In re Personal Restraint of Cain

IN RE THE MATTER OF PERSONAL RESTRAINT OF RICHARD ELLIOTT CAIN

No. 37289-8-III

Court of Appeals of Washington, Division 3

May 6, 2021

UNPUBLISHED OPINION

FEARING, J.

In this personal restraint petition, Richard Cain asserts that his trial counsel performed deficiently when failing to forward one argument in support of a motion to suppress, when failing to reference ER 105 when seeking a limiting instruction, and when waiving a second presentence investigation report. We hold that trial counsel performed ineffectively only when failing to cite the applicable evidentiary rule, but that such error did not cause Cain prejudice. We dismiss his personal restraint petition.

FACTS

We take most of our factual recital from our earlier decision in State v. Cain, No. 34417-7-III (Wash.Ct.App. Mar. 8 2018) (unpublished), https://www.courts.wa.gov/ opinions/pdf/344177_unp.pdf. We assign fictitious names to the alleged minor victim and her two siblings.

Petitioner Richard Cain and Lisa Madson engaged in a sporadic relationship from 2004 to 2010. Madson had two children borne of a prior relationship: the alleged victim Erin, a girl born in 1999, and a boy Uriah, born in 2002. When cohabitating Cain and Madson resided in various homes, the latest of which was Cain's Prosser mobile home. In March 2009, Madson bore Cain's daughter, Julie.

Lisa Madson worked various jobs in Prosser while cohabitating with Richard Cain. Cain spent time alone with the children due to Madson's work schedule. Not long after Julie's first birthday in 2010, Madson and Cain separated permanently, with Madson and the three children moving into a Prosser apartment. Cain thereafter occasionally came to the apartment to care for the children in Madson's absence.

The State contended at trial that Richard Cain's sexual practices bore relevance to his prosecution. Cain frequently tied girlfriend Lisa Madson for his sexual gratification during intercourse. Cain possessed ropes, ties, and handcuffs to bind either Madson's hands or feet depending on the couple's desired sexual position. Cain admitted during trial testimony that he enjoys restraining a woman during sex if the woman desires such.

Erin cannot recollect specific dates that Richard Cain molested her, but stated that the abuse occurred from July 2006 to April 2011, when Erin was between ages six and ten. The abuse occurred in a series of residences, in which Cain, Lisa Madson, and Madson's children resided.

According to Erin, Richard Cain first sexually touched her after school one day during her mother's absence. Erin, as part of her weekday routine, finished her homework and watched television when Cain hoisted Erin, carried her into Cain's bedroom and placed her on his bed. During trial testimony, Erin described the first act of molestation as Cain rubbing his penis against her vagina and buttocks. She did not respond for fear of being physically struck.

During trial, Erin described the abuse from Richard Cain as ongoing. She recalled situations when Cain placed his mouth on or around her pelvic region, placed her hand on his penis, and rubbed his penis in and around her buttocks and genitals. Erin also testified that Cain bound her hands with the tie from her mother's robe and then touched her genitals.

During trial testimony, Uriah Madson remembered Richard Cain and Erin spending time after school locked inside Cain's bedroom. Joanne Carow, Lisa Madson's mother, testified that she noticed Cain showing Erin more affection than Uriah and remembered Erin and Cain once snuggled on the couch while Erin wore no shirt.

After separating from Richard Cain, Lisa Madson discovered, in her apartment, a drawing of a human body with a penis. A perturbed Madson confronted Erin and Uriah as to the drawer of the image. Uriah admitted to drawing the picture. Lisa then asked her two oldest children if either had been touched inappropriately, and Erin responded affirmatively. After Erin disclosed the abuse, Madson destroyed the robe from which Cain took the tie to bind Erin's hands.

Lisa Madson informed law enforcement of Erin's disclosure of sexual misconduct of Richard Cain. Law enforcement then conducted a forensic interview and a physical examination of Erin. Law enforcement thereafter arrested Cain.

Detective Scott Runge of the Benton County Sheriff's Office sought and obtained a warrant to search Richard Cain's mobile home on June 15, 2011. At approximately 7:00 a.m. on June 16, 2011, Detective Runge and other officers executed the search warrant. Cain remained in jail at the time. When law enforcement arrived at Cain's home, the search warrant did not list the specific items to be seized.

