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### C0US7 OF APPEALS DIV I

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### 20IUAN2I milt2k

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, Respondent,

v. MICHAEL SHANE CATES, Appellant. NO. 68759-0- DIVISION ONE

UNPUBLISHED OPINION FILED:


### Lau, J. —Michael Shane Cates appeals his convictions for two counts offirst 

### degree child rape and two counts ofchild molestation. He contends (1) the court violated his SixthAmendment right to confrontation by permitting a State witness to 

### testifyvia video linkand(2) thecourterred in imposing acommunity custodyprovision permitting acommunitycorrections officer (CCO) to searchhis home andcomputer. Cates raises other issues in a pro se statementofadditional grounds (SAG). Finding no error, we affirm. FACTS 

### In December 2009, 15-year-old MS told his mother that afamily friend, Michael 

### Cates, hadsexually abusedhim overaperiod ofseveralmonths when MS was 6 or 768759-0-1/2


### years old. MS said the abuse occurred when Cates temporarily lived with MS's family in Lake Stevens in 2001. At trial, MS's father testified that he knew Cates when both men were in Job 

### Corps in New Mexico in the 1990s. MS's father latermoved the family to Washington state. Cates called in 2001 and said he was "down on his luck," and MS's father allowed him to stay inthe family's Lake Stevens home. Report ofProceedings (RP) (Jan. 24, 2012) at 212. Cates lived with MS's family for approximately six to nine months. MS testified that the abuse started about a month after Cates moved in. According to MS, Cates repeatedly anally raped him. MS also described one or two occasions involving oral sex. These occasions were separate from the many instances ofanal rape. MS described in detail the rape and oral sex instances, including the positions he and Cates took and the physical sensations MS experienced. Cates was an alcoholic. MS's father testified that Cates "was a daily heavy drinker" and consumed alcohol every day. RP (Jan. 24, 2012) at 218. MS's mother 

### testified that "any time he wasn'tworking, he was drinking." RP (Jan. 25, 2012) at 336. When MS's familywentto New Mexico for two weeks to visit MS's grandmother, MS's father told Cates to move out by the time they returned. When the family returned 

### home, Cates was gone but the house was indisarray with "beercans all over [the] 

### house, dirty, broken dishes alloverthe house, cigarette burns in a newly laminated floor 

### throughout the entire house, garbage strung throughout the house." RP (Jan. 24, 2012)
at 221. MS had no further contact with Cates.

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MS's parents never noticed anything unusual about Cates's relationship with MS
or any changes in MS's behaviorwhile Cates lived with them. Inthe ensuing eight years, MS nevertold anyone aboutthe abuse because he was afraid and ashamed. He feared his friends and family would look at him and his sexuality differently ifthey knew what had happened. Inlate 2009, when MS was 15, his 12-year-old sister KS revealed that a cousin had molested her. MS's mother asked MS ifanything like that had ever happened to him. MS then disclosed the abuse by Cates because he wanted to support his sister by 

### letting her knowthe same thing had happened to himand because he was tired of "holding it in,just all my emotions building up, itwas too much for me to handle at that point." RP (Jan. 24, 2012) at 123; RP (Jan. 25, 2012) at 347-48. 

### Although initially reluctant, MS ultimatelyagreed to give a statementto police. MS's mother contacted Lake Stevens police. Officer James Wellington interviewed MS. 

### Officer Wellingtondetermined Cates was living in Springfield, Missouri and contacted
authorities there. 

### Springfield detectives interviewed Cates at the Missouri Probation and Parole Office. Cates denied the allegations. According to Missouri Police Detective Robert 

### McPhail, Cates was nervous, sweating, and shaking when the interview started. Cates relaxed as the interview turned to his time living with MS's family in Lake Stevens. But 

### when questioning focused on whether Cates had ever spenttime alone with the S family children, he grew nervous and started sweating and shaking again. The State charged Cates with twocounts of firstdegree child rape and two 

### counts offirst degree child molestation. The parties stipulated to the admissibility of
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Cates's statements to detectives in Missouri. The parties also agreed, after some discussion, to admission of a redacted transcript ofthe Missouri interview. As 

### discussed more fully below, Detective McPhail flew toWashington for trial, but 

### inclementweatherdelayed the proceedings and the detective returned to Missouri before the trial began. He testified the following week by two-way video linkfrom
Missouri. 

