IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, ; Respondent, ]

v. No. 70318-8-1 DIVISION ONE 1 

## NANCY LYNN TOMLIN, ; UNPUBLISHED OPINION O Appellant. i FILED: March 2, 2015 CD

Becker, J. — Nancy Tomlinappeals her conviction following a bench trial 

### for rape of a child in the first degree. She contends that the trial court erred in permitting an assistant attorney general to appear and address the court about the current status of a child dependency proceeding. Butthe status of the 

### dependency was directly relevant to the trial court's resolution of two pending defense motions. And because defense counsel's failure to object to the 

### appearance was part of a legitimate strategy to investigate a potential defense witness, Tomlin's claim of ineffective assistance fails. We also conclude that the evidence was sufficient to support Tomlin's conviction and that the trial court 

### properly entered written CrR 3.5 and CrR 3.6findings offact and conclusions of law. Tomlin's statement of additional grounds for review raises no meritorious issues. We affirm.No. 70318-8-1/2 On December 8, 2010, the State charged Nancy Tomlin with one count of rape of a child in the first degree. The first trial ended in a hung jury. Tomlin waived her right to a jury trial, and the case proceeded to a bench trial in March
2013. At trial, Trudy Sherman testified that in 2010 she lived in a Redmond apartment complex with her five-year-old son NS. Sherman was acquainted with Nancy Tomlin, who lived in a different building ofthe same complex with her fouryear-old son EJ. NS and EJ occasionally played together. Sherman thought Tomlin was "a pretty decent person." On November 24, 2010, the day before Thanksgiving, Tomlin asked Sherman if NS could come over to her apartment during the afternoon to play with EJ. Sherman, who was planning to precook her turkey for the following day, agreed, and NS went over to Tomlin's apartment. Sometime later, Sherman thought she heard the "most heart-wrenching screams" and believed she recognized NS's voice repeatedly screaming "mom." When she was unable to contact Tomlin by phone, Sherman walked over to Tomlin's apartment and knocked on the door. Sherman asked Tomlin ifeverything was okay. Tomlin said yes and invited Sherman in for a tour ofthe apartment. Sherman thought that Tomlinwas 

### talking unusually fast about various things. Sherman lookedin on NS, who was coloring with EJ in EJ's room. NS said, "I'm okay, mom." Sherman felt a bit uneasy, but she returned to her apartment. She acknowledged there was no

-2-No. 70318-8-1/3 physical way that she could have heard NS yelling in Tomlin's apartment. She insisted, however, that "I absolutely heard my son ... Icannot explain it." Shortly after returning to her apartment, Sherman called Tomlin and said that NS needed to come home. Tomlin returned NS a short time later. She repeatedly told Sherman that she had been "wrestling" with the children and that they "were having fun." Sherman did not notice anything unusual in NS's behavior that evening. Sherman and NS spent Thanksgiving and the following night at the home ofSherman's ex-husband. At some point, Sherman planned to go out on Friday and called Tomlin to see ifshe could babysit NS. Tomlin agreed, but when Sherman told NS, he said he did not want to go. Sherman then called Tomlin and cancelled the appointment. 

### On Friday evening, NS became restless and would not settle down or go to bed. Around midnight, Sherman was ready to spank NS for his behavior but then decided to lie in bed with him. Sherman hugged NS until he settled down. After about 15 minutes, NS said that "something happened over at Nancy's." Sherman asked what happened, and NS said Tomlin "pulled his pants 

### down, put his penis in her mouth and sucked his penis." Sherman asked whether Tomlin's mouth was wet or dry, and NS said "wet." Sherman then asked 

### what happened to his penis, and NS replied, "it got hard." NS said that he had asked Tomlin to stop three times and that when she was done, she pulled hisNo. 70318-8-1/4 head up and told him not to tell anyone. Sherman asked NS why he had not said anything earlier, and NS replied that he did not know. Sherman was angry and planned to call the police. But her ex-husband persuaded her to wait and ask NS about the incident one more time to see if he

was lying. When NS repeated the allegations the following morning, November 27, Sherman took him home and called the police. Redmond Police Officer Kate McGinnis responded to Sherman's call. Shortly after McGinnis entered Sherman's apartment, NS looked her in the eyes and said, "She sucked my penis, Nancy did." CarolynWebster, a child interview specialist, interviewed NS on December 1, 2010. NS told Webster that Tomlin had wrestled with him, pulled 

### his pants down, and sucked on his"private." EJ was in the room andwatched. Tomlin's mouth "feltwet" and made a "clicking noise." Nathan said that when Tomlin was done, his mother picked him up and brought him home. On December 3, 2010, Detective AnnMarie Fein and Officer Nate Sanger 

