State v. Manina

• Decision Date: 04 April 2023
• Docket Number: 38468-3-III
• Parties: STATE OF WASHINGTON, Respondent, v. SCOTT S. MANINA, Appellant.
• Court: Washington Court of Appeals

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STATE OF WASHINGTON, Respondent, v. SCOTT S. MANINA, Appellant.

No. 38468-3-III

Court of Appeals of Washington, Division 3

April 4, 2023

UNPUBLISHED OPINION

FEARING, J.

Scott Manina appeals convictions for rape, first degree child molestation, and second degree child molestation. Because sufficient evidence sustains his conviction for rape and his two convictions for first degree child molestation, we affirm those three convictions. We reverse his second degree child molestation conviction for lack of evidence. We reject Manina's alternate contentions of prosecutorial misconduct and ineffective assistance of counsel.

FACTS

Because Scott Manina challenges the sufficiency of the evidence to sustain his convictions, we purloin the facts from trial testimony. We relay those facts in the light most favorable to the State.

This prosecution arises from Scott Manina's sexual contact with his daughter. Scott and Rebecca Manina married in 2002 and divorced in 2018. We refer to Scott Manina as Manina and Rebecca Manini as Rebecca. Rebecca entered the marriage while pregnant with one child from a previous relationship. We give this child the pseudonym "Ralph." The couple begot another son and a daughter, on whom we bestow the pseudonyms "Steven" and "Jane." Jane, the alleged victim of the crimes was born on March 30, 2007. By the time of the first sexual assaults, at age ten, she had received no sex education at school.

In March 2018, when Scott and Rebecca Manina separated, Manina vacated the family home and moved into a recreational vehicle. Manina parked the recreational vehicle at a recreational vehicle park. Although Manina owned rental homes in Spokane at that time, tenants occupied all of those homes. Two months later, Manina moved into one of his rental homes. All three children occasionally visited him and stayed overnight at both the recreational vehicle and the rental home.

During March and April of 2018, when Scott Manina occupied the recreational vehicle, Jane suffered from rawness in her vagina. On instruction from her mother, Jane applied Vaseline to soothe the irritated area. Rebecca Manina taught Jane to apply the Vaseline by herself. Rebecca notified Manina of Jane's need to apply Vaseline to treat the rawness.

When Jane needed to spread the Vaseline while visiting Scott Manina at the recreational vehicle, he insisted on applying the ointment to her vagina. At Manina's instructions Jane laid on her back on Manina's bed, she lifted her legs, and he spread the legs. Manina positioned himself in front of Jane such that he stood in between her legs at the edge of the bed. Manina placed Vaseline on his finger and inserted his finger with the Vaseline into Jane's vagina.

At trial, Jane testified:

Q (By Mr. Martin) Well, do you differentiate on your own body between the outside of your vagina and the inside of your vagina?

A What?

Q Are those two different places for you?

A Yeah.

Q Okay. When your father was applying the Vaseline like you just described, would he put it on the inside, put it on the outside or something else?

A Inside.

Q And is that how you, yourself, would use it when you were trying to treat yourself by putting it inside?

A Yeah.

Report of Proceedings (RP) (July 14, 2021) at 80-81. Jane added:

Q How-and this is going to sound like a weird question. Just do your best. How did you know his finger was on the inside of your vagina when he was putting the Vaseline on you?

A I could feel it.

RP (July 14, 2021) at 83. According to Jane, her father took longer to apply the Vaseline than she did.

When the three children visited Scott Manina at the recreational vehicle, he directed his sons to shower using the park's shower facilities. Manina required that Jane, who turned 11 years of age at the end of March 2018, shower in the recreational vehicle. Manina insisted on helping Jane bathe although Jane needed no assistance. While washing Jane with a washcloth, Manina touched her "bottom," "privates," and "breasts."

RP (July 14, 2021) at 70. When he reached Jane's breasts and vagina, he "grab[ed] [them] a little." RP (July 14, 2021) at 72. Jane felt her father's hands through the washcloth when he washed her vagina. Manina spent more time washing the vaginal region than other body parts. Manina's behavior rendered Jane "uncomfortable." RP (July 14, 2021) at 70, 77.

At the rental home, Jane needed Scott Manina to turn on the shower water because of a stuck faucet. Manina turned the water on only after Jane undressed. If Jane remained dressed when Manina responded to her request for help, he left the bathroom and waited for her to undress before assisting her. Manina did not allow Jane to cover herself with a towel or robe while she waited. On one or more occasions after he turned the water on, and before he left the bathroom, Manina gave Jane a hug while she was naked. He wrapped his arms around her neck and moved his hands down to her "bottom." Manina left his hand on the bottom until Jane broke contact.