### Given the lapse of time, local policedecided not to refer MS for a physical examination. However, the prosecutor's office later requested a physical examination. 

### Nursepractitionerand clinical coordinator Barbara Haner of the ProvidenceIntervention CenterforAssault and Abuse physically examined MS's anus. Haner noted three 

### unusual features: immediate dilation(absence ofthe normal "winking" reflex), "cuff-like" 

### rugae, and afissure (tear) with redness orirritation. RP (Jan. 26,2012) at432-35, 457. Hanertestified that herexamination was "nonspecific," meaning the unusual features 

### "could have been caused by a lot of things including sexual assault." RP (Jan. 26, 

### 2012) at436-37. Shefurther explained that"nonspecific" meant she could notmake a conclusive statement, but she could not discount or exclude sexual abuse. 

### Cates did nottestify attrial. Thejuryconvicted Cates as charged, and the court sentenced him within the standard range. Cates appeals. ANALYSIS Confrontation Clause 

### Forthefirsttime on appeal, Cates contends that thetrial courtviolated his Sixth 

### Amendmentrighttoconfrontation by allowing Detective McPhail totestify bytwo-way

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video link. The State responds that Cates waived this challenge by agreeing to the procedure attrial. Relevant Facts In December 2011, trial was continued to Friday, January 13, 2012, "subjectto the availability ofthe State's witnesses." Monday, January 16, was Martin Luther King Day. When the parties appeared before the assigned trialjudge on Tuesday, January 17, thejudge discussed likelydelays because of inclementweather impacting the availablejury pool. Defense counsel noted she had discussed the weather situation 

### withthe prosecutor. The State explained it had two out-of-state witnesses—MS's father and Detective McPhail—flying into Seattle that day. Itwas snowing during the 

### proceedings, and the court and parties agreed to suspend proceedings for the remainder ofTuesday and Wednesday and to try again on Thursday, January 19, with a 

### new jury pool. The court noted that with 8 to 10 inches ofsnow predicted, trial might not begin on Thursday either. 

### On Thursday, January 19, the parties reconvened to discuss the weather situation. Itwas still snowing thatday. Detective McPhailwas present in court but had to be back in Missouri by Friday evening because of a childcare issue. The following colloquy regarding Detective McPhail's testimony occurred: 

### [THE COURT]: Iknowthere was some discussion of having Detective McPhail testify by video deposition. Isthat still a possibility? MR. OKOLOKO: The most pressing issue forthe State is Mr. McPhail's 

### testimony. As Isit here today and on my e-mail, he has to be backin Missouri by Friday evening due to a child care issue that he's got going on in Missouri. What Ihave discussed with Mr. McPhail and counsel, Ms. Dingledy, are two options. Some time this afternoon we can do a video deposition ofthe Detective, and 

### have that admitted during the trial and published to the jury. The second is that68759-0-1/6

we could call Detective McPhail out ofordertoday, have himtake the stand and testify based on a stipulation between the parties. THE COURT: We don't have a jury today. 

### MR. OKOLOKO: That's what I'm saying. He would be testifying outside the presence ofthejury. Itwill be videotaped in an open courtroom with a court reporter in here. 

