                                                                      FILED
                                                                 SEPTEMBER 22, 2016
                                                               In the Office of the Clerk of Court
                                                              WA State Court of Appeals, Division Ill




           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                              DIVISION THREE

STATE OF WASHINGTON,                         )
                                             )         No. 32779-5-111
                    Respondent,              )
                                             )
      v.                                     )         OPINION PUBLISHED
                                             )         IN PART
SEAN JOSEPH BATES,                           )
                                             )
                    Appellant.               )

       SIDDOWAY, J. -   Our Supreme Court has long held that before offering the

testimonial out-of-court statement of a witness against a criminal defendant, "the

confrontation clause's indispensable component of cross-examination 'requires the State

to elicit the damaging testimony from [a] witness so the defendant may cross-examine if

he so chooses."' In re Pers. Restraint of Grasso, 151 Wn.2d 1, 29, 84 P.3d 859 (2004)

(Sanders, J., dissenting) (quoting State v. Rohrich, 132 Wn.2d 472,478, 939 P.2d 697

(1997)). Following the United States Supreme Court's decision in Crawford v.

Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), our Supreme Court

reaffirmed Rohrich, holding that Crawford "left intact the governing case law analyzing
No. 32779-5-III
State v. Bates


the sufficiency of a witness's testimony for confrontation clause purposes." State v.

Price, 158 Wn.2d 630,650, 146 P.3d 1183 (2006). Sean Bates appeals his conviction of

two counts of first degree child rape, complaining for the first time on appeal that the

State's examination of his child victim was not sufficient for confrontation clause

purposes.

       The rationale for requiring the State to sufficiently elicit damaging information is

so the defense can cross-examine the witness about that information, whether it is

contained in in-court or out-of-court statements. In a case such as this, it spares the

defendant the risk of inflaming the jury if he calls a child as a direct witness. It

safeguards the defendant's right to rely on the State's burden of proof in a criminal case.

       In this case, the State's direct examination of the child victim was broad enough to

open the door to cross-examination of all of the damaging information provided by the

child victim, in court or out of court. For purposes of his confrontation clause challenge,

Mr. Bates fails to demonstrate manifest constitutional error. For purposes of a related

ineffective assistance of counsel argument, he fails to demonstrate any error or prejudice.

       Mr. Bates does show (and the State concedes) that a community custody condition

involving Internet use is not crime related, and that the trial court failed to undertake an

individualized inquiry into his ability to pay discretionary legal financial obligations. For

these reasons, and because Mr. Bates raises no meritorious arguments in a statement of

additional grounds, we affirm his convictions and remand for resentencing.

                                              2
No. 32779-5-111
State v. Bates


                    FACTS AND PROCEDURAL BACKGROUND

       For 18 months, Sean Bates rented the basement living area of the home of a

female coworker. Her granddaughter, SJ., is the victim in this case. Evidence was

presented at trial that during the time he rented the basement, Mr. Bates was a trusted

friend of his coworker. She allowed SJ. and SJ.'s younger brother to go down to the

basement living area to play on Mr. Bates's iPod (as long as it was okay with him) and

allowed them to swim and play with Mr. Bates in the family pool.

       During the charging period of September 1, 2012 to July 6, 2013, when SJ. was in

the first grade and turned seven years old, Mr. Bates put his finger underneath S.J.'s

clothes or bathing suit on numerous occasions to touch what she called her "front private

and [her] back private"-·"sometime[ s on] the outside and the inside" of her privates.

Report of Proceedings (RP) at 292-93. 1 Eventually, on July 6, 2013, he took her into his

basement bathroom, closed the door, pulled down her pants and underwear, and holding

her upside down, "licked [her] privates [on the] front and back." RP at 294. After his

conduct came to light, Mr. Bates was charged with two counts of child rape in the first

degree.

       Following a pretrial hearing to determine whether statements about Mr. Bates's

conduct that S.J. made to family and to a State child investigator would be admitted


       1
        "RP," without a date, refers to the report of proceedings of the trial. Reports of
other proceedings are identified by date.

