State Of Washington, V Ryan Dee Whitaker ( 2014 )


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    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON &
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    STATE OF WASHINGTON
    DIVISION ONE
    Respondent,                 No. 71666-2-1
    v.                               UNPUBLISHED OPINION
    RYAN DEE WHITAKER
    Appellant.                  FILED: July 7, 2014
    Dwyer, J. — After a trial to the court, sitting without a jury, Ryan Whitaker
    was found guilty of two counts of child molestation in the first degree. Whitaker
    appeals, raising the following issues: (1) whether the trial court erred by allowing
    the child victim's counselor to give expert testimony; (2) whether he was denied
    the effective assistance of counsel by virtue of his trial attorney's failure to
    properly object to the counselor's testimony; (3) whether the trial court erred by
    declining to personally visit the scene of the crime; (4) whether the trial court
    erred by entering a no-contact order effective for 100 years; (5) whether he was
    denied effective assistance of counsel because his trial attorney did not interview
    or summon to court several potential witnesses; (6) whether the functions of the
    Indeterminate Sentence Review Board were unlawfully included in the pertinent
    No. 71666-2-1/2
    bill passed by the legislature; (7) whether the trial court erred by imposing as a
    condition of his sentence that he submit to plethysmograph testing at the
    direction of his community corrections officer; (8) whether the information
    charging Whitaker was deficient because it did not allege that he acted for his
    sexual gratification as an element of the offense of child molestation in the first
    degree; and (9) whether the trial court erred by overruling his challenge to the
    sufficiency of the evidence brought at the conclusion of the State's case in chief.
    We hold that the plethysmograph testing condition was improper and,
    accordingly, reverse that part of his sentence with instructions to the trial court to
    modify that condition on remand. In all other respects, we affirm the judgment
    and sentence.
    Whitaker also filed a personal restraint petition, which was consolidated
    with his direct appeal. In his petition, Whitaker argues that his counsel's failure to
    interview or to call as witnesses three classmates of the child victim constituted
    ineffective assistance of counsel.1 Even had Whitaker's counsel rendered
    deficient performance, however, Whitaker fails to establish that he suffered any
    resulting prejudice. Accordingly, we dismiss the petition.
    I
    In 2011, Whitaker was a member of the St. John's Ward of the Church of
    Latter Day Saints, located in Vancouver, Washington. Whitaker was also a
    1Whitaker also raises this issue in his direct appeal. We resolve the issue in the context
    ofthe personal restraint petition because it contains additional factual averments. However,
    whether we analyze the issue pursuant to the standard ofreview applicable todirect appeals or
    pursuant to the personal restraint petition standard of review, our result isthe same in this case.
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    No. 71666-2-1/3
    teacher of primary school students. Between January 2011 and August 2011,
    his class of approximately eight students included the nine year old victim, M.S.
    Every Sunday, the students at the church would gather for instruction in a
    large meeting room—the "sharing time" room. M.S.'s class would sit in the very
    back of the room. M.S. would frequently sit next to Whitaker, either because he
    asked her to sit next to him or because he took the seat next to her. During the
    time the students were in the "sharing time" room, they would be facing forward,
    toward the front of the room, where someone would lead them in song or would
    preach to them.
    M.S. testified at trial that Whitaker would reach under her skirt and touch
    her vagina with his hand while they were in the "sharing time" room. She stated
    that he touched her in this manner every Sunday and that the other children did
    not see what he was doing.
    M.S. also testified that, on another occasion, Whitaker asked her to stay
    behind and help him in a small classroom. Once they were alone, Whitaker
    kneeled down and touched her vagina with his hand over her dress for 10
    seconds. Whitaker asked M.S. if it made her uncomfortable when he touched
    her. Although she did not respond to his question, she testified that it made her
    feel "weird" and she decided to tell her mother what had happened. That night,
    in August 2011, she told her mother what had been happening to her.
    Subsequently, the State charged Whitaker with one count of rape of a
    child in the first degree and three counts of child molestation in the first degree.
    Whitaker waived his right to a jury trial and the case was tried before the
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    No. 71666-2-1/4
    Honorable Robert Lewis.
    At trial, Whitaker denied that he ever touched M.S. inappropriately. He
    called numerous witnesses to testify that it would have been impossible for him
    to do what M.S. had described. Steven Gonsalves,2 Laurie Ogden, and Pamela
    Wise—three fellow teachers—all testified that Whitaker could not have touched
    M.S. in the "sharing time" room without being noticed. Paul and Michelle
    Pecora—the parents of a child in Whitaker's class—provided similar testimony.
    Other students in Whitaker's class, including K.C., K.O., and J.K., were
    not subpoenaed by the defense to testify. These three children were each
    interviewed by Cynthia Bull, the investigating officer. Although the interviews
    were not included in her police report, they were made available to defense
    counsel in the form of CD recordings. While defense counsel did not call these
    children as witnesses, she did try to enter the contents of the interviews into
    evidence in an attempt both to impeach Detective Bull and to present exculpatory
    evidence. The trial court, however, did not admit the contents of the interviews.
    Danielle Wilcox testified as an expert witness for the State. She is a
    family and child therapist with the Children's Center and she was M.S.'s
    counselor following her disclosure of sexual abuse. Although Whitaker's defense
    counsel objected, the trial court permitted Wilcox to offer an opinion as to
    whether M.S. expressed feelings that were consistent with someone who had
    experienced a traumatic event such as sexual abuse. She was not, however,
    2 Gonsalves served as a co-teacher with Whitaker on four Sundays and, on those days,
    sat with Whitaker's class in the back two rows.