### THE COURT: So what you are suggesting is that

- - the otherway of doing the video deposition would be actually in session? MR. OKOLOKO: Insession. That way you can make rulings on objections. The third option would be Detective McPhail returns back to Missouri and we can have him inthe trial by way ofeither Skype or like we've done Ihave done in a different trial inJudge Castleberry's department, the witness participated by conference call. Obviously, thatwas based on a stipulation ofthe parties agreeing to have the witness phone in and the defendantwaiving his right to have the witness present inthe courtroom. Those are three options. THE COURT: Ms. [Dingledy], have you had a chance to discuss any of this with your client? Ifyou haven't, we'll give you a chance. MS. DINGLEDY: We've discussed itand we're discussing itat present. THE COURT: Ifyou need an opportunity to discuss itwithout all of us overhearing the conversation. MS. DINGLEDY: Quite frankly, what Iwould love is a recess. RP(Jan. 19, 2012) at 56-58. The court took a recess and then continued the discussion: THE COURT: Please be seated. And so let me start here. Any chance you've agreed on an approach to Detective McPhail's testimony? MS. DINGLEDY: Ithink we have, Your Honor. Ithink that it would be wiser to try to do this by video link or if all else fails

- - THE COURT: Idon't have any problem with that idea. We at least have some notice so I can talk to Mr. Shambro in our administrative office about how to set it up. We have done itbefore inthe courthouse with a Skype. MR. OKOLOKO: That's the defense's preference. The State will be going with that. At this point in time, Iwill have a stipulation that we'll file in courtto show that the parties agreed to proceed by this medium. Ithink we settled on Detective McPhail's testimony. RP (Jan. 19, 2012) at 59 (emphasis added). 

### Cates's counsel asked to briefly interview Detective McPhail before he returned to Missouri, which the State agreed to facilitate. The court and parties agreed to start
anew on Monday, January 23.
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### On Tuesday, January 24 (after voir dire on Monday), the State confirmed that Detective McPhail would testify by video linkthe following morning. The court indicated it would have a technician and equipment ready. 

### On Wednesday, January 25, before Detective McPhail's testimony, the parties discussed admission ofan ultimately agreed transcript ofthe Springfield interview that Detective McPhail would referto in his testimony. RP (Jan. 25, 2012) at 253-59; Ex. 8B (admitted at RP (Jan. 25, 2012) at 276-77); see also RP (Jan. 25, 2012) at467-72 (final 

### wording ofstipulation). The parties had previously agreed to the admissibility ofCates's statements to Detective McPhail. The court, parties, and technician discussed the video hookup logistics. RP (Jan. 25, 2012) at 259 (use of split screen, where parties should stand, and witness in view of jury). Before the detective testified, the court explained to thejury thatthe reason for this procedure was the previous week's snowstorm. Detective McPhail testified as described above. On cross-examination, defense counsel elicited Detective McPhail's testimony that itwas fairly common for people to be
nervous when talking to a police officer and that Cates's behavior atthe beginning of the interview was not necessarily unusual. Analysis The confrontation clauses ofthe state and federal constitutions guarantee the right ofan accused to confrontwitnesses against him or her. U.S. Const, amend. VI; Wash. Const, art. I, § 22. "The right to face-to-face confrontation underthe federal and state confrontation clauses, while a fundamental and important right ofthe accused, is not absolute." State v. Foster, 135 Wn.2d 441, 473, 957 P.2d 712 (1998). "The [United 

### States] Supreme Court has indicated 'a preference forface-to-face confrontation [with
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### witnesses] at trial,' acknowledging 'that such confrontation is [not] an indispensable element ofthe Sixth Amendment's guarantee ofthe right to confront one's accusers.'" 

### State v. Davis. 141 Wn.2d 798, 846, 10 P.3d 977, 101 P.3d 1 (2000) (alterations in original) (internal citations omitted) (quoting Maryland v. Craig. 497 U.S. 836, 849-50, 

### 110 S.Ct. 3157, 111 L. Ed. 2d 666 (1990)).1 "This preferred rightofphysical presence,
or 'face-to-face' confrontation, may be dispensed with only where denial ofsuch confrontation is necessary to further an important public policy and only where the reliability ofthe testimony is otherwise assured." Foster, 135 Wn.2d at457 (quoting Craig. 497 U.S. at 850). Adefendant can waive a fundamental constitutional right if he or she "'intentionally] relinquishes] or abandonfs] a known right or privilege.'" State v. Thomas. 128 Wn.2d 553, 558, 910 P.2d 475 (1996) (quoting Johnson v. Zerbst. 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 2d 1461 (1938), overruled on othergrounds by Edwards v. Arizona. 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981)). Stated anotherway, a defendant's waiver is valid ifdone knowingly, voluntarily, and intelligently. Thomas, 128 Wn.2d at 558. The right to confrontwitnesses falls into the 

