State v. Carbary [Second-Degree Rape by a Health Care Provider]

STATE of Washington, Respondent,

v.

Preston Lynn Carbary, Appellant.

In re the Personal Restraint Petition of Preston Lynn Carbary.

Court of Appeals of Washington

Division III

No. 28768-8-III

June 21, 2011.

Shadan Kapri, Senior Deputy Prosecuting Attorney, Stevens County Prosecuting Attorney’s Office Representing the State of Washington.

Preston L. Carbary, Pro Se, for Appellant.

SUMMARY: Preston Lynn Carbary seeks relief from personal restraint imposed for his 2007 Stevens County conviction of three counts of second-degree rape by a health care provider. RCW 9A.44.050(1)(d).

Between October 2004 and January 2005, Mr. Carbary, a licensed mental health counselor in private practice, provided state family preservation services to a family comprised of P.R. and her four children, and P.R.’s boyfriend Daniel Maners and his two children (the P.R./Maners family). In May 2005, P.R. first reported to her physician, Dr. Barry J. Bacon, that Mr. Carbary had repeatedly coerced her into having sexual intercourse and threatened to remove her children from her home if she told anyone. Dr. Bacon contacted authorities and the State eventually charged Mr. Carbary with three counts of second degree rape by a health care provider. A jury found him guilty and he appealed. This court affirmed the judgment and sentence. See State v. Carbary, unpublished opinion No. 26297-9-III (Wa Ct. App. 2008), review denied, 165 Wn.2d 1025 (2009). The appeal mandate was issued on February 12, 2009. This petition followed.

To obtain relief in a personal restraint petition, Mr. Carbary must show actual and substantial prejudice resulting from alleged constitutional errors, or, for alleged nonconstitutional errors, a fundamental defect that inherently results in a miscarriage of justice. In re Pers. Restraint of Cook, 114 Wn.2d 802, 813, 792 P.2d 506 (1990). To avoid dismissal, the petition must be supported by facts, not merely conclusory allegations. Id. at 813-14. The supporting evidence must be based on “more than speculation, conjecture, or inadmissible hearsay,” and failure to meet this burden calls for dismissal of the petition. In re Pers. Restraint of Rice, 118 Wn.2d 876, 886, 828 P.2d 1086 (1992).

The primary theme of Mr. Carbary’s petition is that the rape charges were based upon perjured statements made by P.R. – first to a police detective and later when she signed a Standard Tort Claim Form seeking $3 million from the State stemming from its referral of Mr. Carbary as her family preservation counselor. (PRP Exhibit 1) In particular, he claims P.R. falsely stated that Mr. Maners was not allowed to live in the family residence during the counseling period, but that his daughter J.F.M., who was the subject of a protective order because he allegedly assaulted her, was living in the house instead. Mr. Carbary contends the truth is that Mr. Maners was always present when he was with P.R. at the residence for the counseling sessions, and therefore the alleged rapes could never have occurred. Mr. Carbary contends that P.R. perpetuated her lies in her trial testimony as part of her scheme to falsely accuse him and profit from her civil suit, and that the prosecutor knowingly allowed her false testimony.

Facts

In October 2004, Mr. Maners and P.R. were living together at a residence on Kitt Narcisse Road along with her four children and his two children, including his teenage daughter J.F.M. Mr. Maners was accused of assaulting J.F.M. and on October 22, the court released him on conditions that he live at the Kitt Narcisse Road home unless J.F.M. was living there, and that he not be allowed to go to the premises where J.F.M. was residing. The court entered a restraining order reflecting those conditions. (State’s Supplemental Response, Appendix B1)

On October 25, 2004, P.R. and Mr. Maners entered into a voluntary contract agreement with the Department of Social and Health Services (DSHS) that provided, among other things, for J.F.M.’s supervision by her grandparents; for the parties to enlist the family preservation services of counselor Preston Carbary; and for Mr. Maners to abide by all court orders including the alleged assault incident. (PRP Exhibit 28) Mr. Carbary’s documents filed with this petition indicate that J.F.M was placed with her grandparents in late October, and that she returned to live at the Kitt Narcisse Road home sometime between November 15 and 17, 2004 – after the restraining order against Mr. Maners was lifted (PRP Exhibits 5, 11, 12, 13, 18, 29, 30)

In May and June 2005, P.R. disclosed to Dr. Bacon that Mr. Carbary had raped her in November 2004. In a statement to a sheriff’s detective Fran Lynn, P.R. reported that Mr. Carbary threatened to have her children taken away if she did not do as he said. P.R. said three rapes occurred – all prior to Thanksgiving and in the basement area of the house where the kitchen and her bedroom were located. Mr. Carbary acknowledged to detectives that he always talked to P.R. in this area of the house. P.R. also told Detective Lynn that Child Protective Services (CPS) representative Bill Wilson did not want Mr. Maners living in the house with J.F.M. until the counseling was completed, so Mr. Maners moved into the family’s bus during November and part of December. P.R. said that Mr. Maners would come to the house during the day while J.F.M was in school but would leave after she came home. (PRP Exhibit 20)