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    No. 71666-2-1/5
    permitted to testify as to any statements M.S. made or offer an opinion as to
    whether M.S. had, in fact, been sexually abused.
    Whitaker requested that the trial judge view the site of the alleged crimes,
    but the judge declined to do so.
    Judge Lewis entered findings of fact and conclusions of law, in which he ruled
    that the defendant was guilty of two counts of child molestation in the first
    degree. His findings and conclusions, in their entirety, are as follows:
    I.   FINDINGS OF FACTS
    1. Between January 1, 2011 and August 31, 2011, the
    defendant was a Sunday school teacher in the Church of Latter
    Day Saints, St. John's Ward. M.L.S. was a female child in the
    defendant's class during that time. On or between those dates, the
    defendant massaged the vagina of M.L.S. with his hand on at least
    two occasions.
    2. On at least one occasion, the defendant touched M.L.S. in
    the larger "sharing time" room. The defendant would often have
    M.L.S. sit with him in the back row of the classroom. When he
    would touch her he would use his jacket to hide his actions, either
    putting it across their laps, or behind her. He then massaged her
    vagina and buttocks with his hand. He massaged her vagina and
    buttocks both over her tights, and under her clothing, on her skin.
    3. Another incident occurred in the smaller classroom. The
    defendant had asked M.L.S. to stay behind to run an errand for
    him. When they were alone, he knelt in front of her. He asked her
    why she wasn't wearing her tights that day. He proceeded to
    massage her vagina with his hand over her dress. He asked
    M.L.S. if it made her feel uncomfortable when he would touch her.
    This incident prompted M.L.S. to tell her mother.
    4. M.L.S. eventually disclosed the touching to her mother in
    August 2011. She approached her mother, Arica Smith, and told
    her that she needed to talk to her.
    5. The defendant had no legitimate reason to touch M.L.S's
    vagina or buttocks.
    6. M.L.S.'s date of birth is August 13, 2002. She was eight or
    nine years old at the time of the offense.
    7. The defendant's date of birth is November 7, 1953. He was
    fifty-seven at the time of the offenses.
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    No. 71666-2-1/6
    II. CONCLUSIONS OF LAW
    1. The court has jurisdiction over the parties hereto and the
    subject matter of the action.
    2. All of the above facts have been proven by the State beyond
    a reasonable doubt.
    3. On two separate and distinct occasions, on or between
    January 1, 2011 and August 31, 2011, the defendant had sexual
    contact with M.L.S. M.L.S. was less than twelve years old at the
    time of the sexual contact and was not married to, or in a state-
    registered domestic partnership with, the defendant. The
    defendant was at least thirty-six months older than M.L.S.
    4. The touching was of a sexual or intimate part of M.L.S., done
    for the purpose of gratifying sexual desires of either party.
    5. The defendant is guilty of Child Molestation in the First
    Degree as alleged in count three of the information.!31
    6. The defendant is guilty of Child Molestation in the First
    Degree as alleged in count four of the information.[4]
    7. At least one separate act of sexual contact between the
    defendant and M.L.S., pertaining to each count, has been proved
    beyond a reasonable doubt.
    8. A defendant used a position of trust to facilitate a crime. The
    defendant gained access to the victim of the offense, M.L.S.,
    because of the trust relationship. The defendant also gained
    access to the location of the offense, the Sunday school
    classrooms at the St. John's Ward of the Church of Latter Day
    Saints, because of the trust relationship.
    9. The defendant is not guilty of Rape of a Child in the First
    Degree, as alleged in count one, and Child Molestation in the First
    Degree, as alleged in count two.
    On March 5, 2013, Whitaker was sentenced to a minimum of 89 months in
    prison and a maximum sentence of life imprisonment. He was also sentenced to
    lifetime community custody. Additionally, the trial court imposed a sexual assault
    3"That he, RYAN DEE WHITAKER, in the County of Clark, State of Washington,
    between January 1, 2011 and August 31, 2011, on an occasion separate and distinct from that
    charged in Counts 2 and 4 . . . ."
    4"That he, RYAN DEE WHITAKER, in the County of Clark, State of Washington,
    between January 1, 2011 and August 31, 2011, on an occasion separate and distinct from that
    charged in Counts 2 and 3 . . . ."
    -6
    No. 71666-2-1/7
    protection order effective for 100 years.
    Whitaker appealed and filed a personal restraint petition that was
    consolidated with his direct appeal. We address both herein.
    II
    Whitaker first contends that the trial court erred by permitting Wilcox to
    testify as an expert witness and that Wilcox offered improper testimony. This is
    so, he avers, because her testimony was based upon principles not generally
    accepted in the scientific community as required by Frve v. United States. 
    293 F. 1013
    (D.C. Cir. 1923). However, because Whitaker has failed to overcome the
    presumption that—in a bench trial—the trial court disregards inadmissible or
    incompetent evidence when ruling, no appellate relief is warranted.
    "A trial court's decision to admit expert testimony is reviewed for abuse of
    discretion." State v. Kirkman. 
    159 Wash. 2d 918
    , 927, 
    155 P.3d 125
    (2007).