### category of rights thattrial counsel can waive as a matter of trial strategy without the defendant's personal expression of waiver. State v. O'Cain. 169 Wn. App. 228, 244-45, 279 P.3d 926 (2012) ("As with decisions implicating trial strategy, the decision to raise a 

### confrontation clause objection is a determination that is reserved to the discretion of 

### 1In Craig, the Court held that a preference for face-to-face confrontation '"must occasionally give way to considerations of public policy and the necessities of the case.'" Craig. 497 U.S. at 849 (quoting Mattox v. United States. 156 U.S. 237, 243, 15 S. Ct. 337, 39 L. Ed. 409 (1895)).

-8-68759-0-1/9 competent defense counsel."); Wilson v. Gray, 345 F.2d 282, 287-88 (9th Cir. 1965) (holding thatthe right to confrontation was waived by trial counsel's stipulation to the matter being heard based on the transcript ofthe preliminary hearing); see also Thomas, 128 Wn.2d at 559-60 (stating that the right to confrontation is similarto the right to testify, right not to testify, and right to self-representation inthat itcan be waived by counsel). Here, in Cates's presence and without any objection on his part, defense counsel 

### agreed that Detective McPhail could testify from Missouri via two-way video link. The 

### record clearly indicates that underthe circumstances ofthe case at the time oftrial, counsel's decision was deliberately made as a matterof trialtactics and strategy. Cates 

### waived his righttoface-to-face confrontation.2

2Cates also argues that the court'sfailure to makefindings under thetwo-part test setforth in Craig (important public policy and reliability) was manifest constitutional 

### error under RAP 2.5(a). This argumentfails for at least tworeasons. First, Cates relies on cases where, unlike here, the accused objected to video testimony. Second, any 

### error here was clearlyinvited. The invited error doctrine "prohibits a partyfrom 'setting 

### up error in the trial court and then complaining ofit on appeal.'" State v.Armstrong. 69 Wn.App. 430, 434, 848 P.2d 1322 (1993) (quoting State v.Young, 63 Wn.App. 324, 330, 818 P.2d 1375 (1991)). "Even where constitutional rights are involved, invited 

### error precludes appellate review." State v.Alger, 31 Wn. App. 244, 249, 640 P.2d 44 (1982). Asdiscussed above, Cates explicitly agreed to the two-way videolink procedure. 

### We further note that although Detective McPhail was not physicallypresent in the courtroom, he testified by two-way video link in front ofCates and the jury in real time. The record confirms he was subjected to meaningful cross-examination. Cates lodged 

### timely and pertinentobjections. Moreover, as discussed above, Cates stipulated to a redacted transcript of the same interview DetectiveMcPhail recounted during his 

### testimony. Detective McPhail's testimony added only Cates's demeanor during the 

### interview (nervous and shaking). Oncross-examination, defense counselsuccessfully elicited the detective's testimony that, in his experience, itwas not uncommon for 

### peoplewho have donenothing wrong to behavenervously whenquestioned by police.68759-0-1/10

Conditions ofSupervision 

### Cates assigns errorto a community custody provision included in hisjudgment and sentence. The challenged condition reads: "Youmust consentto [Department of Corrections] home visits to monitoryour compliance withsupervision. Home visits include access for the purposes ofvisual inspection of all areas ofthe residence in 

### which you live or have exclusive/jointcontrol/access, to also include computers which 

### you have access to." Cates argues this condition violates article I, section 7 of the Washington Constitution and the Fourth Amendment ofthe United States Constitution. The State contends that under State v. Massev. 81 Wn. App. 198, 913 P.2d 424 (1996), 