The State charged Mr. Carbary with the rapes on September 7, 2005 (State’s Response, Appendix B) The prosecutor’s probable cause affidavit was based upon the reported by P.R., Dr. Bacon and Detective Lynn, as well as Mr. Carbary’s statements. The probable cause affidavit referenced P.R. ‘s statements to Detective Lynn that Mr. Maners was not allowed to live in the home until counseling was completed (State’s Supplemental Response, Appendix A1)

In July 2006, P.R. signed the Standard Tort Claim against the State under penalty of perjury. The document stated that CPS’s safety plan for the family included that Mr. Maners remaining out of the family home. (PRP Exhibit 1 at 3) P.R. ultimately settled her lawsuit against the State in June 2008 for $500,000. (PRP Exhibit 25) Meanwhile, Mr. Cabary’s criminal case proceeded to trial on April 30, 2007.

Mr. Carbary now claims that P.R. lied in her statement to Detective Lynn and in her tort claim when she asserted that Mr. Maners was not allowed to live in the family home. To support his perjury claim, Mr. Carbary appends to his petition his treatment progress notes from ten counseling sessions on or between October 25, 2004 and January 6, 2005. These documents indicate that Mr. Maners participated in the counseling sessions – a fact consistent with DSHS’s ordering of preservation services for the entire P.R./Maners family. Mr. Carbary also supplies his personal affidavit in which he states that Mr. Maners lived in the home with P.R. the whole time; that he met with Mr. Maners and P.R. together during those ten visits; and that at no time did he meet with P.R. alone. (PRP Exhibits 6-16; 17) Mr. Carbary thus contends he has shown that the State’s criminal charges and probable cause affidavit are based upon the perjured statements of P.R. His arguments fail.

Aside from Mr. Carbary’s affidavit statement, there was no evidence in the record before this court that Mr. Maners was actually living in the Kitt Narcisse Road residence during November 2004 when the rapes occurred. At best, Mr. Carbary shows that Mr. Maners participated in counseling sessions as he was supposed to do. In any event, the most critical point is that there is also no evidence to corroborate Mr. Carbary’s affidavit statement that he was never alone with P.R., such that he could have raped her. His affidavit contains mere unsupported self-serving conclusory allegations that do not create a material factual issue and do not command further review in a personal restraint petition. In re Pers. Restraint of Rice, 118 Wn.2d at 886; In re Pers Restraint of Cook, 114 Wn.2d at 813.

Nor has Mr. Carbary made any evidentiary showing that P.R. perjured her trial testimony. First, Dr. Bacon testified that when P.R. reported the rapes to him in May 2005, she said the children were asleep and Mr. Maners was gone from the home at the time. (Report of Proceedings “RP” 189) Defense counsel elicited from P.R. on cross-examination that Mr. Maners lived in the family’s bus in November 2005 during the times when J.F.M. was living in the home with P.R. and the other children. (RP 263-64) The cross-examination essentially clarified P.R.’s more general direct testimony that Mr. Maners was not allowed to be at the house after 4:00 p.m. when the children returned from school. (RP 232) According to P.R., the rapes always occurred late in the evening (after 10:00 p.m.) when the children were asleep and Mr. Maners was not present. (RP 238, 276, 280-81) With respect to J.F.M, the CPS worker Mr. Wilson testified that she was initially removed from the home under a police-authorized emergency placement at the outset of Mr. Maner’s criminal proceedings.

Thereafter, CPS facilitated her removal to her grandmother’s home for a short time before she was returned to the home with P.R. (RP 301, 310-11) P.R. did not give any testimony regarding J.F.M. that was inconsistent with that of Mr. Wilson. (See RP 263-64, 267-68) Neither witness testified to exact dates when referring to J.F.M.’s residential placements. Mr. Wilson did not give any testimony as to where Mr. Maners was residing at any particular time during November 2004.

And in this petition, Mr. Carbary does not provide any evidence from others, e.g., not Mr. Maners, Mr. Wilson, or any of the family members, about where Mr. Maners resided. Moreover, whether or not J.F.M was living at the house when the rapes occurred is not dispositive. The critical fact is that there is no evidence in the record beyond Mr. Carbary’s self-serving statements that he had no opportunity to have been alone with P.R. to commit the rapes. Mr. Carbary provides no evidence of perjury by P.R.; thus, he likewise fails to show there was any apparent perjury for the prosecutor to call to anyone’s attention. Accordingly, his additional claim that the prosecutor improperly used known perjured statements by P.R. as the basis for admitting ER 404(b) evidence of similar misconduct with his prior counseling client (T.C.) is also without merit.