Jane suffered from bacterial vaginitis, a bacterial infection in the vagina that causes irritation. Women who have yet to menstruate or are not sexually active rarely contract bacterial vaginitis. In September 2018, Jane told her mother of an odor emanating from her vagina. Rebecca took Jane to a pediatrician, whose testing confirmed bacterial vaginitis and a yeast infection. The pediatrician prescribed an antibacterial cream for external application on Jane's labia majora, the outer part of her vagina, and demonstrated to Jane how to spread the cream. Jane applied the cream on her own while under Rebecca's care.

Jane's pediatrician suspected someone touched Jane inappropriately because girls of Jane's age, who had yet to start periods, generally did not contract bacterial vaginitis. The pediatrician recommended Rebecca Manina call Partners with Families and Children (Partners), who works with Child Protection Services (CPS). When Rebecca told Scott Manina that the pediatrician recommended contacting Partners, he said no.

When Jane notified Scott Manina she needed to apply the external antibacterial cream to her vagina, the father insisted on spreading the cream despite Jane stating she could do so on her own. Although the cream was intended only for external application, Manina applied it to both the inside and outside of his daughter's vagina. Manina employed the same process to smear the prescription cream as he used to apply the Vaseline. Jane did not wear underwear or pants when Manina dispersed the medicated cream. The father applied the cream "internally" with his finger, which rendered Jane uncomfortable. RP (July 14, 2021) at 94.

Jane experienced bacterial vaginitis again in early 2019, so Rebecca Manina scheduled a gynecologist appointment for Jane for March 19, 2019. Nurse practitioner Jennifer Julian examined Jane and diagnosed bacterial vaginitis. Julian also prescribed an antibacterial cream for external use and showed Jane how to apply it.

Jane engaged in a follow-up appointment with Jennifer Julian on April 2, 2019. Both Rebecca and Scott Manina attended and accompanied Jane into the examination room. Julian concluded Jane still struggled with bacterial vaginitis, so the gynecologist nurse practitioner prescribed a different antibacterial cream intended for internal application and showed Jane how to insert the cream with an applicator. Julian did not recommend that either parent apply the antibacterial cream. The practitioner would not advise a father of an 11- to 12-year-old girl to apply the cream.

On one occasion in the spring of 2019, Scott Manina allowed Jane, then age 12, to apply the internal cream on her own, but he held a mirror in front of Jane to assist in the application. Jane saw her father's reflection in the mirror. She felt discomfort when she noticed him looking at her vagina.

Scott Manina treated Jane differently from his sons, Ralph and Steve. Manina, to Jane's discomfort, showed physical affection to her. The father often wrapped his arm around Jane and placed his hand on her leg. Manina punished Jane less severely than her brothers.

According to Ralph, the father treated Jane like the princess of the house. On one occasion, Scott Manina shattered his sons' light sabers because one boy accidently struck Jane with the saber. The father did not want his princess harmed. The father would always sit next to Jane when the children visited. He would lay by Jane on the couch with his arm around her. On one occasion, Ralph observed his father caressing his sister's thigh.

Jane returned to nurse practitioner Jennifer Julian on April 16, 2019. Only Rebecca attended this appointment with Jane. Jane reported difficulty in applying the internal cream, so the gynecologist prescribed an oral medication as a replacement.

On July 2, 2019, Jane, with her mother, went to Jennifer Julian's office again because of continuing bacterial vaginitis. Midwife Mashid Aghasadeghi examined Jane on this visit. After examining Jane, Aghasadeghi, a mandatory reporter, told Rebecca Manina that she intended to call CPS because of information shared by Jane. Aghasadeghi made the call.

Before the report to CPS, clinical psychologist Michelle Estelle assisted Jane in adjusting to her parents' divorce. Estelle also then counseled Scott Manina. After hearing about the allegations of abuse, Estelle ceased seeing Manina, but continued to counsel Jane.

In July 2019, CPS referred Jane to pediatric nurse practitioner Teresa Forshag to review "possible grooming behavior and possible sex abuse by the father." RP (July 19, 2021) at 284. At trial, Teresa Forshag lectured on the anatomy of a vagina. Forshag described the labia majora as the "fleshy" lips "on the outside" of...