FILED 


JULY 14,2015 


In the Office of the Clerk of Court 


W A State Court of Appeals, Division III 


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 


DIVISION THREE 


STATE OF WASHINGTON, ) 

) No. 32995-0-III 

Respondent, ) 

) 

v. ) 

) 

GERALD W. MILLER, ) UNPUBLISHED OPINION 

) 

Appellant. ) 

KORSMO, J. - Gerald Miller appeals his conviction and exceptional minimum 

sentence for the first degree child molestation of his daughter, four-year-old G.M., 

arguing that counsel was ineffective in failing to raise a corpus delicti challenge to his 

numerous admissions to the crime. We affirm. 

FACTS 

Mr. Miller was indicted in Georgia in 1999 on charges ofincest, child molestation, 

and aggravated child molestation, involving his young daughter.l He reached a plea 

agreement by which he entered sexual offender treatment on the child molestation count 

1 The Georgia indictment also alleged that the prosecutor was seeking to introduce 

evidence that he had molested his stepdaughter in 1987. 
No. 32995-0-111 

State v. Miller 

and was placed on probation for five years; the other two counts were dismissed. After 

completing his probation in 2005, the charge was dismissed. 

Mr. Miller married R.M., the mother of his daughters L.M. and G.M., in 2000. 

These two children were born in Colorado in 2006 and 2008. In 2011, the family moved 

from Colorado to Oakville, Washington. The incident giving rise to the charge at issue in 

this case occurred February 19,2013. 

The family was watching television together and Mr. Miller had G.M. on his lap. 

He was tickling the child. R.M. looked over and noticed that he was holding the child's 

leg with one hand and rubbing her vaginal area with fingers from his other hand through 

her clothing. R.M. decided it was time for G.M. to go to bed and sent her to bed. Two 

days later, R.M. took her two daughters and left for Yakima where she reported the 

incident to law enforcement and Child Protective Services. 

Detective Darrin Wallace interviewed Mr. Miller at his workplace. Mr. Miller 

gave a written statement, admitting to touching both girls through their clothing on three 

occasions while tickling them. His description of the event was similar to R.M.'s 

description, but it was never tied to the specit1c charged February incident. In his 

statement he thought he needed additional treatment. 

Mr. Miller was arrested about a week later. The prosecutor filed a single charge of 

child molestation in the first degree and also alleged the presence of two aggravating 

factors: the defendant abused a position of trust and the victim was particularly 

2 

No. 32995-0-111 

State v. Miller 

vulnerable. During his incarceration, Mr. Miller told his cellmate about the allegations 

and admitted to him that he tickled his youngest daughter between the legs and obtained 

an erection from the behavior. 

The matter proceeded to jury trial. Both R.M. and the cellmate testified as 

described, although the cellmate only testified in rebuttal. The detective read Mr. 

Miller's written statement to the jury; the statement itself also was admitted as an exhibit. 

Mr. Miller took the stand and denied molesting his daughter and denied making the 

statements attributed to him by the detective and the cellmate. He explained that he 

signed the written statement without reading it. The trial court declined to allow the 

prosecutor to cross examine Mr. Miller about the Georgia case, ruling that his testimony 

did not open the door to discussing that issue. 

The jury convicted Mr. Miller as charged and found two aggravating factors: he 

abused a position of trust and the victim was particularly vulnerable. The trial court 

imposed an exceptional minimum term of 180 months in prison.2 Mr. Miller then timely 

appealed. 

2 The trial court declined to count the Georgia case as a prior offense, sparing Mr. 

Miller life in prison as a persistent offender. The State has not cross appealed that 

ruling. 

3 

No. 32995-0-III 

State v. Miller 

ANALYSIS 

Mr. Miller's appeal challenges the admission of his statement, arguing that his 

counsel was ineffective for failing to object on corpus delicti grounds, and the imposition 

of an exceptional minimum sentence. We address first the ineffective assistance claim 

before turning to the sentencing contention. 

Ineffective Assistance o/Counsel 

The effectiveness of counsel is judged by the two-prong standard ofStrickland v. 

Washington, 466 U.S. 668, 104 S. Ct. 2052,80 L. Ed. 2d 674 (1984). That test is whether 

or not (1) counsel's performance failed to meet a standard of reasonableness, and (2) actual 

prejudice resulted from counsel's failures. Id. at 690-92. In evaluating ineffectiveness 

claims, courts must be highly deferential to counsel's decisions and there is a strong 

presumption that counsel performed adequately. A strategic or tactical decision is not a 

basis for finding error. Id. at 689-91. When a claim can be disposed of on one ground, a 

reviewing court need not consider both Strickland prongs. State v. Foster, 140 Wn. App. 