### Cates's challenge to the community custody provision is not ripe for review. The unconstitutionality of a community custody condition is not ripe for review 

### unless the person is harmfullyaffected by the part of the condition alleged to be unconstitutional. Massev, 81 Wn. App. at 200. To the extent Cates challenges the condition's home visit component, Massev is dispositive of this issue. Under Massev, 

### the community custody condition Cates challenges here is not ripe forreview until Cates is subjected to an impropersearch. Massev, 81 Wn.App. at 199-200. Cates's challenge to this provision is premature, and we decline to address it. However, Cates also challenges the condition's computer inspection component. 

### Heargues this condition (1) is not crime related and (2) "isunconstitutionally overbroad because it chills Mr. Cates's FirstAmendment right to use a computerto store his 

### 'records, reflections, and conversations.'" Appellant's Br. at 28 (quoting State v. Nordlund. 113Wn. App. 171, 181-82, 53 P.3d 520 (2002)).

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Trial courts have discretion to impose "crime-related prohibitions" as conditions of community custody. Former RCW 9.94A.700(5)(e) (2003). We agree with Cates that the record contains no evidence indicating he used a computerto perpetuate the crime for which he was convicted. In fact, the court struck proposed condition 13—which would have barred Cates from possessing or accessing a computerwithout CCO 

### approval—due to the court's concern that no evidence showed Cates's crime involved computers. RP (April 24, 2012) at 615 (sentencing hearing); Clerk's Papers at 18 

### (judgment and sentence showing condition 13 crossed out). Atthe sentencing hearing, the court clarified that the computersearch provision was part ofthe routine monitoring 

### meantto ensure Cates complied withother unchallenged conditions: Iwon't impose [prohibition 13], but [Cates] will have to allow his CCO to have access to any computer used by him, and if he has found - - ifthere is any 

### evidence that he is using iffor improperpurposes contacting children or 

### accessing sexually explicit information orothermaterials that he's already prohibited from, then he will be prohibited from using it. Iwill indicate that he can 

### use a computer so long as it is subjectto a search on requestby his CCO, and if there is evidence that he's committing any violation by use ofthe computer, he will lose this right. 

### RP (April 24, 2012) at615.3 We agree with the trial court that the computer search provision is a monitoring condition, not a prohibition. Itdoes not prohibit or otherwise restrict Cates's use or 

### possession of computers. Cates does not challenge his other community custody conditions, including condition 6 (barringhim from possessing oraccessing sexually


### 3Atthe sentencing hearing, Cates objected tocondition 7 (barring him from 

### possessing or accessing sexuallyexplicitmaterials) on overbreadthgrounds. Thecourt found that under State v. Bahl. 164 Wn.2d 739, 193 P.3d 678 (2008), while 

### "pornography" wasoverbroad, "sexuallyexplicitmaterials" was not. RP(April 24,2012) at 616-17. Cates assigns no error to condition 7 on appeal. -11-68759-0-1/12 explicit materials). The home and computer search provision is a means for the State to monitor Cates's compliance with this, and other, conditions. 

### We next consider Cates's FirstAmendment argument. "[A] convicted 

### defendant's constitutional rights during the period of community custody placement are subjectto the infringements authorized bythe Sentencing Reform Act of 1981." State v. Combs. 102 Wn. App. 949, 953, 10 P.3d 1101 (2000) (citations omitted). "[Conditions may be imposed that restrictfree speech rights ifreasonably necessary, but they must be sensitively imposed." State v. Bahl. 164 Wn.2d 739, 757, 193 P.3d 678 (2008). However, the appropriate standard ofreview for a sentencing condition is abuse of discretion, even where the sentencing condition infringes on a fundamental right. In re Pers. Restraint of Rainev, 168 Wn.2d 367, 374-75, 229 P.3d 686 (2010). The condition challenged here does not restrict or limitCates's computer
use. The condition also limits the scope of computer searches inthat itrequires Cates to consent to such searches "to monitor [his] compliance with supervision." RCW 9.94A.631's plain language expressly authorizes a search of a probationer's "person, residence, automobile, or other personal property" without a warrant ifthe CCO has reasonable cause to believe that the probationer violated a condition ofthe sentence. In Massev, we concluded that whether a community custody order expressly states so or not, "the standard for adjudicating a challenge to any subsequent search remains the same: Searches must be based on reasonable suspicion." Massev, 81 Wn. App. at 201 (emphasis added). The trial court did not abuse its discretion in