    "An expert's scientific or technical testimony must be based upon a
    scientific principle or explanatory theory that has gained general acceptance in
    the scientific community." State v. Jones. 
    71 Wash. App. 798
    , 814, 
    863 P.2d 85
    (1993). "Under Frve, generalized testimony regarding a profile of behaviors of
    victims of sexual abuse must be sufficiently established to have gained general
    acceptance by the scientific community." 
    Jones. 71 Wash. App. at 818
    . "[Tjhe use
    of generalized profile testimony, whether from clinical experience or reliance on
    studies in the field, to prove the existence of abuse is insufficient under Frve."
    
    Jones. 71 Wash. App. at 820
    . Such evidence may be presented, however, "to
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    No. 71666-2-1/8
    rebut an inference that certain behaviors of the victim, such as sexual acting out,
    are inconsistent with abuse." 
    Jones. 71 Wash. App. at 820
    .
    It is significant that, in this case, no jurywas empanelled. "'In bench trials,
    judges routinely hear inadmissible evidence that they are presumed to ignore
    when making decisions.'" State v. Read, 
    147 Wash. 2d 238
    , 245, 
    53 P.3d 26
    (2002)
    (quoting Harris v. Rivera. 
    454 U.S. 339
    , 346, 
    102 S. Ct. 460
    , 
    70 L. Ed. 2d 530
    (1981)). As our Supreme Court has explained:
    "In the trial of a nonjury case, it is virtually impossible for a
    trial judge to commit reversible error by receiving incompetent
    evidence, whether objected to or not. An appellate court will not
    reverse a judgment in a nonjury case because of the admission of
    incompetent evidence, unless all of the competent evidence is
    sufficient to support the judgment or unless it affirmatively appears
    that the incompetent evidence induced the court to make an
    essential finding which would not otherwise have been made."
    
    Read. 147 Wash. 2d at 245
    (quoting Builders Steel Co. v. Comm'r of Internal
    Revenue. 
    179 F.2d 377
    , 379 (8th Cir. 1950)).
    When the State called Wilcox as an expert witness, Whitaker's defense
    counsel objected on the basis thatWilcox had not been disclosed as an expert
    witness. The trial court, however, allowed Wilcox to testify as an expert witness,
    subject to certain restrictions on the scope of her testimony.
    I will allow—if she believes she can make—express such
    opinions Ms. Wilcox to indicate in general the sorts offeelings since
    she's indicated—she's already indicated in her previous Offer of
    Proof that she's not a forensic person, that she believes that—or
    assumes that if a child says they've been sexually abused, then
    they were—she accepts that assumption.
    So she at least has indicated she can't—and makes no
    attempt to determine whether the person, in fact has been sexually
    abused based on what they're expressing.
    If she is in a position to testify that there are certain feelings
    -8-
    No. 71666-2-1/9
    or emotions that sexual abuse victims express and that [M.S.]
    expressed—without going into the details of her statements—
    expressed similar statements, then she's permitted to testify as to
    that.
    Absent some other showing that in fact I'm not being told
    and I don't think I would allow her to testify that based on what
    [M.S. is] saying, she's concluding that she was, in fact sexually
    abused. Only that those expressions of feelings are consistent with
    a person that—in her expert opinion has experienced some
    traumatic event like sexual abuse.
    Whitaker's defense counsel objected again, directing the trial court's
    attention to this court's decision in Jones and arguing that Jones precluded the
    testimony that the trial court was allowing.5 Specifically, defense counsel stated:
    In a prosecution for molestation and rape of a child the court
    allowed a case worker to testify about the child's nightmares and
    the child's propensity to act out as they were common behaviors of
    essentially abused children, behaviors collectively called
    sometimes the sexual abuse syndrome.
    The Defendant was convicted and appealed and argued the
    testimony should have been excluded based upon the Frve rule.
    Division 1 terms the issue difficult and reached something of a
    compromise holding that evidence of sexual abuse syndrome is
    objectionable under Frve when offered to prove the fact of abuse.
    And it would appear that they're trying to enter this
    information to indicate that this is a child of abuse which is not
    relevant when the therapist has already testified that she wouldn't
    know the difference between someone alleging abuse that happens
    and alleging abuse that didn't happen.
    The judge then asked the prosecutor whether he was offering testimony
    as to sexual abuse syndrome. The prosecutor responded that he was not
    offering testimony as to sexual abuse syndrome.
    5On appeal, the State argues that Whitaker failed to preserve this issue for review. This
    is so, it claims, because Whitaker did not object after the trial court clarified that Wilcox could only
    testify as to whether M.S. had feelings that were consistentwith someone who had experienced
    trauma, such as sexual abuse. The State's position is untenable. It was not incumbent upon
    Whitaker to interpose duplicative objections to the admission of Wilcox's testimony. The issue
    was properly preserved for review.
    -9-
    No. 71666-2-1/10
    No I am not. I believe that that particular syndrome does not
    meet the criteria so I'm not offering the name of the syndrome or
    that these—these—in fact these characteristics make up that
    syndrome as I'm familiar with it, and they do not.
    So they are some of the characteristics but they are not the
    full syndrome and the syndrome we're not asking for here.
    The trial court did not change its ruling. However, the judge told defense
    counsel that if "after the testimony you think there's some additional piece of
    evidence that came in that you wish me to move me to strike, I will listen to your
    argument at that time."
