Appeal from Superior Court of King County. Docket No: 94-1-00379-4. Date filed: 03/10/95. Judge signing: Hon. Carmen Otero.
Petition for Review Denied October 8, 1997,
Authored by Mary K. Becker. Concurring: Faye C. Kennedy, Ann L. Ellington.
The opinion of the court was delivered by: Becker
BECKER, J. -- Appellant Robert Conklin has held a number of positions in law enforcement and is also an attorney. Although he was never a physician, for over 20 years Conklin gave physical examinations to boys whom he befriended. Eventually he was charged with child molestation and indecent liberties. The defense trial strategy was to admit the examinations took place but deny that their purpose was sexual gratification. The strategy was unsuccessful and Conklin was convicted.
His primary theory on appeal is that his lawyer provided ineffective assistance. We affirm.
Of the 38 witnesses the State called at trial, 15 testified that as adolescents or young men the defendant touched their penis, testicles, or anus in the course of a physical examination. Others testified to physical examinations with the defendant during which they felt pressure to submit to a "hernia check" but refused to do so. The testimony revealed a general pattern. Conklin would become acquainted with a teenage boy, often after becoming friendly with the boy's family. Conklin would take the boy to visit his home on Lake Sammamish, entertain him with stories from his war-time army service and his former occupation as an FBI agent, and take him water-skiing, target shooting, and out to eat. Conklin would mention he was a student of medicine, and ask whether the boy had received a physical lately to ascertain whether he was fit to play sports. He sometimes disparaged the adequacy of a physical given by the boy's physician.
Conklin would take the boy into a room of his home which contained a medical bed, a skeleton, and wall certificates. He would direct the boy to strip down to his underwear and proceed to check his eyes and ears and reflexes. Later, often on a subsequent visit, Conklin would say he wanted to check the boy again. Conklin would take him to the "examination room," have the boy remove all of his clothes, and again check not only his ears, eyes and reflexes, but also touch and inspect his testicles.
Conklin took the stand and testified that he received first aid training in classes as part of his own education and as part of job training. The State and Conklin stipulated that Conklin is not and never has been a medical doctor or a medical student.
A jury found Conklin guilty on four counts of child molestation in the third degree and one count of indecent liberties; it found Conklin not guilty on one count of child molestation in the first degree. Conklin appeals from the judgment entered on the jury's verdict.
Conklin argues that his trial counsel provided ineffective assistance, thereby denying him a fair trial. Whether an attorney renders ineffective assistance is a question of law which we answer after reviewing the entire record. *fn1 To succeed on his ineffectiveness claim, Conklin must show: (1) that his counsel's representation fell below an objective standard of reasonableness based on consideration of all the circumstances, and (2) that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. *fn2 Scrutiny of counsel's performance is highly deferential and courts will indulge in a strong presumption that representation is reasonable. *fn3 The purpose of the requirement of effective assistance of counsel is to ensure a fair and impartial trial. *fn4 "Deficient performance is not shown by matters that go to trial strategy or tactics." *fn5
The State concedes Conklin's assertion of ineffective assistance with regard to count three. In light of the trial testimony, the statute of limitations barred prosecution on this count. A motion to dismiss would have been granted. *fn6 There was no tactical reason for not moving to dismiss. We accept the State's concession of ineffective assistance and reverse the conviction as to count three.
We reject all other arguments of ineffective assistance. As an attorney, Conklin was able to and did participate to an unusual degree in his own defense. The strategy he and his lawyer chose to pursue, as revealed during opening statements, was to admit most of the State's factual allegations, but deny that the examinations were conducted for the purpose of sexual gratification: *fn7
Bob admits that he provided the physicals that he gave, he admits when they occurred, and he will tell you why they occurred. ...