                                             3
No. 32779-5-III
State v. Bates


under the child hearsay exception,2 the court found that the statements S.J. had made to

others "are reliable and will be admitted at trial." RP (June 9, 2014) at 104.

       At trial, the State presented its case by first calling as witnesses several family

members who had spoken with S.J. about Mr. Bates's sexual contact after it came to light

on July 9, 2013. The night before S.J. disclosed his conduct, she had a sleepover at her

aunt's house, with two cousins. The State's first witness was S.J.'s 8-year-old cousin,

who testified that when "talking about secrets," S.J. told her that "a guy at her

grandma's" had "licked her ... private spot". RP at 37.

       The State's next witness was S.J.'s 13-year-old cousin, to whom the 8-year-old

cousin immediately ran to report S.J.'s "secret," with S.J. in tow. S.J. repeated what Mr.

Bates had done to her to her older cousin.

       The State next called S.J.'s aunt, whom the 13-year-old phoned, asking her to

come over right away because it was "an emergency." RP at 54. S.J. 's aunt spoke to



       2
         The exception, codified at RCW 9A.44.120, provides that a statement made by a
child under the age of 10 describing any act of sexual contact performed with or on the
child by another is admissible in evidence in criminal proceedings if the court finds, in a
hearing outside the presence of the jury,
       ( 1) ... that the time, content, and circumstances of the statement provide
       sufficient indicia of reliability; and
       (2) The child either:
       (a) Testifies at the proceedings; or
       (b) Is unavailable as a witness: PROVIDED, That when the child is
       unavailable as a witness, such statement may be admitted only if there is
       corroborative evidence of the act.

                                              4
No. 32779-5-111
State v. Bates


SJ., who told her about what "Sean," her "[boyfriend] that lived at her grandma's house"

had done to her. RP at 55. All three witnesses recounted similar reports by SJ.: that

Sean, who lived at her grandma's house, had licked her "private part," or "bottom," and

had once put his finger in her "butt." RP at 37, 55, 45. SJ.'s aunt called her brother-

SJ.'s father-as well as the police.

       Before the State called SJ. to testify at trial, it called Mari Murstig, a child

interviewer with the Benton County Prosecutor's office who had conducted a videotaped

interview of S.J. on July 10, the day after the allegations of molestation came to light.

After questioning Ms. Murstig about her position, background, training, methods, and her

interview of S.J., the prosecutor had her authenticate the videotape, which was admitted

into evidence without objection. The approximately 40-minute videotape was then

played for the jury. In the course of the interview, S.J. told Ms. Murstig that on the prior

Saturday, Mr. Bates had pulled down her pants and underpants, hung her "upside down"

and licked her private parts in her grandma's downstairs bathroom. Ex. 30 at 21 min., 7

sec. She said Mr. Bates had been about to put his "wiener" inside her when her· grandma

knocked on the door, and he stopped. Id. at 26 min., 12 sec. She told Ms. Murstig that

on many occasions before that day, Mr. Bates had touched her "pee-pee" with his

finger-on the couch downstairs, on the couch upstairs, and outside on the tennis court.

Id. at 39 min., 00 sec.




                                               5
No. 32779-5-111
State v. Bates


       S.J. 's parents were both called as witnesses and testified to consistent statements

S.J. had made to them after they picked her up from her aunt's home on July 9. And

S.J. 's grandmother testified that S.J. and her younger brother often spent 'time in the

basement with Mr. Bates because he would let them play games on his iPod. The

grandmother also recalled that she had gone looking for S.J. on July 6, the Saturday when

S.J. had been molested in the basement bathroom, and had called for her in the basement

in response to which Mr. Bates, and then S.J., answered "In here," from behind the closed

bathroom door. Because the bathroom had an outside door to the pool area and was a

preferred entrance for wet swimmers who would otherwise track water through the

house, the grandmother assumed the two were just coming in from swimming.