266,273, 166 P.3d 726 (2007). 

Washington uses the term corpus delicti in two distinct senses. State v. Lopez 

Angulo, 148 Wn. App. 642, 200 P.3d 752 (2009), review denied, 170 Wn.2d 1009 (2010). 

First, it can refer to the sufficiency of the evidence to support a conviction. Id. at 648. It 

can also refer to an evidentiary foundation requirement-before a confession is admitted 

4 

No. 32995-0-III 

State v. Miller 

into evidence, there must be a prima facie showing that a crime occurred. Id. at 648-52. 

This second meaning, the evidentiary corpus delicti rule, is at issue here. 

Mr. Miller argues that his counsel was ineffective in failing to assert an evidentiary 

corpus delicti objection to the admission of his statement. His contention fails for at least 

three reasons. 

First, it is doubtful that the corpus delicti rule has application here. Miller was 

charged with molesting G.M., February 19,2013. His statement admitted to molesting 

both daughters on at least three occasions. While his description of tickling the child and 

then touching her vagina was consistent with R.M.' s description of the charged incident, 

he did not expressly address that occasion in his statement. Indeed, the court heard 

argument from counsel about the statement at the beginning of trial since it covered 

multiple instances of touching. Report of Proceedings at 4-7. The court excluded the 

Georgia case on ER 404(b) grounds, but ruled that Mr. Miller's statement was admissible 

under that rule. 3 Id. at 7-12. The parties and the court clearly saw the statement as 

addressing more than just the charged incident. Given the lack of express reference to the 

February 19 incident, it is difficult to consider this statement a confession or admission to 

the charged offense that would even be subject to the evidentiary corpus delicti rule. It is 

understandable that counsel did not raise the argument. 

3 Mr. Miller has not challenged that ruling in this appeal. 

5 

No. 32995-0-III 

State v. Miller 

A second reason that the appellate claim fails is our decision in Lopez Angulo. 

There we expressly rejected the same contention that Mr. Miller makes here-that the 

State had to establish every element of the offense before the statement could be 

admitted.4 148 Wn. App. at 656-57. Instead, as in homicide cases, the corroborating 

evidence need only establish the gravamen of the offense. Id. at 656. In the case of child 

sex abuse, there need only be a showing of a sexual act with a minor. Id. 

In this case, R.M.'s testimony was sufficient to make the necessary showing. Her 

testimony established purposeful touching of the victim's intimate area. That was 

sufficient foundation to admit the defendant's statement.5 Trial counsel could not have 

successfully objected on the basis Miller now alleges. Counsel did not fail to perform 

effectively. 

Finally, we note an important tactical reason for avoiding this issue. The State had 

evidence that Mr. Miller had previously offended in Georgia against another daughter 

and was alleged to have molested a stepdaughter prior to that. If a successful objection 

4 Thus, effectively rendering a confession admissible only if it is unnecessary to 

the State's case. This approach also denies the State the natural inference that the 

purpose of sexual touching is sexual gratification. E.g., State v. Land, 172 Wn. App. 593, 

601,295 P.3d 782 (2013). 

5 Even under Mr. Miller's theory of corpus delicti, the State did produce evidence 

of sexual gratification by the cellmate's testimony. The testimony came after the 

statement was admitted, but still corroborates that element. 

6 

No. 32995-0-III 

State v. Miller 

had been lodged here in a timely manner, typically before trial, the court might have 

reconsidered its exclusion of the prior Georgia matters as a method of proving the 

defendant's intent while touching his child. This was a risk that counsel might very 

wisely decide was not worth taking. For this reason, too, the decision to not challenge 

the statement on corpus delicti grounds did not indicate that counsel failed his client. 

F or all three reasons, the claim of ineffective assistance fails. 

Exceptional Minimum Sentence 

Mr. Miller also challenges his exceptional minimum sentence, arguing that the 

evidence did not support the jury's findings. Properly viewed, the evidence did allow the 

jury to find both aggravating factors. 

A factual challenge is reviewed on appeal under the clearly erroneous standard. 

State v. Grewe, 117 Wn.2d 211,218,813 P.2d 1238 (1991). The finding will be reversed 

only if no substantial evidence supports it. Id. 