### went to Tomlin's apartment to talk about the allegations. WhenTomlin opened the door, Feintold her that they wanted to talk to her and asked to come inside. Tomlin indicated that she preferred to speak with the officers outside. Fein informed Tomlin that there had been an allegation that NS's pants had been 

### down during his recentvisit and asked whether he had problems going to the bathroom. Tomlin said no and asked why "somebody would accuse her of 

### something sexual." Fein thentold Tomlin about the allegation that she hadNo. 70318-8-1/5 sucked on NS's penis. Tomlin said the only contact she had withthe boys was wrestling, which she described as "picking up the boys, throwing, trolling them around and throwing them on the bed." Fein told Tomlin that she wanted to hear her side ofthe story, and Tomlin 

### eventuallyagreed to a recorded interview inside the apartment. Beforeletting the officers in, Tomlin said that her boyfriendwas inside sleeping, but they could talk at the kitchen table. 

### During the interview, Tomlin said that the only contact she hadwith NS during the visit was some "wrestling," during which she would twirl the boys around and then throw them on the bed. Tomlin claimed that when Sherman 

### showed up unannounced, NS told Sherman that he did not want to go home yet and Sherman then left. A short time later, Tomlin walked NS home and 

### everything seemed fine. Tomlin claimed that Sherman would have to be"sick" or "evil" to encourage NS to make up such an outrageous story. Atthe conclusion ofthe interview, Fein arrested Tomlin. When Tomlin 

### asked whatwould happen to her son, Fein suggested thatTomlin's boyfriend could care for EJ. Tomlin admitted that no one else was in the apartment. Because Tomlin could not care for EJ following her arrest, the State commenced



### a dependency proceeding involving EJ. 

### NS, who was eight at the time oftrial, testified that he enjoyed playing with EJ because he had "really cool toys." NS recalled that once when he was 

### playing with EJ in EJ'sroom, Tomlin came in, grabbed the boys' hands, andNo. 70318-8-1/6 

### started spinning them around. When she was done spinning NS around, she put him on the bed, pulled his pants and underwear down, and "then she bent down 

### and got on her knees and put hermouth onmy private." He said it "felt weird" and "kind ofwet." NSyelled at Tomlin to stop and tried to push herway. After Tomlin stopped, she told him not to tell anyone. NS said that he then ran home by himself. Tomlin testified that she became acquainted with Sherman while living in 

### the same apartmentcomplex. Sherman's daughterwould occasionally babysit

EJ. Tomlin met NS for the first time when Sherman brought him by and asked 

### her to babysit. NS and EJ occasionally played together at school. Tomlin believed that NS had been at her apartment a total of three or four times. On at least one occasion, Tomlinasked Sherman to babysit EJ. 

### On November24, 2010, Tomlin was planning to prepare much of the food 

### for herThanksgiving dinner. At some point, Tomlin spokewith Sherman by 

### telephone. The two had somediscussion about NS and EJ playing together, but Tomlin could not recall that they reached any agreement as to the arrangements. 

### In the midafternoon, just as she was preparing to leave for the grocery store, 

### Sherman appeared at herdoorwith NS. Tomlin was "shocked" because shehad notarranged with Shermanwhere orwhen the boys would play together. AtSherman's insistence, Tomlin then took NS to the store with her. After 

### returning from thestore, Tomlin told theboys toplay in EJ'sroom and continuedNo. 70318-8-1/7 with her cooking. At some point, Tomlin heard a knock and opened the door. Sherman was standing outside and said she had heard NS screaming. Tomlin gestured to Sherman to come in and then took her to EJ's room. NS told Sherman that he did not want to come home. Sherman then inspected the rest of the apartment before returning to the kitchen, where she commented about the amount of food that Tomlin was preparing. Tomlin asked Sherman ifshe wanted to the try the dressing. Sherman said that she did, but before Tomlin could give her a sample, Sherman "stuck her fingers right in my dressing and put it in her mouth." A short time later,
Sherman left. After preparing some more food, Tomlin looked in on the boys. EJ grabbed her and insisted that she "twirl" him. Tomlin twirled him around and tossed him on the bed. NS watched and asked Tomlin to twirl him. Tomlin then 

### grabbed NS by the hands, swung him around, and tossed him onto EJ's bed. A short time later, Sherman called and asked Tomlin to return NS. Tomlin returned NS to Sherman's apartment. She told Sherman about how she had swung the boys around and tossed them onto the bed. After chatting for a few minutes, Tomlin returned to her apartment. Tomlinacknowledged that she may have mistakenly called the activity with EJ and NS "wrestling," but that she considered it"twirling." She admitted that she had told Fein that she did not go anywhere on the day ofthe alleged 