According to Detective Scott Runge's report, he and other officers performed a security sweep of the exterior of the property. Officers then entered Richard Cain's home, in which they found dozens of marijuana plants. Runge explained in his report:

After it was determined that the house was empty and secured we exited the residence so I could perform an amendment to the search warrant [to include the marijuana].

As I was attempting to locate Judge Mitchell, Detective Magnuson took a look at the search warrant. He noted that I forgot to list the specific items to be seized in the search warrant. The items listed were in the affidavit but not the search warrant itself. I told him that I would contact Judge Mitchell to make the correction.

As I made numerous phone calls I learned that Judge Mitchell was not scheduled until 0900hrs for Franklin County. I requested that the clerks attempt to call him on his cell phone and pass him a message for him to call me.

Personal Restraint Petition (PRP), Exhibit B. Detective Runge's report continues:

At approximately 0840hrs, I received a phone call from Judge Mitchell. I went over the mistake I had made on the search warrant and he stated that he must have missed it too. I asked him if he would be okay to telephonically request permission to fix the warrant and to request the amendment for the warrant regarding the Marijuana. Judge Mitchell stated that would be fine.

Clerk's Papers (CP) at 120.

Detective Erik Magnuson's report coincides with Detective Runge's report:

I told case agent Runge about the [marijuana] odor and then continued to the door on the east side of the house. . . . While conducting this safety sweep I noticed over 20 plants being grown that I immediately recognized through my training and experience as Marijuana plants in the master bathroom. . . . After the house was secured I told case agent Runge about my observations. We all exited the residence and Detective Runge started working on amending the search warrant before we did any searching. While he was working on amending the search warrant[, ] I walked around the outside of the house.

CP at 114. Detective Larry Smith's report is also consistent with Detective Runge's report:

While securing the residence three marijuana grow rooms were locate[d] with in [sic] the home containing more than the 15 plants allowed for a Medical Marijuana grow. All officers left the residence at that time and waited for Det. Runge to obtain an addendum to the original warrant.

CP at 117.

At 8:50 a.m., Judge Mitchell granted approval to amend the warrant. With the amendment, the search warrant authorized officers to seize the following evidence related to Richard Cain's alleged crimes against Erin:

(1) Pictures of the residence and bedroom of Richard Elliot Cain (6/11/15);

(2) Rope, scarves, ties or any other device that can be used for binding;

(3) Any VHS, 8 mm, photographs, electronic storage devices to include but not limited to computers, hard drives, CDs, floppy disks, diskettes, iPods, cell phones w/ camera feature, and flash drives that could be used to store any depictions of child pornography;

(4) Documents of dominion. CP at 113.

During the search of Richard Cain's residence, officers photographed bondage instruments, including handkerchiefs, scarves, belts, a ball gag, handcuffs, nylon bindings, ropes, a leather whip, and a paddle. The property inventory from the search outlined all items seized from Cain's residence. At the bottom of each page, Detective Scott Runge listed the date and time as June 16, 2011, 8:30 a.m., 20 minutes prior to the approval of the search warrant's amendment. Detective Runge addressed the inventory log in his declaration:

I have also reviewed the inventory log showing that listed [sic] the date and time of the inventory at 8:30 am. At this point, almost 9 years later, I cannot remember exactly why I put the time as 8:30 am. Possibly, this was the time when entry was made into the house to conduct the security sweep. Possibly, I made an error. However, I am positive that law enforcement did not begin searching the premises, other than the security sweep, before the search warrant was amended to include the specific items to be seized pursuant to the child rape investigation.

Response to Personal Restraint Petition, Appendix G at 35.

PROCEDURE

The State of Washington charged Richard Cain, by second amended information, with one count of rape of a child in the first degree and one count of child molestation in the first degree. For both counts, the State alleged the aggravating circumstance of a position of trust.

Richard Cain's first trial resulted in a hung jury. The jury in Cain's second trial found him guilty on both counts. After Richard Cain's conviction, the Washington Department of Corrections (DOC) completed a presentence investigation report and recommended a sentence within the standard range. The trial court later granted Cain's motion for a new trial because of a violation of right to counsel during the second trial. The same superior court judge presided over the first...