-12-68759-0-1/13 

### imposing the computer search condition, and Cates's challenge is not ripe until he is 

### subjectedto anunreasonable search.4 Statement ofAdditional Grounds (SAG) Cates raises two issues in his pro se SAG. He first argues that insufficient evidence supports his convictions. He specifically claims, "There was no physical 

### evidence and the testimony of a teenager recalling things that never occurred from 10 

### years earlier should not be enough to put someone in prison for 25 yrs." SAG at 3. To the extent Cates argues the only evidence was "[his] word against a teenager's word and his father," SAG at 1, he essentially contests witness credibility and evidence 

### persuasiveness at trial. We deferto the trier of fact on issues of conflicting testimony, 

### witness credibility, and persuasiveness of the evidence. State v. Fiser, 99 Wn. App. 714, 719, 995 P.2d 107 (2000). Given the fact finder's opportunity to assess witness 

### demeanor and credibility, we will not disturb those findings. See State v. Pierce. 134 Wn. App. 763, 774, 142 P.3d 610 (2006). Viewing the evidence in the light most favorable to the State, we conclude a rational jury could have found Cates guilty of first 

### degree child rape and child molestation beyond a reasonable doubt. Cates also argues counsel was ineffective because she (1) failed to object to admission ofevidence showing he was on parole, (2) suggested to the jury that he was


### 4Cates cites Nordlund for the proposition that "'the search of a computer has 

### FirstAmendmentimplications that maycollidewith Fourth Amendment concerns.'" 

### Appellant's Br. at 27 (footnote omitted) (quoting Nordlund, 113Wn. App at 182). In Nordlund, the defendant claimed that affidavits submitted to support search warrants 

### were insufficienttojustify seizure and search of his personal computer. Nordlund, thus, addressed whetherthe State demonstrated probable cause to seize and search the 

### computer. Here, Cates has not yet been subjected to a search. His reliance on Nordlund is premature. -13-68759-0-1/14 

### probably guilty, (3) made himtake notes while she questioned his accuserduring trial, (4) rushed him into trialand failed to inform him itwas importantthat he testify, and (5) failed to ask him if he had any witnesses and failed to follow up on a claimed alibi. To establish ineffective assistance ofcounsel, Cates must show both deficient performance and resulting prejudice. Strickland v. Washington. 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). There is a strong presumption ofeffective representation. State v.McFarland. 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). Matters that go to trial strategy or tactics do not show deficient performance, and Cates bears the burden ofestablishing there were no legitimate strategic ortactical reasons behind his attorney's choices. State v. Rainev, 107 Wn. App. 129, 135-36, 28 P.3d 10 (2001). Here, counsel's decisions regarding objections and whetherto call particular witnesses to testify constitute trial tactics. Cates fails to show that counsel lacked proper strategic or tactical reasons for her choices. Our review ofthe record reveals no supportfor Cates's claim that defense counsel suggested to thejury that he was guilty or told thejury he was "an extremely talented abuser," SAG at 2. Cates reads his counsel's statements out of context. See RP (Jan. 26, 2012) at 533-49 (defense counsel's closing argument). Further, nothing inthe record supports Cates's claims that counsel made him take notes during trial, rushed him into trial, or failed to follow up on a claimed alibi. We decline to review these claims. State v. Wheaton. 121 Wn.2d 347, 365, 850 P.2d 507 (1993) (declining to review issues due to "inadequate record and inadequate argument").

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CONCLUSION We affirm thejudgment and sentence.

WE CONCUR: 

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