Personal Restraint Petition Of Brian T Stark, 73580-2

Background

Defendant Brian Stark was convicted by jury of attempted first-degree child molestation (count I), first-degree child molestation (count II), first-degree incest (count III), and third-degree child molestation (count IV); convictions were affirmed on direct appeal and Stark filed a personal restraint petition.
The State relied principally on C.W.’s testimony recounting multiple incidents of sexual abuse occurring from childhood through adolescence at different residences; one pivotal incident (count II) involved an alleged molestation in a half-built house after a bicycle ride with Stark and a cousin, Jeffrey.
Stark and his wife Danelle denied the half-built-house event; trial counsel did not interview or call Jeffrey, though Jeffrey later wrote a posttrial letter denying presence and offering to testify; Jeffrey died in 2014.
Stark claimed (1) ineffective assistance for failure to investigate/call Jeffrey, (2) the trial court’s unanimity instruction improperly commented on the evidence, and (3) count I (attempted molestation) was time-barred; he also challenged community-custody conditions (not yet ripe).
The court rejected the ineffective assistance and unanimity/comment claims for lack of actual and substantial prejudice but accepted the State’s concession that count I was filed after the statute of limitations and vacated that conviction; remanded for resentencing.

Issues

Issue	Stark's Argument	State's Argument	Held
1) Ineffective assistance for not interviewing/calling Jeffrey	Failure to investigate/call Jeffrey was prejudicial because Jeffrey’s denial would have undercut C.W.’s account of the half-built-house (count II) and could have undermined other counts	Counsel’s omission was not outcome-determinative; evidence that would have been supplied by Jeffrey was cumulative and jury disbelieved defense witnesses	Denied — Stark failed to show a reasonable probability of a different outcome (no prejudice)
2) Trial court’s unanimity instruction amounted to an improper judicial comment on the evidence	The instruction’s wording communicated the judge believed multiple molestations occurred, improperly commenting on facts and lowering State’s burden	The court’s instructions as a whole and explicit admonition against commenting on evidence negate any presumed prejudice; no evidence the language actually influenced the jury	Denied — no actual and substantial prejudice shown
3) Statute of limitations for attempted molestation (count I)	Count I was time-barred because the amended information was filed after limitations had run	State conceded the limitations issue	Granted — conviction for attempted molestation vacated; remand for resentencing
4) Challenges to community custody conditions	Conditions allegedly exceed statutory maximums or are unconstitutional	Resentencing will occur, so issues not ripe	Not addressed — reserved because resentencing required

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (established ineffective-assistance two-prong test requiring deficient performance and prejudice)
In re Pers. Restraint of Crace, 174 Wn.2d 835 (framework for prejudice inquiry in collateral attacks under Strickland)
State v. McFarland, 127 Wn.2d 322 (personal-restraint standard applying Strickland)
State v. Petrich, 101 Wn.2d 566 (Petrich unanimity instruction context when multiple acts alleged)
State v. Brush, 183 Wn.2d 550 (discussing impermissible judicial comment on evidence)