### crime. She explained that she had been so upset during the interview that "I leftNo. 70318-8-1/8 a lot ofthings out that Iwould have said." She also acknowledged that certain details of her testimony in the first trial might not be accurate. Tomlin denied having sexual contact with NS and believed that Sherman had encouraged NS to make up the allegations. Denise Roderer, a forensic scientist with the Washington State Patrol Crime Laboratory, tested several pairs of NS's underwear for DNA (deoxyribonucleic acid). Roderer excluded Tomlin from the DNA typing profiles that she prepared. The trial court found Tomlin guilty as charged. The court noted that there

were some inconsistencies in NS's accounts of the offense but found that he was 

### generally"very straightforward and articulatein histestimony" about the essential details of the offense. The court observed no hatred, bias, or prejudice in Sherman's and NS's accounts and found both witnesses credible. The court found Tomlin was not credible, noting she had been "remarkably inconsistent" in

her accounts. The court imposed an indeterminate sentence with a standard range minimum term of 93 months and a maximum term of life imprisonment. Appearance ofthe Assistant Attorney General Tomlin contends that the trial court erred in permitting Mary Ann 

### Comiskey, the assistant attorney general representing the Department of Social and Health Services (DSHS) inEJ's dependency proceeding, to appear in the criminal proceeding and provide information about EJ's current competence toNo. 70318-8-1/9 testify. She argues that Comiskey's comments suggesting that she was an unfit mother adversely affected her credibility. She further asserts that defense counsel's failure to object to Comiskey's "inexplicable presence" was constitutionally deficient. But Comiskey's presence was not inexplicable. DSHS had been EJ's 

### legal custodian for more than twoyears as a result of the dependency 

### proceeding. OnMarch 25, 2013, the day that the parties appeared for trial, defense counsel Kevin McCabe filed motions in limine seeking orders 

### "addressed to DSHS, by and through attorneyMs. Comiskey," requiring DSHS to 

### produce EJfor a defense psychological evaluation andfor a defense interview to assess his competence totestify, and toproduce all recent dependencyrecords relevant to EJ's competence. Neither party had attempted to call EJ as a witness during the first trial. McCabe informed the court that he had been discussing the matter with 

### Comiskey for more than a month butthat he had subpoenaed EJ and the 

### dependency records only three days earlier. McCabe knew that DSHS opposed the defense motions butacknowledged that Comiskey had not yet had sufficient 

### time torespond to the subpoenas. He explained that thelack ofadvance notice occurred in part because the datefor Tomlin's retrial had been accelerated when the deputy prosecutor became available earlierthan anticipated. McCabe also noted that consideration of his motions might require a trial continuance.No. 70318-8-1/10 The trial court then explored withthe parties how to proceed withthe defense motions and reviewed in detail which records it should consider when 

### making the decision. Thecourt directed thatall partiesreceive copies ofany materials that itconsidered in making the decision. 

### During the course ofthe hearing, Comiskey informed the court ofthe 

### general statusofthedependency and explained thatDSHS generally opposed EJ's participation in a defenseevaluation ortestimony attrial because ofthe 

### negative effect it might have on his current condition. Comiskey suggested that the court could consider a number ofrecent evaluations and declarations that 

### were already part oftherecord in thedependency proceeding. In response to 

### the trial court's questions, Comiskey stated that "there areno allegations thatthe mother has sexually abused [E.J.]" but volunteered thatthere were "other concerns aboutthe child." Comiskey said that there werecurrently noplans for reunification and that she believed that"my client's position is to move toward
termination." 

### At thetime ofthehearing, defense counsel had directed subpoenas and motions in limine to theAAG representing DSHS and hadconducted prior discussionswith her. As EJ's custodian, DSHS would necessarily be involved in 

## any arrangements for adefense interview orEJ's appearance as atrial witness. Although the betterpractice would be to document on the record the basis for a nonparty's appearance, the trial courtdid noterr or abuse its discretion in permitting Comiskey to address thedefense's motions.

