                                                                                                  Filed
                                                                                            Washington State
                                                                                            Court of Appeals
                                                                                             Division Two

                                                                                            January 23, 2018

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                DIVISION II
    In re the Personal Restraint Petition of:                          No. 49451-5-II

    CYNTHIA SUE MILLER,

                                Petitioner.

                                                                UNPUBLISHED OPINION



          MELNICK, J. – Cynthia Sue Miller seeks relief from personal restraint imposed following

her conviction for two counts of assault of a child in the first degree, one count of assault of a child

in the second degree, one count of assault of a child in the third degree, one count of criminal

mistreatment in the fourth degree, and another count of assault of a child in the second degree. All

of the counts alleged domestic violence. The first three also alleged aggravating factors. Miller

contends she is under unlawful restraint because the State suppressed favorable evidence in

violation of Brady1 resulting in prejudice to her. We disagree and deny the petition.2

                                                  FACTS

          Miller is S.L-K.’s grandmother. When S.L-K. was nine years old, her school filed a child

neglect complaint with Child Protective Services (CPS). S.L-K. was taken to the Sexual Assault

Clinic and Child Maltreatment Center where an examination showed bruising on S.L-K.’s entire



1
    Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
2
 On March 3, 2016, Miller filed a notice of appeal. This court stayed her direct appeal pending
our decision on her PRP. No opening briefs have been filed on Miller’s direct appeal.
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body. X-rays showed healing fractures to both of S.L-K.’s wrists, her left arm, one of her fingers,

and one of her toes.

       Thurston County Sheriff’s Office Detective Jamie Gallagher started an investigation. She

questioned several of Miller’s other grandchildren, who also lived with Miller, about S.L-K. They

told Gallagher that S.L-K. was treated differently than them because S.L-K. “had a demon” inside

here. Br. of Resp’t Appx. F at 2. They witnessed Miller whip S.L-K. with a belt.

       When interviewed, S.L-K. was reluctant to talk about Miller. She did, however, report that

Miller tried to drown her in a bathtub by holding her under water.

       On December 24, 2013, the State charged Miller with assault of a child in the second

degree—domestic violence.

       On July 20, 2015, the prosecutor e-mailed Miller’s attorney CPS’s investigation notes. The

notes in our record are redacted, but according to the prosecutor, the notes state that S.L-K. told a

social worker that she was “molested by a cousin named Kenneth.” Br. of Resp’t Appx. H at 5.

(See also Br. of Resp’t at Appx. G) The notes given to defense counsel also state that “[a]llegations

of sexual abuse by ‘Kenneth Unknown’ were reported to law enforcement on 04/24/2014.” Br. of

Resp’t Appx. H at 5.

       In January 2016, the State amended its information to charge Miller with all of the counts

previously listed. According to the prosecutor, there was no investigation of a possible sexual

assault by someone named “Kenneth Unknown” before or during Miller’s bench trial. Br. of

Resp’t App. G at 3.

       During the January 2016 bench trial, the prosecutor asked S.L-K. if anyone else had hurt

her other than Miller. S.L-K. testified there was a person named “Dean” who would “roll [her] in

the carpet and slam[ ] [her] on the floor.” Br. of Resp’t Appx. L at 75. The prosecutor then asked



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49451-5-II


S.L-K. if there was anyone else who hurt her. S.L-K. responded, “I don’t remember, no.” Br. of

Resp’t Appx. L at 75. On January 22, the trial court found Miller guilty as charged.

       On February 24, 2016, S.L-K.’s grandfather informed the prosecutor that S.L-K. disclosed

that she had been sexually abused by a person named Kenneth. The prosecutor then disclosed this

information to Gallagher. Because the alleged abuse occurred in a different jurisdiction, the

information was forwarded to the appropriate police department.

       On March 2, the sentencing court sentenced Miller.