       The State called S.J. as its final witness. Almost three dozen of the prosecutor's

questions related directly to Mr. Bates's sexual contact with S.J. She testified that on the

Saturday in question, Mr. Bates had turned her upside down and licked her private parts,

but that when her grandmother knocked on the door they put their clothes back on. She

also stated Mr. Bates had touched her private parts with his hand on the downstairs couch

while she was playing with his iPod on many Saturdays and Sundays. She denied that

she had ever played with Mr. Bates's iPod on the tennis court. When asked if she

remembered talking "to a lady about it when you colored with markers" (from the

videotape, jurors would have known this was Ms. Murstig), S.J. said that she did. RP at

296. She said she had told the lady about what happened with Mr. Bates. The prosecutor

                                              6
No. 32779-5-111
State v. Bates


did not ask S.J. to tell the jury anything about the content of her interview by Ms.

Murstig.

       On cross-examination, defense counsel asked S.J. a number of questions about the

statements she made when interviewed by Ms. Murstig. The State did not object to any

of the questioning as being beyond the scope of its direct examination.

       Mr. Bates testified in his own defense, denying S.J.'s allegations of sexual contact.

He also called his ex-girlfriend to testify to text and voice communications they had off

and on during the late afternoon and early evening of July 6. Evidence suggested that it

was sometime during that time frame that the molestation in the bathroom occurred.

       The jury found Mr. Bates guilty of both counts charged. He was sentenced to 144

months to life in prison. The court imposed a condition of community custody that

prohibits Mr. Bates from using "a computer or electronic device capable of accessing the

internet without authorization from [his] Community Corrections Officer and/or

therapist." Clerk's Papers (CP) at 109. It also imposed both mandatory and discretionary

legal financial obligations (LFOs) without conducting an individualized inquiry into Mr.

Bates's ability to pay. Mr. Bates appeals.

                                       ANALYSIS

                           I. Sixth Amendment confrontation right

      Mr. Bates's principal argument on appeal is that his United States constitutional

Sixth Amendment confrontation right was violated when the court admitted S.J.'s

                                             7
No. 32779-5-III
State v. Bates


unsworn interview by Ms. Murstig without then questioning S.J. broadly enough to

subject her to cross-examination. Unlike S.J.'s reports to family members, her recorded

interview by the prosecutor's child investigator was testimonial, implicating his

confrontation right. See Ohio v. Clark,_ U.S._, 135 S. Ct. 2173, 2182, 192 L. Ed. 2d

306 (2015) (statements about abuse made to teachers were not testimonial, unlike such

statements made to persons charged with uncovering and prosecuting criminal behavior).

Confrontation clause violations are reviewed de novo. State v. Jasper, 174 Wn.2d 96,

108,271 P.3d 876 (2012) (citing Lilly v. Virginia, 527 U.S. 116, 137, 119 S. Ct. 1887,

144 L. Ed. 2d 117 (1999)).

       Citing State v. Clark, 139 Wn.2d 152, 159, 985 P.2d 377 (1999), Mr. Bates argues

that under United States Supreme Court decisions in United States v. Owens 3 and

California v. Green, 4 "' the admission of hearsay statements will not violate the

confrontation clause if the hearsay declarant is a witness at trial, is asked about the event

and the hearsay statement, and the defendant is provided an opportunity for full cross-

examination.'" Br. of Appellant at 7-8. The emphasis, "and the hearsay statement," is

Mr. Bates's, not Clark's. He argues that because S.J. "was not asked about her hearsay

statements, she did not concede having made any of the statements reported by Ms.



       3
           484 U.S. 554, 108 S. Ct. 838, 98 L. Ed. 2d 951 (1988).
       4
           399 U.S. 149, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970).

                                              8
No. 32779-5-111
State v. Bates


Murstig and thus she was not open to "' cross-examination at trial as to both stories.'