-10-No. 70318-8-1/11 Moreover, given his awareness of DSHS's opposition to the defense motions and subpoenas, the short notice of the motions, and the possible need to seek a trial continuance, defense counsel was clearly attempting to facilitate a 

### prompt decision on the motions. The record strongly suggests that Comiskey 

### appearedin courtwith the consent—or at the request—ofboth parties. Allowing Comiskey to address the courtwithoutfirst requiring DSHS tofile a formal written 

### objection to themotions and subpoenas enabled thetrial courttorule on the motions without any unnecessary delay. Underthe circumstances, defense 

### counsel'sfailure to objectto Comiskey's appearance was a reasonable trial 

### strategy thatwill not support aclaim ofineffective assistance. SeeState v. Grier, 171 Wn.2d 17, 32-33, 246 P.3d 1260(2011) (legitimate trial strategy cannotform the basis for a claim of ineffective assistance ofcounsel). 

### We agree with Tomlin, however, that some ofthe information thatthe trial court elicited from Comiskey was inappropriate and irrelevant. Information 

### suggesting Tomlin's unfitness as amother, either in connection with the ongoing dependency or as abasis for terminating herparental rights, was not relevantto the issue ofEJ's competence to testify. 

### ButTomlin waived herright to ajury trial. Absentevidence to the 

### contrary, we presume thejudge in a bench trial did not considerimproper matters
orinadmissible evidence in rendering a verdict. State v. Gower. 179Wn.2d 851, 

### 855, 321 P.3d 1178 (2014). Nothing in the record suggests that thetrial court 

### considered Comiskey's comments orany inappropriate information in assessing

-11-No. 70318-8-1/12 

### Tomlin'scredibility in the criminal proceeding. Moreover, after interviewing EJ, defense counsel withdrew him as a potential witness. On appeal, Tomlindoes 

### not challenge defense counsel's decision not to call EJ as a witness or the trial court's denial of a defense psychological evaluation. Because she fails to 

### demonstrate any resulting prejudice, defense counsel's failure to object to some 

### ofComiskey's comments cannotconstitute ineffective assistance ofcounsel. See State v. McFarland, 127 Wn.2d 322, 337-38, 899 P.2d 1251 (1995) (failure 

### to demonstrate either deficient performance or prejudice defeats a claim of ineffective assistance of counsel). CrR 3.5 and CrR 3.6 Findings of Fact and Conclusions of Law Tomlincontends that the trialcourt's failure to enter written findings of fact 

### and conclusions oflaw following the CrR 3.5 and CrR 3.6hearings prevents her 

### from challenging thesedecisions on appeal. Butthe record shows thatthe trial court entered written CrR 3.5 and CrR 3.6 findings and conclusions more than two months before Tomlin filed her opening brief. Tomlin's contentions are therefore without merit. Sufficiency ofthe Evidence Tomlin contends that the evidence was insufficient to support her 

### conviction. In particular, she alleges thattheevidence fails tosupportthetrial court'sfindings offact 9, 10, 11, 12, 17, 18, 19, 20, and 21. When a defendant challenges the sufficiency ofthe evidencefollowing a 

### bench trial, an appellate court reviews whether substantial evidence supports the

-12-No. 70318-8-1/13 

### findings of fact and, if so, whether the findings support the conclusions oflaw. State v. Stevenson. 128 Wn. App. 179, 193, 114 P.3d 699 (2005). Substantial evidence is evidence sufficient to persuade a fair-minded person of the truth of the matter asserted. State v. Homan, 181 Wn.2d 102, 106, 330 P.3d 182 (2014). 

### Aclaim ofinsufficiency admits the truth of the State's evidence and all reasonable inferences from that evidence. State v. Kintz, 169 Wn.2d 537, 551, 238 P.3d 470 (2010). 

### Here, the challenged findings setforth the trial court's reasoning in 

### assessing theconflicting evidence andtestimony. Among otherthings, thetrial court acknowledged that therewere "some inconsistencies in theevidence." The courtnoted that NS may have given conflicting accounts ofTomlin's position 

### during the offense and that he may have used the word "penis" when describing the incidentto Officer McGinnis at a time when he did not knowthe meaning of 

### theword. Tomlin alsopoints to NS's testimony that heran home immediately after the incident and told his mother, a detail that conflicted with both Sherman's 

### and Tomlin's accounts. The court also explained that itdid not detect any hatred 

### or prejudice in NS or Sherman that could serve as amotive forfalse allegations. Tomlin suggests thatNS's andSherman's accounts oftheoffense were 

### too inconsistenttopermit a rational trier offact tofind herguilty. Sheargues that 

### NS "said many conflicting things abouttheeventto many people

... All ofthese statements cannot be true." Butas the trial courtindicated, NS's accounts ofthe 

### actual offenseremained relatively consistent. Cf State v. Alexander, 64Wn.

-13-No. 70318-8-1/14 App. 147, 822 P.2d 1250 (1992) (victim's extreme contradictions and inconsistencies about chronology of abuse and whether itoccurred at all, combined with other errors, denied the defendant a fair trial). The trial court here was able to observe the trial testimony and the demeanor of all the witnesses. The court also considered the trial testimony in 