       On March 3, Lacey Police Department officers met with S.L-K.’s grandfather, who

reported that S.L-K. confided to him that Miller’s nephew, Kenneth Spears, had sexually abused

her. S.L-K. also reported the abuse to a sexual assault examiner and told the examiner that she

told Miller about Spears’s sexual abuse, but Miller “beat her for telling” and Miller’s adult son

placed S.L-K.’s hand over a hot burner and threatened to cut off her fingers if she told. Br. of

Resp’t at Appx. G. On June 17, the prosecutor sent an e-mail to Miller’s attorney regarding these

allegations.

       Miller filed a personal restraint petition (PRP) challenging her convictions.

                                           ANALYSIS

       Miller contends the State violated her right to due process under Brady by failing to provide

the defense with material exculpatory evidence pertaining to Spears’s alleged sexual assault of

S.L-K. We disagree.

I.     STANDARD OF REVIEW

       When considering a PRP, a court may grant relief to a petitioner only if the petitioner is

under an unlawful restraint, as defined by RAP 16.4(c). In re Pers. Restraint of Yates, 177 Wn.2d

1, 16, 296 P.3d 872 (2013). The collateral relief afforded under a PRP is limited, and requires the



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petitioner to show that he was prejudiced by the alleged error of the trial court. In re Pers. Restraint

of Hagler, 97 Wn.2d 818, 819, 650 P.2d 1103 (1982). There is no presumption of prejudice on

collateral review. Hagler, 97 Wn.2d at 823. The petitioner must either make a prima facie

showing of a constitutional error that, more likely than not, constitutes actual and substantial

prejudice, or a nonconstitutional error that inherently constitutes a complete miscarriage of justice.

In re Pers. Restraint of Cook, 114 Wn.2d 802, 810, 812, 814, 792 P.2d 506 (1990). Without either

such showing, we must dismiss the petition. Cook, 114 Wn.2d at 810, 812. However, with respect

to claims of Brady violations, the prejudice element of a petition is established by showing “a

reasonable probability that the outcome of the proceedings would have been different” absent the

Brady violation. In re Pers. Restraint of Crace, 174 Wn.2d 835, 845, 280 P.3d 1102 (2012).

       The petitioner’s allegations of prejudice must present specific evidentiary support. In re

Pers. Restraint of Rice, 118 Wn.2d 876, 886, 828 P.2d 1086 (1992). Such support may come from

the trial court record. “If the petitioner’s allegations are based on matters outside the existing

record, the petitioner must demonstrate that he has competent, admissible evidence to establish the

facts that entitle him to relief,” which may include affidavits or other corroborative evidence. Rice,

118 Wn.2d at 886. Bald assertions and conclusory allegations are insufficient support. Rice, 118

Wn.2d at 886. If a petitioner makes a prima facie showing of prejudice, but the merits of his

assertions cannot be determined on the record, we will remand for a hearing pursuant to RAP

16.11(a) and RAP 16.12. In re Pers. Restraint of Hews, 99 Wn.2d 80, 88, 660 P.2d 263 (1983).




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II.       BRADY VIOLATION

          Miller asserts that, under Brady, the State violated its duty to disclose evidence favorable

to the accused by suppressing exculpatory evidence that would have changed the outcome of

Miller’s trial. We disagree.

          To establish a Brady violation, the petitioner must establish three elements: “(1) ‘[t]he

evidence at issue must be favorable to the accused, either because it is exculpatory, or because it

is impeaching,’ (2) ‘that evidence must have been suppressed by the State, either willfully or

inadvertently,’ and (3) the evidence must be material.” State v. Davila, 184 Wn.2d 55, 69, 357

P.3d 636 (2015) (quoting Strickler v. Greene, 527 U.S. 263, 281-82, 119 S. Ct. 1936, 144 L. Ed.

2d 286 (1999)). If a defendant fails to demonstrate any of the three elements, his Brady claim

fails. State v. Sublett, 156 Wn. App. 160, 199-201, 231 P.3d 231 (2010), aff’d, 176 Wn.2d 58

(2012).