Mr. Carbary next claims the evidence was insufficient to support his rape convictions. He contends the State failed tp rove the requisite element that the rapes occurred during a treatment session, consultation, or interview as required under RCW 9A.44.050(1)(d). His theory is that P.R. gave conflicting testimony as to that element, thus requiring the jury to base its guilty verdicts solely on speculation.

This court already rejected Mr. Carbary’s challenge to the sufficiency of the evidence in the direct appeal, specifically explaining that the trier of fact resolves inconsistencies in the testimony and issues of credibility. See unpublished opinion at 10 (citing State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990)). Claims that were rejected on the merits in the direct appeal are not reconsidered in the personal restraint petition absent a showing “the ends of justice would be served by reexamining the issue[s].” In re Personal Restraint of Gentry, 137 Wn.2d 379, 388, 972.2d 1250 (1999). Mr. Carbary makes no such showing. In re Pers. Restraint of Gentry, 137 Wn.2d 379, 388, 972 P.2d 1250 (1999).

The court thus declines to revisit the sufficiency of the evidence issue, except to observe that the gist of P.R.’s testimony was that Mr. Carbary raped her on three occasions when his legitimate purpose for being at the home was to provide the state-contracted family counseling services. (See RP 276-81, 285) The evidence viewed in light most favorable to the State amply supported all three convictions. State v. Green, 94 Wn.2d 216, 616 P.2d 628 (1980). Again, this court defers to the trier of fact on issues of inconsistent or conflicting testimony. See also State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992). Thus, Mr. Carbary’s attendant claim that the prosecutor committed prejudicial misconduct in closing argument by asserting that the evidence supported each element of rape by a health care provider is also without merit.

Finally, Mr. Carbary claims he received ineffective assistance from his trial counsel. To establish ineffective assistance of counsel, he must show that his attorney performed deficiency and that he was prejudiced by the deficiency. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). There is a strong presumption that counsel performed reasonably. State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987). If counsel’s conduct can be characterized as legitimate trial strategy or tactics, it cannot be the basis of an ineffective assistance claim. State v. McNeal, 145 Wn.2d 352, 362, 37 P.2d 280 (2002).

Mr. Carbary faults counsel for (1) not cross-examining P.R. on her “perjured” trial testimony that J.F.M. was living with her and that Mr. Maners was not allowed to live in the home, (2) not introducing into evidence CPS notes and Mr. Carbary’s progress notes (PRP Exhibits 6-16) that were in defense counsel’s possession and which documented that P.R. and Mr. Maners were always in the counseling sessions together, (3) telling the jury in closing argument that Mr. Maners was not living in the home, (4) failing to move to dismiss the charges prior to the ER 404(b) hearing regarding his similar misconduct with another counseling client, and (5) failing to call an expert witness to testify that P.R. was not Mr. Carbary’s counseling client for purposes of the rape by a health care provider statute.

Mr. Carbary’s first three allegations provide not basis for an ineffective assistance claim when he shows not perjury by P.R., and the only evidence (besides Mr. Carbary’s self-serving statements in this petition) was that Mr. Maners lived outside the home and was not present when the alleged rapes occurred. Moreover, nothing in the progress notes themselves precludes his opportunity to have been alone with the victim and committed the rapes. He fails to show absence of legitimate trial tactics by counsel and she shows not prejudice from any performance of counsel.

Next, Mr. Carbary’s counsel objected, albeit unsuccessfully, to admission of the ER 404(b) prior misconduct evidence. (See RP 2-18) There was otherwise no basis for counsel to move to dismiss the charges, which were amply supported by admissible evidence. The fact that the properly admitted ER 404(b) evidence bolstered the State’s case against Mr. Carbary does not show any deficient performance by his counsel.

Finally, the decision whether to call a witness is also ordinarily a matter of legitimate trial tactics and will not support an ineffective assistance claim. State v. Kolesnick, 146 Wn. App. 790, 812, 192 P.3d 937 (2008). Here, a potential expert witness expressed the opinion to defense counsel that Mr. Carbary’s theory he was not providing services as a health care provider, and that the alleged intercourse did not occur during a treatment session with a client, would not likely be successful. (PRP Exhibit 32) Ms. Carbary offers no expert opinion to the contrary; he shows no deficient performance by counsel.

Mr. Carbary makes no showing that he was prejudiced by any performance of counsel under Strickland standards. His ineffective assistance claim fails.

Mr. Carbary makes no claim entitling him to relief in a personal restraint petition. He fails his burden during Cook and Rice.

Accordingly, the petition is dismissed pursuant to RAP 16.11(b). The court also denies Mr. Carbary’s request for appointed counsel. In re Pers. Restraint of Gentry, 137 Wn.2d at 390; RCW 10.73.150(4).

Dated June 21, 2011

Chief Judge Teresa C. Kulik

*Prosecutor’s Note:  Mr. Carbary appealed this ruling to the Supreme Court of Washington.  The Supreme Court denied review and Mr. Carbary remains in prison for the duration of his sentence.