### light of the video recording of NS's interview with the child interview specialist 

### shortly after the incident, the audio recording ofTomlin's interview with the police, and the parties' testimony during the first trial. After considering all of the evidence, the court found the testimony of NS and Sherman to be straightforward and credible as to the essential details ofthe offense and the testimony of Tomlin to be inconsistent and not credible. This was a credibility determination that this court cannot review. See State v. Camarillo, 115 Wn.2d 60, 794 P.2d 850 (1990) 

### (appellate court defers to thetrier offact on issues ofconflicting testimony, credibility ofwitnesses, and the persuasiveness oftheevidence). Viewed in the light mostfavorable to the State, the evidence was sufficient 

### topermit a rational trier offact tohave found all oftheelements ofrape ofa child in the firstdegree. See RCW 9A.44.073. Statement ofAdditional Grounds for Review In her Statement ofAdditional Grounds for Review, Tomlin contends that 

### thetrialjudge had a conflict ofinterest because his wife is an attorney in the
same public defenderorganization as Tomlin's attorney in the dependency 

### proceeding. She assertsthat because both thepublic defenderorganization and

-14-No. 70318-8-1/15 

### the judge's wife had "years ofanimosity towards me and my case," the trialjudge

was biased against her and should have recused himself. 

### As evidence of thejudge's bias, Tomlin relies primarily on the trial court's denial of her motion to permit a defense psychological expert to interview EJ to evaluate his competency to testify. She claims that the testimony of her son, 

### who was present at the time ofthe alleged crime, would have established her

innocence. 

### The record shows that the trialjudge informed the parties of his wife's 

### position in the defender organization and stated that she had neverworked in the dependency unit. The judgeoffered to recusehimselfon that basis upon request, but neither party objected. 

### Tomlin has notidentified any evidence to support her allegations of 

### personal animosity by the trialjudge's wife. Nor is there anything in the record supporting her claims ofwhat EJ would have said ifcalled to testify. After 

### interviewing EJ, defense counsel concluded that hewas competentbut had no 

### independent memory ofthe relevant events. Counsel therefore did not call EJ as

a witness. 

### Because Tomlin's allegations regarding the trialjudge rest primarily on matters that are outside the record on review, we will not considerthem on direct 

### appeal. SeeState v. McFarland. 127Wn.2d at337-38. The mere existence of adverse rulings doesnot support aninference thatthetrial courtwas biased or 

### prejudiced. SeeRhinehartv. SeattleTimes Co., 51 Wn. App. 561, 579-80, 754

-15-No. 70318-8-1/16 P.2d 1243, review denied, 111 Wn.2d 1025 (1988), cert, denied, 490 U.S. 1015 (1989).Tomlin also alleges prosecutorial misconduct and ineffective assistance of counsel. She claims that the deputy prosecutor improperly informed the court 

### about plea negotiations and made fun of her, used inappropriate language, and threatened her in the courtroom. She alleges that defense counsel was constitutionallydeficient because he failed to take account of the effect that her serious ear infection and learning disability had on her ability to testify and 

### participate at trial, failed to object to the assistant attorney general's comments to the court, failed to arrange a psychological evaluation for her, and failed to 

### emphasizeexculpatory DNA evidence. Shefurther alleges that defense counsel was notqualified to interview her son andfailed toquestion her on the standin a manner that would have explained her "accidental distraught misstatements." 

### Several ofTomlin's allegations ofprosecutorial misconduct and ineffective 

### assistance are simply too conclusory to address. See RAP 10.10(c) (appellate court will decline to consider issues in statement of additional grounds for review 

### ifthey donot "inform thecourt ofthe nature andoccurrence ofalleged errors"). The remaining allegations are based on matters outside the record and cannot be considered on appeal. 

### Finally, Tomlin challengesthe trial court'sdetermination following the CrR 3.6hearing that she voluntarily consented to the officers' entryinto her 

### apartment. She argues thattheshock oftheuntrue allegations, coupled with her

-16-No. 70318-8-1/17 learning disability, caused her to feel "coerced" and rendered her consent involuntary. ButTomlin testified at the CrR 3.6 hearing. The trial court's assessment ofher attempts to explain the omissions, inaccuracies, and inconsistencies in some of her statements involves issues of credibility that this 

### court cannot review on appeal. State v. Fiser, 99 Wn. App. 714, 719, 995 P.2d 107. review denied. 141 Wn.2d 1023 (2000).
Affirmed. 

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WE CONCUR: 

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