          A.      Favorable Evidence

          Favorable evidence under Brady includes impeachment evidence as well as exculpatory

evidence. Davila, 184 Wn.2d at 70. Miller alleges the evidence was exculpatory. Exculpatory

evidence “tend[s] to establish a criminal defendant’s innocence.” Black’s Law Dictionary 577

(7th ed. 1999).

          Here, Miller was charged with, and convicted of, two counts of assault of a child in the

first degree—domestic violence with aggravating factors, one count of assault of a child in the

second degree—domestic violence with aggravating factors, one count of assault of a child in the

third degree—domestic violence with aggravating factors, one count of criminal mistreatment in

the fourth degree—domestic violence, and one count of assault of a child in the second degree—

domestic violence. These crimes are supported by medical records and statements from S.L-K.



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and Miller’s other grandchildren. Evidence that S.L-K. was sexually abused by another individual

would not be material to Miller’s guilt of the assault and criminal mistreatments offenses.

          B.     Suppression

          Moreover, there was no suppression. Suppression occurs when the government withholds

material evidence favorable to the accused, “irrespective of the good faith or bad faith of the

prosecution.” In re Pers. Restraint of Stenson, 174 Wn.2d 474, 486, 276 P.3d 286 (2012).

          Here, six months before trial, the prosecutor e-mailed Miller’s attorney CPS’s investigation

notes. The notes state that S.L-K. told a social worker that she was “molested by a cousin named

Kenneth.” Br. of Resp’t at App. H at 5. The notes given to defense counsel also state that

“[a]llegations of sexual abuse by ‘Kenneth Unknown’ were reported to law enforcement on

04/24/2014.” Br. of Resp’t at App. H at 5. “The minimal guarantees of due process do not require

the prosecution to conduct an independent investigation in the hopes of bolstering potentially

exculpatory defense theories.” State v. Mullen, 171 Wn.2d 881, 902, 259 P.3d 158 (2011). Since

the government did not withhold evidence, there was no suppression in violation of Brady.

          Miller also appears to argue in her reply brief that the State violated Brady by not disclosing

information about Spears after trial. In general, “Brady governs the State’s disclosure obligations

and does not provide the proper analytical framework to analyze any-and-all evidence discovered

after trial.” Mullen, 171 Wn.2d at 902. Regardless, our record shows the prosecutor promptly

contacted the authorities and defense counsel after learning of the molestation allegations against

Spears.




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       C.      Prejudice

       Lastly, Miller does not show the results of her trial would have been any different.

Prejudice is shown when the admission of the suppressed evidence would have created a

reasonable probability of a different result. In re Pers. Restraint of Woods, 154 Wn.2d 400, 428,

114 P.3d 607 (2005). Reasonable probability is defined as “‘a probability sufficient to undermine

confidence in the outcome.’” United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 87 L.

Ed. 2d 481 (1985) (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L.

ED. 2d 674 (1984)). Favorable evidence must be disclosed to the accused “‘where the evidence

is material either to guilt or to punishment.’” Stenson, 174 Wn.2d at 486 (quoting Brady, 373 U.S.

at 87). “‘The mere possibility that an item of undisclosed evidence might have helped the defense

or might have affected the outcome of the trial . . . does not establish ‘materiality’ in the

constitutional sense.’” In re Pers. Restraint of Lui, 188 Wn.2d 525, 566, 397 P.3d 90 (2017)

(quoting State v. Kwan Fai Mak, 105 Wn.2d 692, 704-05, 718 P.2d 407 (1986)).

       Based on the weight of the State’s evidence, including medically documented bruising and

fractures, and statements by S.L-K. and Miller’s other grandchildren, the evidence of possible

molestation by another individual would not likely change the results of the proceeding.

       Miller fails to show a Brady violation. Because there is no showing of a constitutional

error that, more likely than not, constitutes actual and substantial prejudice, or a nonconstitutional

error that inherently constitutes a complete miscarriage of justice, we deny her PRP.




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        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.




                                                            Melnick, J.

We concur:




        Worswick, J.




        Bjorgen, C.J.




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