    On direct examination, the prosecutor asked Wilcox whether she had "an
    opportunity to make any observations with regard to something called
    traumagenic dynamics." Wilcox said that she had and she defined "traumagenic
    dynamics" as follows:
    Traumagenic dynamics are—well there's four specific traumagenic
    dynamics outlined by David Finklehore (ph), PhD and Angela
    Brown, PhD.
    And it's stigma, powerlessness, traumatic sexualization and
    betrayal. And these are four symptoms or dynamics that come up
    for children who have experienced sexual abuse.
    And what they—what they do is an altering cognitive and
    emotional orientation to the world and creating trauma by distorting
    self-concept world view and effective capacities.
    Wilcox then testified that she had observed all four of these dynamics in her
    treatment of M.S.
    In light of our decision in Jones, the trial court's decision to admitWilcox's
    testimony is troubling. Although the State asserted to the trial judge that it was
    not attempting to elicit testimony regarding sexual abuse syndrome, on appeal
    the State failed to articulate a distinction between sexual abuse syndrome and
    10
    No. 71666-2-1/11
    "traumagenic dynamics." The testimony elicited from Wilcox appears to be
    generalized profile testimony being offered to prove the existence of abuse,
    which is the type of testimony foreclosed by Jones.
    However, even if the trial court did abuse its discretion in making its
    evidentiary ruling, Whitaker has not overcome the presumption that the trial court
    did not rely on the inadmissible evidence in rendering its decisions on guilt. In
    order to do so, he must establish either that all of the competent evidence
    received was insufficient to support the convictions or that the incompetent
    evidence induced the trial court to make an essential finding that it otherwise
    would not have made. Although the trial court did not credit the entirety of M.S.'s
    testimony—as evidenced by the acquittal on two counts charged in the second
    amended information—the testimony that was credited was sufficient to support
    Whitaker's conviction on two counts. Furthermore, contrary to Whitaker's
    position, the trial court's decision to acquit Whitaker on two counts does not show
    that Wilcox's testimony induced the court to make an essential finding that
    otherwise would not have been made. Had Wilcox's testimony had the effect
    claimed by Whitaker, presumably the trial court would have convicted Whitaker
    on all four counts. Yet, Whitaker provides no explanation as to why Wilcox's
    testimony induced the trial court to convict on two counts and to acquit on two
    others. Indeed, Wilcox's testimony is not referenced at all in the trial court's
    findings of fact.
    The record supports the conclusion that the trial court was well-versed as
    to the evidentiary dangers addressed in our Jones decision, and the trial judge
    -11 -
    No. 71666-2-1/12
    was careful not to allow Wilcox to testify as to what had actually happened
    between M.S. and Whitaker or what M.S. had said to her about that. The trial
    court was well aware of its obligation to not allow Wilcox to "vouch" for M.S. as a
    witness. Given the care taken by the trial court in ruling on the various questions
    raised by Wilcox's proffered testimony, there is no reason for us to believe that
    the trial court put Wilcox's testimony to an improper use. Because Whitaker has
    failed to rebut the presumption that the trial court did not rely on inadmissible or
    incompetent evidence in reaching its findings as to guilt, no appellate relief is
    warranted.6'7
    III
    Whitaker next contends that the trial court abused its discretion by not
    viewing the scene of the crime. This is so, he asserts, because a view "could
    only serve to clarify and dispel" the contradictory and confusing testimony offered
    regarding the "sharing time" room. We disagree.
    "Under CrR 6.9, the trial court is given the discretion to allow the jury to
    view the crime scene." State v. Land. 
    121 Wash. 2d 494
    , 501, 
    851 P.2d 678
    (1993).
    Accordingly, "[a] trial court's refusal to permit a jury view is reviewed under an
    abuse of discretion standard." 
    Land. 121 Wash. 2d at 502
    . "The purpose of
    permitting a jury to view the crime scene is to enable it to better understand the
    6Whitaker also argues that Wilcox improperly testified that she believed that M.S. was
    telling the truth about being molested and that itwas her personal opinion that Whitaker molested
    M.S. This argument is based on testimonyWilcox gave during an offerof proof. There is no
    danger that the trial court improperly relied on such testimony in reaching its final decisions.
    7Whitakeralso argues that, in the event that we conclude that his counsel failed to
    properly interpose an objection to the admission ofWilcox's testimony, his counsel's assistance
    was ineffective. Given our conclusion that defense counsel properly preserved this issue for
    review, we need not consider this argument.
    -12-
    No. 71666-2-1/13
    evidence produced in court." 
    Land. 121 Wash. 2d at 501-02
    . The same concern
    applies to the trial court's decision as to whether a view of the scene would be
    beneficial to the judge in a bench trial.
    In denying Whitaker's request, the trial court observed that viewing the site
    would not reveal anything that would constitute evidence and that viewing the
    site would be necessary only if there was confusion about the testimony or
    evidence presented. Although Whitaker asserts that the trial court received
    directly contradictory evidence "as to who could see what, and from where,"
    Whitaker cites to nothing in the record to support this contention or to
    demonstrate why the trial court was disabled from correctly determining which
    evidence was credible. This decision fell squarely within the trial court's
    discretion. There was no error.8
    IV
    Whitaker next contends that the sexual assault protection order issued by
    the trial court is void on its face. This is so, he argues, because although the
    pertinent statute sets forth an indeterminate duration for such orders, the trial
    court issued an order that would expire on a specific date. We disagree.
