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NANCY LYNN TOMLIN, ; UNPUBLISHED OPINION O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 Tomlin appeals 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. But the 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 3.6 findings 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 of the 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 of the apartment. Sherman thought that Tomlin was

talking unusually fast about various things. Sherman looked in 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

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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 ... I cannot 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

of Sherman'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 his
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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."

Carolyn Webster, 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 and watched.

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. When Tomlin opened

the door, Fein told 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 recent visit and asked whether he had problems going to the

bathroom. Tomlin said no and asked why "somebody would accuse her of

something sexual." Fein then told Tomlin about the allegation that she had
No. 70318-8-1/5

sucked on NS's penis. Tomlin said the only contact she had with the 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 of the story, and Tomlin

eventually agreed to a recorded interview inside the apartment. Before letting

the officers in, Tomlin said that her boyfriend was inside sleeping, but they could

talk at the kitchen table.

During the interview, Tomlin said that the only contact she had with 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.

At the conclusion of the interview, Fein arrested Tomlin. When Tomlin

asked whatwould happen to her son, Fein suggested that Tomlin'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, and
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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 her mouth on my private." He said it "felt weird"

and "kind ofwet." NS yelled at Tomlin to stop and tried to push her way. 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 apartment complex. Sherman's daughter would 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, Tomlin asked Sherman to babysit EJ.

On November 24, 2010, Tomlin was planning to prepare much of the food

for herThanksgiving dinner. At some point, Tomlin spoke with 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 herdoor with NS. Tomlin was "shocked" because she had

notarranged with Shermanwhere or when the boys would play together.

At Sherman's insistence, Tomlin then took NS to the store with her. After

returning from the store, Tomlin told the boys to play in EJ'sroom and continued
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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.

Tomlin acknowledged 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 of the alleged

crime. She explained that she had been so upset during the interview that "I left
No. 70318-8-1/8

a lot of things out that I would 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 articulate in 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 of the 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) in EJ's dependency proceeding, to appear in the

criminal proceeding and provide information about EJ's current competence to
No. 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 two years as a result of the dependency

proceeding. On March 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 attorney Ms. Comiskey," requiring DSHS to

produce EJfor a defense psychological evaluation and for a defense interview to

assess his competence to testify, and to produce all recent dependency records

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 but acknowledged that Comiskey had not yet had sufficient

time to respond to the subpoenas. He explained that the lack ofadvance notice

occurred in part because the date for Tomlin's retrial had been accelerated when

the deputy prosecutor became available earlier than anticipated. McCabe also

noted that consideration of his motions might require a trial continuance.
No. 70318-8-1/10

The trial court then explored with the parties how to proceed with the

defense motions and reviewed in detail which records it should consider when

making the decision. The court directed that all partiesreceive copies ofany

materials that it considered in making the decision.

During the course ofthe hearing, Comiskey informed the court ofthe

general status of the dependency and explained that DSHS generally opposed

EJ's participation in a defense evaluation ortestimony at trial because ofthe

negative effect it might have on his current condition. Comiskey suggested that

the court could consider a number of recent evaluations and declarations that

were already part of the record in the dependency proceeding. In response to

the trial court's questions, Comiskey stated that "there are no allegations that the

mother hassexually abused [E.J.]" but volunteered thatthere were "other

concerns aboutthe child." Comiskey said that there were currently no plans for

reunification and that she believed that "my client's position is to move toward

termination."

At the time ofthe hearing, defense counsel had directed subpoenas and

motions in limine to the AAG representing DSHS and had conducted prior

discussionswith her. As EJ's custodian, DSHS would necessarily be involved in

any arrangements for a defense interview or EJ's appearance as a trial witness.

Although the better practice would be to document on the record the basis for a

nonparty's appearance, the trial court did not err or abuse its discretion in

permitting Comiskey to address the defense's motions.

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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

appeared in court with the consent—or at the request—of both parties. Allowing

Comiskey to address the court without first requiring DSHS to file a formal written

objection to the motions and subpoenas enabled the trial court to rule on the

motions without any unnecessary delay. Under the circumstances, defense

counsel'sfailure to object to Comiskey's appearance was a reasonable trial

strategy that will not support a claim of ineffective assistance. See State 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 of counsel).

