.

                                              3

No. 3 1222-4-III
State v. Meyer


1992 trial, Richard C. Fitterer. The affidavit had been executed in January 1995.

Relevant here, Mr. Fitterer testified:

       There was a discussion with John Knodell, the Prosecutor, about having
       both Mr. Meyer and [TR] take a lie detector test, as we both detected
       serious time and fact discrepancies. Mr. Meyer, at my suggestion, was
       given a lie detector in Idaho, which he passed, Mr. Meyer then came to
       Grant County, where the investigator said he was not able to get a valid
       "sample." I know of no test given to [TR].

Clerk's Papers (CP) at 161.

       A second piece of evidence offered by Mr. Meyer was a transcription of an

interview of Mela Green. Mela Green was the daughter of Heidi Meyer. Ms. Green, Ms.

Meyer, another daughter of Ms. Meyer's, and Rex Meyer, lived on the main floor of the

Lewiston house in which Douglas Meyer lived in the basement. Ms. Green testified on

behalf of the State at Mr. Meyer's 1992 trial, evidently to assist the State in challenging

Mr. Meyer's claim that he had been at his Lewiston home the entire night and morning of

the alleged rape.

       According to the transcription of Ms. Green's unsworn recorded interview, which

was taped in May 1997, Ms. Green stated that she had been under "[a lot] of pressure" at

the time of the rape trial. CP at 165. The transcript of her interview includes the

following questions and answers (errors are in the original):

       JP [Jan Pfundheller, a private investigator]- Ok, do you remember when
              this case when to trial in 1992 I believe? 

       MG [Mela Green]- Va. 

       JP-    Dh, do you remember what your testimony was? 


                                             4

No. 3 1222-4-II1
State v. Meyer


      MG- Yes, I was under allot of pressure and I though I said I wasn't sure if
          his car was or was not there that night.
      JP­ Ok
      MG­ It's what I remember what I thought I said.
      JP- When you tell me Mela that you were under allot of pressure can
          you remember where you felt that pressure came from?
      MG- Yes, from being threatened from Rex and his brother and from being
          kicked out of the house.
      JP- Ok, did you feel, did you ever feel threatened, not threatened, I'm
          sorry I'm using the wrong word. Did you ever feel pressured by the
          Prosecutor?
      MG­ Well ya, I didn't understand what they were saying.
      JP­ Ok
      MG- It was hard to comprehend what the questions he was asking me
          because I didn't understand them.
      JP- Ok, so Mela if that were to go to trial today instead of sitting here at
          your kitchen table, would your testimony be that you don't recall
          seeing that car that night at all?
      MG­ Yes.
      JP- Could that car, in your opinion Mela, could that car have been at that
          house after midnight when you arrived home?
      MG- It could have.

CP at 165-66.

      The third piece of evidence offered by Mr. Meyer was an unsworn statement of

what an investigator had been told by Jerry Kytonen of Clarkston, Washington. Mr.

Kytonen was an acquaintance of Heidi Meyer and Mela Green. According to the

statement, Mr. Kytonen had driven Ms. Meyer and Ms. Green to Ephrata to testify at

Doug Meyer's 1992 trial. The statement indicated that Heidi Meyer had told Mr.

Kytonen "numerous times ... that she hated Doug Meyer's guts and would 'get him.'"

CP at 162. According to the statement, Heidi Meyer asked Mr. Kytonen to testify that he



                                           5

I
    No. 31222-4-111
    State v. Meyer
\
    drove by the Meyer home early on the morning of the alleged rape and that Doug

    Meyer's car was not there, but Mr. Kytonen refused. The statement also indicated that

    Mr. Kytonen had, "on a number of occasions" heard Heidi Meyer telling Mela Green

    what she needed to testify to when she went to court, and

           Heidi[] wanted to make sure that Mela said that the car was not there. He
           stated that Heidi told Mela that "you have to say it was gone or we won't
           get Doug." Jerry stated that Mela would say that she wasn't sure if the car
           was gone and that she didn't remember.

    Id.

           The State responded to Mr. Meyer's motion to dismiss first, by challenging his

    right as a legal matter to attack the 1992 judgment and sentence; and second, on the basis

    that his evidence was insufficient. It argued that Mr. Fitterer's affidavit did not establish

    the existence of an agreement that would have permitted introduction of polygraph

    evidence at trial and the unsworn interview of Ms. Green did not amount to a recantation.

           Having considered Mr. Meyer's evidence, the trial court denied his motion to

    dismiss. It later entered two conclusions of law in support:

           1. 	   The defendant failed to raise a colorable claim regarding the 

                  unconstitutionality of the predicate offense and therefore the 

                  predicate offense is constitutionally valid. 

           2. 	   Based upon a review of the uncontested facts, a rational trier of fact
                  could find the essential elements of Failure to Register as a Sex
                  Offender, RCW 9A.44.130(l1)(a), beyond a reasonable doubt.

    CP at 206-07. Mr. Meyer's request for interlocutory appeal was denied.




                                                  6

No. 3 1222-4-III
State v. Meyer


       Mr. Meyer was convicted of felony failure to register following a stipulated facts

trial in which he preserved the issues raised by his motion to dismiss. He was sentenced

to 21 days' confinement with credit for 21 days served. He appeals.

                                         ANALYSIS

       The crime of failing to register provided by former RCW 9A.44.130{l1)(a)

requires that the offender has a prior, constitutionally valid, sexual offense conviction.