[Price,] 158 Wn.2d at 640." Id. at 8. The emphasis of "both" is again Mr. Bates's, not

Price's.

       Clark extended an analysis of the confrontation clause first announced by our

Supreme Court in Rohrich. In Rohrich, which involved prosecution of the defendant for

first degree child rape and first degree child molestation of his stepdaughter, the State

called the stepdaughter to the stand as its first witness and asked her innocuous questions

unrelated to alleged abuse. Defense counsel did not cross-examine her. After that, the

State presented its evidence of abuse through other witnesses: four adults, who testified to

what the victim had told them. The Supreme Court found both statutory and

constitutional problems with this manner of proceeding.

       We consider only the Court's confrontation clause analysis, since Mr. Bates raised

no objection in the trial court to the State's offer of S.J.'s videotaped interview and any

challenge based on the child hearsay exception was not preserved. RAP 2.5(a). A

violation of the right to confront witnesses is constitutional error which, if manifest, we

may consider for the first time on appeal. RAP 2.5(a)(3); Clark, 139 Wn.2d at 156.

       In its confrontation clause analysis, the Rohrich court held:

       The opportunity to cross-examine means more than affording the defendant
       the opportunity to hail the witness to court for examination. It requires the
       State to eticit the damaging testimony from the witness so the defendant
       may cross-examine ifhe so chooses. Shaw v. Collins, 5 F.3d 128, 132 n.7
       (5th Cir. 1993). In this context "not only [must] the declarant have been

                                              9
No. 32779-5-111
State v. Bates


       generally subject to cross-examination; he must also be subject to cross-
       examination concerning the out-of-court declaration." United States v.
       West, 670 F.2d 675, 687 (7th Cir.[ 1982]), [overruled on other grounds by
       United States v. Green, 285 F.3d 683 (7th Cir. 2001)]. The State's failure
       to adequately draw out testimony from the child witness before admitting
       the child's hearsay puts the defendant in "a constitutionally impermissible
       Catch-22" of calling the child for direct or waiving his confrontation rights.
       Lowery v. Collins, 996 F.2d 770, 771-72 (5th Cir. 1993).

132 Wn.2d at 478 (first alteration in original) (footnotes omitted).

       Both of the Fifth Circuit decisions relied on in Rohrich offered the same reason

why the government's failure to adequately draw out an accuser's testimony created a

"constitutionally impermissible Catch-22." Shaw relied on Lowery:

      Requiring a criminal defendant to examine his accuser during his case-in-
      chief rather than mandating that the prosecution call the witness during its
      case-in-chief places the defendant in a no-win situation. Lowery v. Collins,
      988 F.2d 1364, 1369-70 (5th Cir. 1993). Such a requirement is inconsistent
      with the Confrontation Clause, for it requires the criminal defendant to
      either risk inflaming the jury by cross-examining the child-complainant or
      to avoid that risk by forgoing his Sixth Amendment rights to confront and
      cross-examine his accuser. Id. at 1369-1370.

Shaw, 5 F.3d at 132 n.7. Lowery observed in addition that forcing a criminal defendant to

call a child complainant to testify "unfairly requires a defendant to choose between his

right to cross-examine a complaining witness and his right to rely on the State's burden

of proof in a criminal case." 988 F.2d at 1368.

      The Seventh Circuit case cited by Rohrich arose in the different context of Federal

Rules of Evidence 80l(d)(l)(B). West, 670 F.2d at 686. The court held that if a witness

(Witness A) is impeached with a prior inconsistent statement suggesting recent

                                             10
No. 32779-5-111
State v. Bates


fabrication, then any prior consistent statement by Witness A offered to rebut the charge

of recent fabrication must come in through Witness A, on redirect or as a rebuttal

witness, in order to subject him or her to cross-examination. Id. at 687. Rejecting the

views of other federal courts, the Seventh Circuit held that the prior consistent statement

cannot be established by the testimony of a third party (Witness B). Id. In that context,

West explains that it is not enough that Witness A had testified and was subject to cross-

examination sometime during trial; he or she "must also be subject to cross-examination

concerning the out-of-court declaration." Id.