    We review a trial court's imposition of sentencing conditions for abuse of
    discretion. State v. Deskins. 
    180 Wash. 2d 68
    , 77, 
    322 P.3d 780
    (2014). A trial
    court abuses its discretion when its decision is manifestly unreasonable or based
    8Whitaker's duplicative argument contained within his statement of additional grounds is
    also of no avail.
    -13-
    No. 71666-2-1/14
    on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker.
    
    79 Wash. 2d 12
    , 26, 
    482 P.2d 775
    (1971). Sentencing conditions are generally
    upheld if they are reasonably crime related. State v. Riley. 
    121 Wash. 2d 22
    , 36,
    
    846 P.2d 1365
    (1993). An order prohibiting contact with the victim of a crime is a
    crime-related prohibition. In re Pers. Restraint of Rainev. 
    168 Wash. 2d 367
    , 376,
    
    229 P.3d 686
    (2010).
    In conjunction with the trial court's authority under RCW 9.94A.505(8),9 a
    statute specifically authorizes issuance of a separate sexual assault protection
    order if no contact with the victim is imposed as a condition of a defendant's
    sentence. See RCW 7.90.150(6)(a). This statute allows the trial court to impose
    an order prohibiting the defendant from having contact with the victim for a period
    of time to include two years following expiration of a sentence or period of
    community supervision. The statute provides:
    (6)(a) When a defendant is found guilty of a sex offense as
    defined in RCW 9.94A.030 . . ., and a condition of the sentence
    restricts the defendant's ability to have contact with the victim, the
    condition shall be recorded as a sexual assault protection order.
    (c) A final sexual assault protection order entered in
    conjunction with a criminal prosecution shall remain in effect for a
    period of two years following the expiration of any sentence of
    imprisonment and subsequent period of community supervision,
    conditional release, probation, or parole.
    RCW 7.90.150.
    Whitaker was sentenced to an indeterminate sentence that, among other
    things, included lifetime community custody. Issuing an order with an expiration
    9This provision empowers a sentencing court, as a part of any sentence, to impose and
    enforce crime-related prohibitions and affirmative conditions.
    -14-
    No. 71666-2-1/15
    date set 100 years in the future guarantees that the victim will be protected for as
    long as Whitaker remains alive, whether he remains in prison or is released on
    community custody. This achieves the statute's goal. The trial court did not
    abuse its discretion.
    V
    In his personal restraint petition, Whitaker contends that he received
    ineffective assistance of counsel. This occurred, he avers, because his counsel
    failed to interview and subpoena as witnesses three classmates of M.S. We
    disagree.
    As part of her investigation, Detective Bull interviewed K.C., K.O., and
    J.K.—three classmates of M.S. The interviews were recorded and transcribed.
    During K.C.'s interview, he told Detective Bull that in the sharing time
    room, M.S. would sit on one side of Whitaker and he would sit on the other. He
    said that Whitaker usually kept his jacket on but that he would give it to someone
    else to wear ifthat person was cold. K.C. said that Whitaker never gave his
    jacket to M.S. When asked why not, K.C. said that it was because "she'd (sic)
    mostly not at church because she was gone for three months." When told to
    focus on the relevant time period, he said that M.S. never wore Whitaker's jacket.
    He immediately changed his mind and said that M.S. did wear Whitaker's jacket.
    Ultimately, K.C. opined that he did not really know ifWhitaker's jacket was ever
    on M.S.'s lap. K.C. never saw Whitaker touch M.S. or any other child
    inappropriately.
    15
    No. 71666-2-1/16
    K.O. said she never saw Whitaker take his jacket off because it did not get
    hot in class. She said Whitaker never did anything to make her feel
    uncomfortable. She said that Whitaker sat in the last row, whereas she
    sometimes sat in the first of their two rows. When asked if there was anyone in
    particular who usually sat next to Whitaker, she said, "just girls—he wanted the
    girls." She said M.S. usually sat by herself, by K.O., or by another girl. Contrary
    to her earlier statement, she said that Whitaker did, in fact, take his jacket off in
    class sometimes. He would put the jacket on the back of a chair. She said that
    he would do that in the smaller classroom and she would not notice what he did
    in the sharing room.
    J.K. told Detective Bull that Whitaker sat in the back row during the
    sharing hour. She said that everybody sat next to Whitaker and that M.S. sat
    next to Whitaker a lot. She said that Whitaker would sometimes take his jacket
    off and put it on the back of a chair. She said that he never put his jacket on
    someone's lap, but then said she would not have seen what he did with his jacket
    because she would not have been looking. She said that sometimes Whitaker
    would tickle a student on the middle of the student's back. M.S. was one of the
    students he tickled. J.K. thought that Whitaker only tickled her and M.S. When
    he tickled J.K., he would do it from behind her in the big primary class. When
    asked if Whitaker ever asked her to do something that she did not think was
    okay, J.K. said she did not remember.
