In re Pers. Restraint of Schneider

In the Matter of the Personal Restraint of: ERIC STEVEN SCHNEIDER, Petitioner.

No. 77780-7-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

October 14, 2019

UNPUBLISHED OPINION

LEACH, J. — Eric Schneider collaterally challenges his 2014 convictions for two counts of rape of a child in the second degree—domestic violence, one count of rape of a child in the third degree—domestic violence, and incest in the first degree. He asserts his trial counsel provided ineffective assistance because counsel did not retain a medical expert to respond to the State's medical expert's testimony. But Schneider does not establish that his counsel did not retain a medical expert. Neither does he show that counsel's decision not to present a medical expert's testimony was an unreasonable trial strategy. So he does not prove deficient performance. We deny the petition.

FACTS

In 2011, the State charged Schneider with two counts of rape of a child in the second degree—domestic violence, one count of rape of a child in the third degree—domestic violence, and incest in the first degree. A jury found him guilty as charged. The trial court sentenced him to life in prison with a minimum term of 280 months. Schneider appealed his convictions. This court affirmed the convictions in an unpublished opinion.¹ The Washington Supreme Court denied Schneider's motion for discretionary review. He now challenges his convictions with this personal restraint petition (PRP). He asks this court to consider the record from the direct review proceedings.

We repeat the following facts from this court's opinion affirming his convictions on appeal. J.S. was born March 1, 1995, to Elizabeth. In December 2005, Elizabeth married Eric Schneider. Schneider often took care of J.S. and her two siblings while Elizabeth worked nights.

J.S. reported the following facts in police interviews and trial testimony. Schneider began sexually abusing J.S. after he married her mother. The first incident occurred while Schneider and the three children were driving at night to pick up Elizabeth. After Schneider stopped the car near the woods, he told the boys to get out and play. He then took J.S. onto his lap and attempted to penetrate her vaginally. When she told him that hurt too much, he penetrated her anally instead. Later, again in a vehicle, Schneider raped J.S. vaginally for the first time after taking her to a father-daughter dance.

J.S. could recall only these incidents in detail. The "rest of the times, they just blended in." She testified that the rapes occurred once per week in the beginning and increased to three or four times per week when she was 14 and 15. Schneider and J.S. also had oral sex. Schneider penetrated J.S. using sex toys. At other times, he penetrated her with a handgun. He asked J.S. to wear her mother's lingerie and high-heeled shoes. He showed her pornography and asked her to imitate what it showed.

Schneider and J.S. often had sex in vehicles. He also took her to empty houses under construction and to motel rooms. Schneider also had sex with J.S. in her parents' bedroom and her own bedroom and, less often, in the living room.

J.S. described Schneider as being gentle with her at first but violent as she grew older. He hit her. He put a belt around her throat and held it during sex. He penetrated her with a sex toy in one orifice while he was penetrating her in another. After he raped her in the shower, he urinated on her. Once, he carved his initials on her pubis with a knife, making her bleed. When J.S. told Schneider she wanted to stop having sex, Schneider told her he would kill her if she told anyone about the abuse. Schneider also told J.S. he had been "fixed" so they did not need to use condoms. J.S. reported, accurately, that Schneider is circumcised.

J.S. stated in some interviews that Elizabeth's ex-partner molested her when she was five years old. She told Schneider about this abuse. In 2011, Schneider took her to an appointment with a mental health counselor. During the session, she told the counselor that Schneider had not abused her. J.S. also spoke to Annetta Spicer, formerly Schneider's family law lawyer, as part of a child custody dispute between Schneider and his ex-wife, Jessica. Spicer told J.S. that Jessica's sister, A.S., had alleged Schneider abused her.

J.S. told her mother about Schneider's abuse in October 2011. He had last raped her about two weeks earlier, after he and Elizabeth had separated. The next week, J.S. reported the rapes during a sexual assault examination with Nurse Joanne Mettler who testified at trial. Schneider's counsel did not present a medical expert at trial. The trial court admitted A.S.'s testimony that Schneider raped her when she was a young girl. It found that the alleged rapes of A.S. and J.S. were "markedly similar" and ruled that the State could present evidence of the earlier rapes to show "a general plan, a design to fulfill [Schneider's] sexual compulsions." A.S. testified at length about Schneider's abuse.