To establish the abuse of a position of trust aggravating factor, there must be 

evidence that the defendant was in a position of trust relative to the victim, and that the 

defendant used that position to facilitate the commission of the crime. RCW 

9.94A.535(3)(n). In determining whether the defendant was in a position of trust the court 

should look to the duration and degree of the relationship to determine whether the 

defendant was in a position of trust. Grewe, 117 Wn.2d at 218. The court must then 

7 

No. 32995-0-II1 

State v. Miller 

determine whether the defendant used that position to facilitate the commission ofthe 

crime. State v. Bedker, 74 Wn. App. 87,95,871 P.2d 673 (1994). 

Here, Mr. Miller was a father and caregiver to the victim for the entirety ofher life 

(more than four years). This establishes that he was in a position oftrust relative to the 

victim. The evidence presented here also indicates that in his caregiving role he would 

play with his children and surreptitiously molest them under the guise oftickling.6 

According to his confession the molestations only occurred because of momentary lapses 

ofjudgment in situations where the molestation could be accomplished with extreme ease. 

These situations only occurred because of his position oftrust relative to his daughters. 

Consequently, there was evidence to support a finding that he abused a position oftrust to 

facilitate the commission of the crime of child molestation. 

The other aggravating factor found by the jury was that the victim was particularly 

vulnerable. To support this finding there must have been evidence that Mr. Miller knew 

or should have known that O.M. was either particularly vulnerable or was incapable of 

resistance. RCW 9.94A.535(3)(b). Extreme youth alone can support such a finding, 

6 Appellant argues that Mr. Miller's fatherhood merely created an opportunity, 

pointing to State v. P.E. T for the proposition that "[m]ere opportunity created by a 

person's position is not enough from which to conclude that the position of trust 

facilitated the commission of the crime." State v. P.E.T, 67 Wn. App. 292,304,834 

P.2d 1051 (1992). However, P.B.T. does not aid Mr. Miller. There the court allowed an 

inference that where the perpetrator enjoyed a position of trust with respect to the victim, 

it was a logical inference that the position of trust was used to facilitate the crime. Id. at 

305. 

8 

No. 32995-0-III 

State v. Miller 

even where age of the victim is an element ofthe crime. State v. Fisher, 108 Wn.2d 419, 

425, 739 P.2d 683 (1987); State v. Stevens, 58 Wn. App. 478, 794 P.2d 38 (1990) 

(holding a seven year old as particularly vulnerable because of her youth alone). The 

pertinent inquiry is whether the evidence distinguishes the victim from other victims of 

the same crime. Fisher, 108 Wn.2d at 424-25. 

Here, we not only have a four year old victim, but the record also indicates that the 

victim was unable to provide any statement concerning the crime and that the victim was 

likely unaware that the touching was improper at all. Thus, there are multiple evidentiary 

bases for determining that G.M. was particularly vulnerable. 

The record supports the jury's findings. 

Affirmed. 

A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to 

RCW 2.06.040. 

I CONCUR: 

9 

No. 32995-0-III 

FEARING, J.-(concurrence) I concur in the majority's ruling, including the ruling 

that Gerald Miller did not receive ineffective assistance of counsel. I write separately 

because I disagree with one of the grounds on which the majority holds that trial counsel 

was not ineffective. 

The majority writes that the confession uttered to Detective Darrin Wallace is not 

barred by the corpus delicti evidentiary rule because Gerald Miller's confession to 

touching his daughter's vagina did not expressly reference the February 19,2013 incident 

for which the State charged Miller. The record is not clear as to whether Miller's 

confession was to his conduct on February 19 but he did not put a date on the conduct, or 

whether Miller confessed to criminal conduct on one or more other dates. The majority 

may propose that evidentiary rules do not apply to the State's introduction of testimony 

regarding a confession to a crime, if the accused never dates the crime confessed. 

The State never argued this point before the trial court and does not forward this 

contention on appeal. We should not base our decision on a ground never advocated by 

the State and to which Miller has had no notice or opportunity in which to respond. This 

court does not review issues not argued, briefed, or supported with citation to authority. 

RAP 10.3; Valente v. Bailey, 74 Wn.2d 857, 858,447 P.2d 589 (1968); Avellaneda v. 
No. 32995-0-II1 


State v. Miller (concurrence) 


State, 167 Wn. App. 474,485 n.5, 273 P.3d 477 (2012). This court should not raise new 

issues without first giving the parties the chance to brief them. RAP 12.1. There are 

obvious due process problems in affirming a trial court ruling in a criminal proceeding on 

an alternative theory against which the defendant has had no opportunity to present an 

argument. State v. Adamski, 111 Wn.2d 574,580,761 P.2d 621 (1988). 

I CONCUR: 

2