       At issue, then, is the scope of cross-examination and the State's burden of proof in

a criminal case. To demonstrate a violation of the confrontation clause as construed by

the Fifth Circuit Court of Appeals and our Supreme Court, 5 Mr. Bates must show that the

State's presentation of evidence required him to forego cross-examination or to challenge

S.J.'s allegations by calling her as a witness himself. To demonstrate manifest

constitutional error, he must show how the error actually affected his rights at trial; it is

this showing of actual prejudice that makes the error "manifest," allowing appellate

review. State v. Kirkman, 159 Wn.2d 918, 926-27, 155 P.3d 125 (2007).




       5
        In State v. Tompkins, 859 N. W .2d 631, 640-41 (2015), the Iowa Supreme Court
characterized our courts' view of this confrontation requirement as a minority view of
Crawford and other controlling decisions of the United States Supreme Court.

                                              11
No. 32779-5-111
State v. Bates


       Mr. Bates does not make this showing. To begin with, he did cross-examine S.J.

about statements she had made to Ms. Murstig when interviewed. And the State did not

object to the questions as outside the scope of its direct examination. He does not show

that the State's conduct forced him to limit his cross-examination or to call S.J. as a

witness.

       In addition, given the State's extensive questioning of S.J. about Mr. Bates's

offensive contact, it is hard to imagine any relevant questioning that would not have

fallen within the scope of cross-examination if the State had tried to object on the basis of

scope. ER 611 (b) governs the scope of cross-examination, and provides:

       Cross examination should be limited to the subject matter of the direct
       examination and matters affecting the credibility of the witness. The court
       may, in the exercise of discretion, permit inquiry into additional matters as
       if on direct examination.

       Given the breadth of S.J.'s testimony about Mr. Bates's sexual contact with her,

any relevant cross-examination based on her videotaped interview-including the couple

of events she described in the interview that she omitted or denied later-would have

fallen within ER 61 l(b)'s permitted scope.

       Mr. Bates depends heavily on statements in several of our Supreme Court's

decisions that the confrontation clause requires the State to question an accuser about the

accuser's out-of-court statement admitted into evidence. But in each case, the scope of

the accuser's direct examination was, or would have been, too limited to permit full


                                              12
No. 32779-5-111
State v. Bates


cross-examination without questioning about the prior statement. Rohrich quotes West's

statement that a declarant "' must ... be subject to cross-examination concerning the out-

of-court declaration,"' 132 Wn.2d at 478 (quoting West, 670 F.2d at 687), because the

questioning of the stepdaughter in Rohrich was so narrow that it did not subject her to

questioning about alleged abuse at all.

       Clark, which discusses the United States Supreme Court decisions in Green and

Owens, states that the admission of hearsay statements will not violate the confrontation

clause if the hearsay declarant "is asked about the event and the hearsay statement," 139

Wn.2d at 159, but in Clark, Green and Owens, it was only the hearsay statement that was

inculpatory. Clark and Green involved witnesses who recanted or backed away from a

prior accusation and Owens involved a brain-injured witness who had lost his memory of

an event by the time of trial. Unlike this case, in those cases it was only by questioning

the witnesses at trial about their hearsay statements that the State would subject them to

cross-examination about the damaging accusations admitted into evidence.

       Price states that the confrontation clause does not require excluding the prior

statement of a witness "'who concedes making the [out-of-court] statements"' and

thereby "' open[ s] himself to full cross-examination at trial as to both stories,'" but it is

quoting Green. 158 Wn.2d at 640 (quoting Green, 399 U.S. at 164).

       The language on which Mr. Bates relies applies in cases where the only way an

accuser will be subjected to cross-examination about the damaging information contained

                                               13
     No. 32779-5-111
     State v. Bates


     in an out-of-court statement is if the State's direct examination elicits the damaging

     information/ram that statement. This is not such a case.