    Detective Bull asked J.K. whether she ever saw Whitaker touch M.S.'s leg
    and she said, "I don't know." Bull asked J.K. if there was anything about
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    No. 71666-2-1/17
    Whitaker that made her uncomfortable, about how he acted or what he did, to
    which she replied: "In primary if I was sitting next to him he would sort of do this
    over the chair (moves arm as though putting it on the back of a chair)." Bull
    asked J.K ifthere was anything she did not like about Whitaker and she shook
    her head "no." She was then asked if there was anything she did like about
    Whitaker and she again shook her head "no." Bull asked, "Is there—have you
    ever told anybody about having any problems with him?" J.K. shook her head
    "no." Bull then asked, "Okay. Is that something you could tell somebody?" J.K.
    shook her head "no." Bull then told J.K. that she could tell her anything and she
    would not get in trouble, to which J.K. nodded her head. Bull then asked, "So—is
    there anything that we should talk about?" J.K. replied, "I don't know" and
    shrugged her shoulders. Bull then asked J.K. if she was ever touched on her
    private parts and she replied, "no." She also said that she never saw Whitaker
    touch M.S. on her private parts. Bull asked how it made J.K. feel when Whitaker
    tickled her and she said it made her feel funny.
    Whitaker's trial counsel did not call as a trial witness any of the three
    children who were interviewed by Detective Bull. In fact, Whitaker's trial attorney
    did not interview them. At trial, she did attempt to have the recordings of the
    interviews with Detective Bull admitted into evidence, but the trial court denied
    her proffer. Defense counsel, in a declaration included in Whitaker's personal
    restraint petition, stated, "I wanted to call these witnesses, however, Iwas
    informed prior to trial that none ofthem were attending the church any longer."
    She went on to state, "I did not ask my investigator to locate the children. It was
    -17-
    No. 71666-2-1/18
    not a tactical choice to not call these exculpatory witnesses. I simply did not
    obtain their presence, nor issue subpoenas to them. I wish I had."
    "To obtain state judicial review of a decision through a personal restraint
    proceeding, an inmate is required to demonstrate both that he or she is being
    restrained and that the restraint is unlawful." In re Pers. Restraint of Costello,
    
    131 Wash. App. 828
    , 832, 
    129 P.3d 827
    (2006). Relief may be obtained "by
    demonstrating either a constitutional violation or a violation of state law."
    
    Costello. 131 Wash. App. at 832
    . "[I]n the context of constitutional error, a
    petitioner must satisfy his threshold burden of demonstrating actual and
    substantial prejudice." In re Pers. Restraint of Cook. 
    114 Wash. 2d 802
    , 810, 
    792 P.2d 506
    (1990). "Unless a petitioner can make a prima facie showing of such
    prejudice, his petition will be dismissed." 
    Cook. 114 Wash. 2d at 810
    .
    "In order to prevail on a claim of ineffective assistance of counsel,"
    Whitaker "must demonstrate (1) deficient performance, that his attorney's
    representation fell below the standard of reasonableness, and (2) resulting
    prejudice that, but for the deficient performance, the result would have been
    different." State v. Hassan. 
    151 Wash. App. 209
    , 216-17, 
    211 P.3d 441
    (2009).
    However, even deficient performance by counsel "does not warrant setting aside
    the judgment of a criminal proceeding if the error had no effect on the judgment."
    Strickland v. Washington. 
    466 U.S. 668
    , 691, 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
    (1984). "The purpose of the Sixth Amendment guarantee of counsel is to ensure
    that a defendant has the assistance necessary to justify reliance on the outcome
    of the proceeding" and so "any deficiencies in counsel's performance must be
    -18-
    No. 71666-2-1/19
    prejudicial to the defense in order to constitute ineffective assistance under the
    Constitution." 
    Strickland. 466 U.S. at 691-92
    .
    "Where counsel's actions involve trial tactics, the courts have declined to
    find constitutional violations." State v. Jones. 
    33 Wash. App. 865
    , 872, 
    658 P.2d 1262
    (1983). "Generally, the decision to call a witness will not support a claim of
    ineffective assistance of counsel. However, the presumption of counsel's
    competence can be overcome by a showing, among other things, that counsel
    failed to conduct appropriate investigations." State v. Thomas, 
    109 Wash. 2d 222
    ,
    230, 
    743 P.2d 816
    (1987) (citations omitted).
    When an ineffective assistance claim is based on counsel's failure to call a
    witness, our Supreme Court has held that the defendant's showing with respect
    to prejudice is insufficient when that witness's testimony does not provide any
    significant new facts or evidence that could have led the jury to a different
    conclusion. See, e.g.. In re Pers. Restraint of Davis. 
    152 Wash. 2d 647
    , 742-43,
    
    101 P.3d 1
    (2004) (where defense expert could not "provide any significant new
    facts or evidence that might have led the jury to a different conclusion," defense
    counsel's failure to call the expert as a witness did not constitute ineffective
    assistance).
    Without deciding whether Whitaker's counsel's performance was, in fact,
    deficient, it is clear that Whitaker cannot establish the requisite prejudice to make
    a prima facie showing of ineffective assistance of counsel. The central issues in
    this case were (1) whether M.S. was credible, (2) whether Whitaker was credible,
    and (3) whether it was physically possible for Whitaker to have committed the
    -19-
    No. 71666-2-1/20
    acts in the manner described by M.S. At trial, Whitaker offered testimony from a
    number of adults who testified that what Whitaker had been accused of doing
    would have been impossible for him to do without being noticed. Additionally, the
    trial court heard extensive testimony regarding the configuration of the "sharing
    time" room, the configuration of the chairs, the design of the chairs, and the
    vantage point of the witnesses. Ultimately, the trial court determined that at least
    part of M.S.'s testimony was credible and that itwas physically possible for
    Whitaker to have committed the acts he was accused of committing in the
    manner described by M.S.