ANALYSIS

Schneider claims that his trial counsel provided ineffective assistance because counsel did not retain a medical expert or present expert medical testimony controverting Nurse Mettler's testimony. We disagree.

To receive collateral relief by a PRP, a defendant must show either an error of constitutional magnitude that caused actual prejudice or a nonconstitutional error that resulted in a "'complete miscarriage of justice.'"² An ineffective assistance of counsel claim alleges a claim of constitutional magnitude. The Sixth Amendment to the United States Constitution and article I, section 22 of the Washington Constitution guarantee the right to effective assistance of counsel to help ensure a fair trial.³

Claims of ineffective assistance present mixed questions of law and fact, which this court reviews de novo.⁴ When this court examines an ineffective assistance claim, it strongly presumes that counsel provided effective representation.⁵ To succeed on an ineffective assistance claim, the defendant must show that (1) his counsel's performance fell below an objective standard of reasonableness and (2) prejudiced him.⁶ Counsel's performance is deficient if it was unreasonable under prevailing professional norms and was not sound trial strategy.⁷ This court evaluates the reasonableness of counsel's performance from "'counsel's perspective at the time of the alleged error and in light of all the circumstances.'"⁸ To establish prejudice, a defendant must show a reasonable probability that the result of the trial would have been different without his counsel's deficient performance.⁹ "A reasonable probability is a probability sufficient to undermine confidence in the outcome."¹⁰ In a PRP proceeding, a defendant who shows ineffective assistance has necessarily met his burden to receive collateral relief.¹¹

Here, the State presented the testimony of Mettler, an advanced registered nurse practitioner at the Harborview Center for Sexual Assault and Traumatic Stress. Mettler testified about her credentials, including a bachelor's degree in nursing, a master's degree in maternal child health, and a post-certificate as a pediatric nurse. She also testified about her extensive experience. She had been in her current position for 15 years and performed medical evaluations of children when there are concerns of abuse. Before working at Harborview, she practiced as a nurse for 15 years in various capacities, some involving treating patients who were sexually abused. She testified that she keeps up-to-date with the medical literature relevant to evaluating and treating sexual abuse patients.

Mettler stated that she performed a full-body exam of J.S. on November 3, 2011. She used a magnifying tool called a colposcope to check J.S.'s genital and anal areas. Mettler concluded that J.S. had a "normal genital examination," meaning Mettler did not observe any sign of infection, acute injury, or healed injury. And she did not find any sexually transmitted diseases. She testified that because a female's genital area heals "really quickly," this result did not mean that J.S. had never had vaginal sex. She explained that the hymen, which sits at the opening to the vagina, does not "disappear[ ]" when a woman has vaginal sex. So the fact that J.S.'s hymen looked "very thick and very wavy and redundant" is not indicative of an absence of penetration. She testified that a woman could give birth to two children and have no visible evidence of scarring or tearing. Mettler explained that 98 percent of the time she finds no evidence of any kind of injury in the vaginal or anal tissues in patients who claim sexual abuse. During cross-examination, she stated that although she did not assess J.S. for "notches," a V-shape in the hymen resulting from penetration, she has seen notches in some patients.

Mettler also stated that J.S. had two small anal fissures or tears to the skin, which generally heal within 48 to 72 hours. Because J.S. told Mettler the last time she had seen Schneider was a month before her examination, Mettler reported that the fissures were not related to any assault that may have occurred when J.S. last saw him.

Schneider contends that his trial counsel's decision not to hire or call a medical expert witness was not a legitimate trial tactic because "[a]ny reasonably competent attorney would have located a medical expert who could testify regarding these medical findings and the importance of this evidence and Nurse Mettler's testimony." We address the failure to hire an expert witness claim first.

Schneider acknowledges that generally, "the decision whether to call a witness is a matter of legitimate trial tactics and will not support a claim of ineffective assistance of counsel."¹² But Schneider emphasizes that the Washington Supreme Court has stated, "depending on the nature of the charge and the issues presented, effective assistance of counsel may require the assistance of expert...