               Mr. Bates has not identified manifest constitutional error.

                                     II. Ineffective assistance of counsel
I.
               Mr. Bates's trial lawyer did not object when the State offered the videotape of Ms.

     Murstig's interview, but Mr. Bates is willing to excuse that failure to object in light of the

     State's "implicit intent to make S.J. available as a witness." Br. of Appellant at 11. But

     he argues on appeal that once the prosecutor concluded direct examination without asking

     SJ. about her statements to Ms. Murstig, "defense counsel provided ineffective

     assistance in failing to move for a mistrial." Id. To demonstrate ineffective assistance of

     counsel, a defendant must show that his trial lawyer's representation was deficient (i.e., it

     fell below an objective standard of reasonableness based on consideration of all the

     circumstances) and the deficient representation prejudiced the defendant (i.e., there is a

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

     proceeding would have been different). State v. McFarland, 127 Wn.2d 322, 334-35,

     899 P.2d 1251 (1995) (citing State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816

     (1987)). The claim fails if the defendant fails to satisfy either prong. Thomas, 109 Wn.

     at 226.

               Our conclusion in addressing Mr. Bates's first assignment of error was that he had

     not identified manifest constitutional error, but we might as easily have said that he had

                                                    14
No. 32779-5-111
State v. Bates


not demonstrated any error-or any prejudice. As already discussed, the State did not

raise a scope objection and cut off Mr. Bates's cross-examination. Its direct examination

of S.J. was so broad that every subject matter of relevant cross-examination reflected in

the record would fall within the scope of cross-examination. Mr. Bates did not perform

ineffectively by failing to move for a mistrial.

       We affirm Mr. Bates's convictions and remand for resentencing consistent with

this opinion.

       The remainder of this opinion has no precedential value. Therefore, it will be filed

for public record in accordance with RCW 2.06.040, the rules governing unpublished

opm1ons.

                               Ill. Community custody condition

       Mr. Bates next argues that the trial court erred when it imposed a community

custody condition prohibiting him from using a device to access the Internet because

there is no evidence his crime was related to Internet access. "As part of any term of

community custody, the court may order an offender to ... comply with any crime-

related prohibitions." RCW 9.94A.703(3)(t). A "crime-related prohibition" is an order

that prohibits "conduct that directly relates to the circumstances of the crime for which

the offender has been convicted." RCW 9.94A.030(10). '"There must be some basis for

the "crime-related" determination if the limitation is to have any meaning.'" State v.




                                              15
No. 32779-5-111
State v. Bates


Parramore, 53 Wn. App. 527,531, 768 P.2d 530 (1989) (quoting DAVID BOERNER,

SENTENCING IN WASHINGTON§ 4.5 (1985)).

       Though Mr. Bates did not object to the condition at trial, challenges to community

custody conditions as illegal or erroneous may be made for the first time on appeal. State

v. Bahl, 164 Wn.2d 739, 744, 193 P.3d 678 (2008). 6

       The State concedes that the record does not support any inference of a nexus

between Mr. Bates's offenses and use of a computer or other access to the Internet. Br.

ofResp't at 8-9. We agree, accept the State's concession, and remand with directions to

strike the condition.

                                           IV. LFOs

       Finally, Mr. Bates argues for the first time on appeal that the trial court erred when

it imposed LFOs without conducting an individualized inquiry into his ability to pay.

The State concedes that no individualized inquiry was made and that this was error. Br.

of Resp't at 9.

       As a preliminary matter, we must consider whether to accept review of the issue.

Mr. Bates made no objection to the finding that he had the present or future ability to pay



       6
         Mr. Bates is currently incarcerated and has not yet been charged with violating
the challenged community custody condition. Considering the hardship to the parties that
may result from withholding court consideration, and because the issue raised is
primarily legal, does not require further factual development, and the challenged action is
final, we find his challenge is ripe for review. Bahl, 164 Wn.2d at 751.