    Testimony elicited from the three classmates of M.S. would not have
    provided any new significant facts or evidence that would have led the trial court
    to a different conclusion. Although none of the children saw Whitaker touch M.S.
    inappropriately, the contents ofthe interviews indicate that the children were not
    particularly observant oftheir surroundings. Their accounts alternate between
    confusion and uncertainty, whereas several adult witnesses testified that it would
    have been impossible for Whitaker to have done thatwhich he stood accused of
    doing. The adult witnesses spoke in no uncertain terms, saying that Whitaker
    would have to have been "invisible" or a "contortionist." The children's testimony
    would not have added to the strength of this position.
    On the other hand, the children also provided potentially damaging
    information, particularly J.K., who stated that Whitaker always sat next to girls
    and that he tickled his students, which made J.K. uncomfortable. Ultimately,
    testimony from these students was unlikely to make any difference in the
    -20-
    No. 71666-2-1/21
    outcome. Accordingly, Whitaker does not establish prejudice and his petition is
    dismissed.10
    VI
    Whitaker raises a number of arguments in a statement of additional
    grounds. Only one warrants appellate relief.
    Whitaker contends that he was denied effective assistance of counsel.
    This occurred, he argues, when his counsel failed to interview or subpoena as
    witnesses other classmates of M.S. and other teachers who co-taught with
    Whitaker. However, because he provides no indication that any of these
    witnesses would have offered exculpatory testimony, his claim fails.
    Whitaker argues that his counsel should have interviewed and
    subpoenaed four students in M.S.'s class not mentioned in his appellate briefing.
    He asserts that these children were interviewed by Detective Bull and rebutted
    M.S.'s version of the events. The record does not support this assertion.
    Detective Bull testified that, "[n]one of them could corroborate or discount [M.S.'s
    version of the events]." (Emphasis added.) Even ifWhitaker's counsel should
    have at least interviewed these children, Whitaker cannot establish that he was
    prejudiced by counsel's failure to call them as witnesses. This is so because
    Whitaker provided no indication that these children would have offered
    exculpatory testimony.
    10 We reiterate that Whitaker also raised this issue on direct appeal. That claim of error
    also fails because of the absence of prejudice, as required by Strickland.
    -21 -
    No. 71666-2-1/22
    Whitaker argues that his counsel should have interviewed and
    subpoenaed Whitaker's co-teachers because failing to call them left many weeks
    unaccounted for in the defense theory of the case. However, Whitaker does not
    demonstrate any likelihood that the outcome would have been different had they
    been interviewed or called as witnesses. He provides no indication that these
    co-teachers would have offered exculpatory testimony. Thus, he cannot
    establish that he was prejudiced.
    VII
    Whitaker next contends that the court abused its discretion by issuing a
    judgment and sentence that contained provisions made without authority of law.
    This is so, he argues, because they were based upon the functions of a lapsed
    Indeterminate Sentence Review Board (ISRB).
    Washington State Constitution article II, section 19 provides: "[no] bill shall
    embrace more than one subject, and that shall be expressed in the title."
    Although the title does not need to act as an index to its contents, "the larger
    body ofcase law finds this court requiring proposed legislation carry a title that
    'would lead to an inquiry into the body of the act, or indicate to an inquiring mind
    the scope and purpose ofthe law.'" Patrice v. Murphv. 
    136 Wash. 2d 845
    , 853, 
    966 P.2d 1271
    (1998) (quoting Young Men's Christian Ass'n v. State. 
    62 Wash. 2d 504
    ,
    506, 
    383 P.2d 497
    (1963)).
    "A legislative title can be either general or restrictive." State v. Thomas.
    
    103 Wash. App. 800
    , 807, 
    14 P.3d 854
    (2000). "Where the title ofthe act is general
    and comprehensive, we liberally construe its subjectto determine whether it
    -22-
    No. 71666-2-1/23
    embraces the subject of all the provisions expressed within the act."11 
    Thomas. 103 Wash. App. at 807-08
    . "A restrictive title, on the other hand, 'is one where a
    particular part or branch of a subject is carved out and selected as the subject of
    the legislation.'"12 
    Thomas, 103 Wash. App. at 808
    (quoting State v. Broadawav.
    
    133 Wash. 2d 118
    , 127, 
    942 P.2d 363
    (1997)). "A restrictive title will not be liberally
    regarded and provisions not within its subject are not given force." 
    Thomas. 103 Wash. App. at 808
    The relevant title to this inquiry is the word, phrase, or phrases following
    "'AN ACT Relating to . . .' and preceding the first semi-colon." Thomas. 103 Wn.
    App. at 808.
    In 2001, a bill was passed which repealed the termination clause in former
    RCW 9.95.0011 (2001), thereby preserving the existence of the ISRB.
    Engrossed Third Substitute S.B. 6151, 57th Leg., 2d Spec. Sess. (Wash.
    2001). This bill was given the title: "AN ACT Relating to the management ofsex
    offenders in the civil commitment and criminal justice systems."
    Whitaker alleges that this title was restrictive and the inclusion of the
    language repealing the ISRB termination provision offormer RCW 9.95.0011
    violated our state constitution. We disagree. The title of the bill was a general
    title. It did not carve out and select a particular part of a subject; rather, it
    11 Examples include: "AN ACT Relating to violence prevention"; "An Act Relating to
    Community Colleges"; and "AN ACT Relating to industrial insurance." 