We agree with Tomlin, however, that some of the information that the trial

court elicited from Comiskey was inappropriate and irrelevant. Information

suggesting Tomlin's unfitness as a mother, either in connection with the ongoing

dependency or as a basis for terminating her parental rights, was not relevant to

the issue of EJ's competence to testify.

But Tomlin waived her right to a jury trial. Absentevidence to the

contrary, we presume the judge in a bench trial did not consider improper matters

or inadmissible evidence in rendering a verdict. State v. Gower. 179Wn.2d 851,

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

considered Comiskey's comments or any inappropriate information in assessing

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No. 70318-8-1/12

Tomlin's credibility in the criminal proceeding. Moreover, after interviewing EJ,

defense counsel withdrew him as a potential witness. On appeal, Tomlin does

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 cannot constitute ineffective assistance of counsel.

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

Tomlin contends that the trial court's failure to enter written findings of fact

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

from challenging these decisions on appeal. But the record shows that the 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 of the Evidence

Tomlin contends that the evidence was insufficient to support her

conviction. In particular, she alleges that the evidence fails to support the trial

court'sfindings offact 9, 10, 11, 12, 17, 18, 19, 20, and 21.

When a defendant challenges the sufficiency ofthe evidence following a

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

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No. 70318-8-1/13

findings of fact and, if so, whether the findings support the conclusions of law.

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).

A claim of insufficiency 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 set forth the trial court's reasoning in

assessing the conflicting evidence and testimony. Among other things, the trial

court acknowledged that therewere "some inconsistencies in the evidence." The

court noted 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

the word. Tomlin also points to NS's testimony that he ran 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 a motive for false allegations.

Tomlin suggests that NS's and Sherman's accounts ofthe offense were

too inconsistent to permit a rational trier of fact tofind herguilty. She argues that

NS "said many conflicting things about the event to many people ... All of these

statements cannot be true." Butas the trial court indicated, NS's accounts ofthe

actual offense remained relatively consistent. Cf State v. Alexander, 64 Wn.

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No. 70318-8-1/14

App. 147, 822 P.2d 1250 (1992) (victim's extreme contradictions and

inconsistencies about chronology of abuse and whether it occurred 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 of the 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 the trier offact on issues ofconflicting testimony,

credibility ofwitnesses, and the persuasiveness ofthe evidence).

Viewed in the light mostfavorable to the State, the evidence was sufficient

to permit a rational trier offact to have found all ofthe elements of rape of a child

in the first degree. See RCW 9A.44.073.

Statement of Additional Grounds for Review

In her Statement of Additional Grounds for Review, Tomlin contends that

the trial judge 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 the public defender organization and

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No. 70318-8-1/15

the judge's wife had "years of animosity towards me and my case," the trial judge

was biased against her and should have recused himself.

As evidence of the judge'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 trial judge informed the parties of his wife's

position in the defender organization and stated that she had never worked in the

dependency unit. The judgeoffered to recuse himself on that basis upon

request, but neither party objected.

Tomlin has not identified any evidence to support her allegations of

personal animosity by the trial judge's wife. Nor is there anything in the record

supporting her claims of what EJ would have said if called to testify. After

interviewing EJ, defense counsel concluded that hewas competent but had no

independent memory of the relevant events. Counsel therefore did not call EJ as

a witness.

Because Tomlin's allegations regarding the trial judge rest primarily on

matters that are outside the record on review, we will not consider them on direct

appeal. See State v. McFarland. 127 Wn.2d at 337-38. The mere existence of

adverse rulings does not support an inference that the trial court was biased or

prejudiced. See Rhinehart v. Seattle Times Co., 51 Wn. App. 561, 579-80, 754

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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

emphasize exculpatory DNA evidence. She further alleges that defense counsel

was notqualified to interview her son and failed to question her on the stand in a

manner that would have explained her "accidental distraught misstatements."

Several ofTomlin's allegations of prosecutorial 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

if they do not "inform the court ofthe nature and occurrence ofalleged errors").

The remaining allegations are based on matters outside the record and cannot

be considered on appeal.

Finally, Tomlin challengesthe trial court's determination following the CrR

3.6 hearing that she voluntarily consented to the officers' entry into her

apartment. She argues thatthe shock ofthe untrue allegations, coupled with her

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No. 70318-8-1/17

learning disability, caused her to feel "coerced" and rendered her consent

involuntary. But Tomlin testified at the CrR 3.6 hearing. The trial court's

assessment of her 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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