The existence of a constitutionally valid prior conviction is an essential element of the

offense~   which the State must prove beyond a reasonable doubt. Cf State v. Swindell, 93

Wn.2d 192, 196-97,607 P.2d 852 (1980) (predicate conviction as an essential element of

felon in possession of a firearm). If a defendant challenges the constitutionality of a

predicate conviction, it is not considered an attempt to invalidate the prior judgment and

sentence, as in the case in a direct appeal or personal restraint petition. '''Rather, [such a]

defendant seeks to foreclose the prior conviction's present use to establish an essential

element.'" State v. Summers, 120 Wn.2d 801,810,846 P.2d 490 (1993) (quoting

Swindell, 93 Wn.2d at 196).

       A defendant who contends that a predicate conviction relied upon by the State is

constitutionally invalid bears an initial burden of offering "a colorable, fact-specific

argument supporting the claim of constitutional error in the prior conviction." Id. at 812.

Once this showing is made, the burden shifts to the State to prove beyond a reasonable




                                               7

No. 3 I 222-4-II1
State v. Meyer


doubt that the predicate conviction is constitutionally sound. Id. The State's burden

arises only after the defendant has made an initial showing. Id.

       Mr. Meyer assigns error to both of the trial court's conclusions of law entered in

denying his motion to dismiss. He argues that individually or collectively, his evidence

of ineffective assistance of counsel and recantation by a witness met his initial burden of

presenting a colorable, fact-specific argument that the predicate conviction was

constitutionally invalid. We review challenges to conclusions of law de novo. State v.

Armenta, 134 Wn.2d 1, 9,948 P.2d 1280 (1997).

                             Ineffective assistance ofcounsel

       Mr. Meyer contends that the lawyer who defended him at his 1992 trial provided

ineffective assistance because he failed to reduce to writing an oral agreement by the

prosecutor to admit polygraph evidence. Evidence of the results of a polygraph test is

inadmissible absent the written stipulation of both parties. See State v. Renfro, 96 Wn.2d

902,905,639 P.2d 737 (1982); State v. Sutherland, 94 Wn.2d 527,529,617 P.2d 1010

(1980). Mr. Meyer submitted to polygraph testing. His experts would have testified that

the results of his polygraph examination indicated that he was being truthful in denying

he had raped TR. 2 He argues that he was prejudiced because the lack of any stipulation

by the prosecutor prevented him from offering the polygraph evidence at trial.


       Mr. Meyer took two polygraph examinations. One examiner found that Mr.
       2
Meyer was being truthful when he stated he had not committed the rape. The other

                                             8

I

I

i

!
!
     No. 31222-4-111
     State v. Meyer
~
I



I           To prevail on an ineffective assistance of counsel claim, a defendant must show

r    that defense counsel's deficient performance prejudiced him. State v. McFarland, 127
!I
!
     Wn.2d 322,334-35,899 P.2d 1251 (1995). Counsel's performance is deficient when it

     falls below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668,

     705,940 P.2d 1239 (1997). To show prejudice, Mr. Meyer must establish that "there is a

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

     proceeding would have been different." McFarland, 127 Wn.2d at 335.

            The facts Mr. Meyer presents in support of his contention that he received

     deficient and prejudicial legal representation do not present a colorable claim of

     ineffective assistance. At most, Mr. Fitterer recounts a discussion with the prosecutor

     about obtaining polygraph examinations of both Mr. Meyer and TR. He does not say that

     an agreement was reached. There is no evidence that TR was willing to submit to

     polygraph testing even if it were true that the prosecutor and Mr. Meyer's lawyer thought

     that testing her and Mr. Meyer would help resolve their "time and fact discrepancies."

     CP at 161. Mr. Meyer's showing that polygraph testing was discussed, without more,

     fails to demonstrate viable issues of either deficient representation or prejudice.




     examiner found the first test results to be inconclusive and then conducted his own test in
     which he concluded that Mr. Meyer was being deceptive. The test results were sent to a
     third party who found that Mr. Meyer was being truthful in his answers.

                                                   9
    No. 31222-4-111
    State v. Meyer


                                            Recantation

           Alternatively, Mr. Meyer argues that the predicate conviction was based on the

I   false testimony of a later-recanting witness. He contends that "[t]his evidence discovered
I
    after trial could change its results if a new trial were granted and is material, not merely

    cumulative or impeaching, as the recantation supports Mr. Meyer's alibi defense." Br. of

    Appellant at 8.

           The admissible bottom line of Ms. Green's 1997 unsworn interview is that at that

    time, her testimony would have been that she "[didn't] recall seeing that car that night at

    all." CP at 165. We agree with the State that if that can even be said to be a recantation,

    it is not much of a recantation.

           But our rejection of this argument by Mr. Meyer is more fundamental. Mr.

    Meyer's brief fails to explain how newly acquired evidence implicates the

    constitutionality ofthe predicate conviction. See RAP 10.3(a)(6). Newly acquired

    evidence can support entitlement to a new trial, including through a collateral attack. See

    CrR 7.5(a)(3) (newly discovered evidence material for the defendant as basis for a new

    trial); RCW 10.73.100(1) (newly discovered evidence as a basis for postconviction relief

    is not subject to one-year time limit). But if the defendant does not seek the remedy of a

    new trial, the conviction stands.

           It is only when a defendant presents colorable, fact-specific argument supporting

    constitutional error in a predicate conviction that the State is required to prove beyond a

                                                  10
No. 31222-4-111
State v. Meyer


reasonable doubt that the conviction reflected in a judgment and sentence is

constitutionally valid. No constitutional infirmity was suggested here. It was sufficient

for the State to offer a certified copy of the judgment and sentence.

       Affirmed.

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

Washington Appellate Reports but it will be filed for public record pursuant to RCW

2.06.040.




                                              Siddowa~                      U
WE CONCUR:



Brown, J.



Korsmo,J.    V




                                             11 