    Thomas, 103 Wash. App. at 808
    n.15.
    12 Examples include: "An Act Relating to the acquisition ofproperty by public agencies";
    "AN ACT Relating to local improvements in cities and towns"; and "AN ACT Relating tothe rights
    and disabilities of aliens with respect to land." 
    Thomas, 103 Wash. App. at 808
    n.16.
    -23-
    No. 71666-2-1/24
    focused on sex offenders generally. Construed liberally, the bill did embrace the
    subject of all the provisions contained within it, as the ISRB deals with the
    management of sex offenders. Accordingly, Whitaker's contention provides no
    basis for appellate relief.
    VIII
    Whitaker next contends that the trial court erred by including an
    impermissible condition in his felony judgment and sentence. The offending
    condition, he alleges, is: "You shall submit to plethysmography exams, at your
    own expense, at the direction of the community corrections officer." We agree.
    In State v. Riles. 
    135 Wash. 2d 326
    , 
    957 P.2d 655
    (1998), abrogated on
    other grounds by State v. Valencia, 
    169 Wash. 2d 782
    , 
    239 P.3d 1059
    (2010), our
    Supreme Court upheld conditions requiring plethymograph testing as part ofthe
    defendant's sexual deviancy treatment. 
    Riles. 135 Wash. 2d at 343-45
    , 352 ("[A]
    sentencing court may not order plethysmograph testing unless it also requires
    crime-related treatment for sexual deviancy. . . . Plethysmograph testing does not
    serve a general monitoring purpose."). Recently, we held that a trial court errs by
    requiring that a defendant, as a condition of community custody, submit to
    plethysmograph testing at the discretion of a community corrections officer.
    State v. Land. 
    172 Wash. App. 593
    , 605-06, 
    295 P.3d 782
    (2013). In concluding
    that this violates a defendant's constitutional right to be free from bodily
    intrusions, we held that "testing can properly be ordered incident to crime-related
    treatment by a qualified provider" but "it may not be viewed as a routine
    24
    No. 71666-2-1/25
    monitoring tool subject only to the discretion of a community corrections officer."
    
    Land. 172 Wash. App. at 605-06
    .
    Although Whitaker was required to engage in sexual deviancy treatment
    as a condition of his sentence, the condition imposed regarding plethysmograph
    testing was made subject to the discretion of a community corrections officer. In
    order for plethysmograph testing to be properly imposed as a condition of
    sentencing, it must be "incident to crime-related treatment by a qualified
    provider." 
    Land, 172 Wash. App. at 605
    (emphasis added). A community
    corrections officer is not a qualified provider. Therefore, on remand, this
    condition must be stricken from Whitaker's sentence or modified to comply with
    the authorities discussed herein.13
    IX
    Whitaker next contends that the trial court erred by permitting the trial to
    proceed on an inadequate information. The information was inadequate, he
    argues, because it failed to allege all of the essential elements ofeach crime-
    specifically, that it failed to allege and state particular facts supporting the
    essential element of "purpose or intent to gratify sexual desires of either party."
    We disagree. Because sexual gratification is not an element of child molestation,
    Whitaker's claim fails. See State v. Lorenz. 
    152 Wash. 2d 22
    , 34, 
    93 P.3d 133
    (2004) ("Had the legislature intended a term to serve as an element ofthe crime,
    13 In Whitaker's reply brief, his attorney raises, for the first time, an argumentwith respect
    to another condition in Whitaker's judgmentand sentence—specifically, the requirement that he
    consent to DOC home visits to monitor compliance with supervision. Given that this claim of error
    was raised for the first time in the reply brief, we do not consider it. See, e^, State v. Chen, 
    178 Wash. 2d 350
    , 358 n.11, 
    309 P.3d 410
    (2013).
    -25-
    No. 71666-2-1/26
    it would have placed 'for the purposes of sexual gratification' in RCW 9A.44.083.
    Rather, the definition of 'sexual contact' clarifies the meaning such that it
    excludes inadvertent touching or contact from being a crime."). Definitions need
    not be alleged in an information. State v. Johnson.      Wn.2d      , 
    325 P.3d 135
    ,
    138(2014).
    X
    Whitaker finally contends that the trial court erred by denying the defense
    motion for a directed verdict made at the conclusion of the State's case in chief.
    However, because Whitaker presented evidence following the trial court's denial
    of his motion, he waived his right to challenge the sufficiency of the evidence
    presented by the State in its case in chief. See State v. Chavez. 
    65 Wash. App. 602
    , 605, 
    829 P.2d 1118
    (1992) ("When a defendant presents evidence in his or
    her behalf after the trial court has denied the defendant's motion to dismiss a
    charge because of insufficient evidence, the defendant waives his or her right to
    challenge the sufficiency ofthe evidence presented by the State"). No appellate
    relief is warranted.
    The judgment is affirmed. However, we remand to the trial court with
    instructions to strike or modify the condition of sentence requiring Whitaker to
    submit to plethysmograph testing at the discretion ofa community corrections
    officer.
    26-
    No. 71666-2-1/27
    Whitaker's personal restraint petition is dismissed.
    ^x
    We concur:
    ^Q-fA/fV\r..-. \ A.) t                          LU
    27