                                             16
No. 32779-5-111
State v. Bates


pay and thereby failed to preserve a claim of error. RAP 2.5(a); State v. Blazina, 182

Wn.2d 827, 833, 344 P.3d 680 (2015) ("[u]npreserved LFO errors do not command

review as a matter of right"). But we enjoy discretion to consider the issue for the first

time on appeal. RAP 2.5(a); Blazina, 182 Wn.2d at 835. Because the State concedes

error and further action in the trial court is required, we exercise our discretion to review

the claimed error.

       Under RCW 10.01.160(3), "[t]he court shall not order a defendant to pay costs

unless the defendant is or will be able to pay them." "The record must reflect that the

trial court made an individualized inquiry into the defendant's current and future ability

to pay." Blazina, 182 Wn.2d at 838. The record does not reflect any such inquiry in this

case. We remand for resentencing at which Mr. Bates' ability to pay the $1,297.60 in

discretionary LFOs shall be considered. 7

                      STATEMENT OF ADDITIONAL GROUNDS

       In a prose statement of additional grounds for review (SAG), Mr. Bates raises

two.




       7
         Discretionary LFOs included a $60.00 sheriffs filing fee, $250.00 jury demand
fee, $287.60 witness fee, and $700.00 in attorney fees. The $200.00 filing fee under
RCW 36.18.020(2)(h) is mandatory. The discretionary or mandatory character of the
jury demand fee remains unclear. See State v. Clark, No. 32839-2-111, slip op. at 4
(Wash. Ct. App. Sept. 8, 2016),
https://www.courts.wa.gov/opinions/pdf/3 283 92~ub. pdf.

                                             17
No. 32779-5-111
State v. Bates


       S.J. 's Credibility. Having reviewed his copy of the transcript of proceedings, Mr.

Bates identifies instances in which he characterizes S.J. 's testimony as incorrect or

inconsistent, argues that those errors and inconsistencies bear on her credibility, and cites

statutes from other states that he contends recognize the need to consider corroborating

evidence in determining whether a child's testimony is trustworthy.

       S.J. 's statements and testimony were sometimes inconsistent but were largely

consistent, and she could very reasonably be found to be credible. We defer to the trial

court's assessment of credibility in applying the child hearsay exception and to the jury's

assessment in arriving at its verdict. State v. Swan, 114 Wn.2d 613,667, 790 P.2d 610

(1990) ("Appellate courts ... recognize ... that the trial court is in the best position to

make the decisions as to competency and credibility" in a hearing on the admission of

child hearsay); Burnside v. Simpson Paper Co., 123 Wn.2d 93, 108, 864 P.2d 937 (1994)

("The credibility of witnesses ... are matters within the province of the jury." (emphasis

omitted) (quoting Burke v. Pepsi-Cola Bottling Co., 64 Wn.2d 244, 246, 391 P.2d 194

(1964)).

       Ineffective Assistance of Counsel. Mr. Bates alleges his trial lawyer provided

ineffective assistance of counsel at trial in five instances; according to Mr. Bates, his

lawyer (1) failed to obey a court order to send his ex-girlfriend's iPad to a forensic

computer analyst (she was a defense witness and testified to matters she had reviewed on

her iPad); (2) failed to visit the crime scene or employ an investigator; (3) failed to

                                              18
No. 32779-5-111
State v. Bates


investigate another suspect; (4) failed to obtain medical reports; and ( 5) failed to

investigate and prepare for trial. SAG at 6-7. The record does not reveal that his trial

lawyer failed to do any of these things. To the extent Mr. Bates's challenge depends

upon facts outside the record of this appeal, his remedy is to seek relief by personal

restraint petition. State v. Norman, 61 Wn. App. 16, 27-28, 808 P.2d 1159 (1991).

       Again, we affirm Mr. Bates's convictions and remand for resentencing consistent

with this opinion.




WE CONCUR:




                                              19
