Filed Washington State Court of Appeals Division Two
July 12, 2022 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II In the Matter of the Personal Restraint of No. 54542-0-II
JOEL MICHEAL KREBS, UNPUBLISHED OPINION Petitioner.
GLASGOW, C.J.—Joel Micheal Krebs and Tanner Birdsall were each convicted of second
degree rape of SC in separate trials after they had intercourse with SC while she was intoxicated
and incapable of consent. Krebs now seeks relief from personal restraint imposed following this
2016 conviction. He argues he is entitled to a new trial based on the ineffective assistance of his
trial counsel, prosecutorial misconduct, and newly discovered evidence. For the first time in his
reply brief, he argues that he is entitled to a new trial based on his counsel’s failure to timely move
to join his trial with Birdsall’s trial and, alternatively, that he is entitled to resentencing based on
the trial court’s failure to meaningfully consider his youthfulness. We deny his personal restraint
petition (PRP).
FACTS
After all three had consumed alcohol, Krebs and Birdsall raped SC while she was
intoxicated and incapable of consent.1 A jury found that Krebs had sexual intercourse with SC
1 We described the underlying facts of the offense in greater detail in our opinion on direct appeal. See State v. Krebs, No. 49396-9-II, slip op. (Wash. Ct. App. Dec. 4, 2018) (unpublished), https://www.courts.wa.gov/opinions/pdf/D2%2049396-9-II%20Order%20Amending%20 Opinion.pdf. No. 54542-0-II
when she was “incapable of consent by reason of being physically helpless or mentally
incapacitated.” RCW 9A.44.050(1)(b).2 The State tried Birdsall separately from Krebs, several
months after Krebs’s trial. Birdsall’s first trial resulted in a hung jury, but he was convicted of
second degree rape after a second trial.
I. TRIAL
A. Pretrial Motions
Before trial, Krebs’s counsel informed the trial court that he had witnesses prepared to
testify that they had previously consumed alcohol with SC. Counsel explained that SC claimed
“she rarely drinks and doesn’t drink very much” and “her intoxication is a significant issue in this
[case],” so these witnesses would be limited to impeaching SC on that matter. Pet’r’s Reply Br.,
App. K at 5. The State moved in limine to exclude this testimony, and the trial court reserved ruling
until after SC testified. One of the potential defense witnesses that Krebs listed was Jacob Izatt.
See id. at 15.
Krebs also moved the day before trial for a continuance and to join Krebs’s trial with
Birdsall’s pending trial. Counsel referenced a “freight train amount of information that [had] come
forward in the last few days,” including Birdsall’s written statement to law enforcement. Id. at 25-
26. Counsel requested time to “explore the possibility of a joint trial” and argued it may be
appropriate to join the trials so that “everybody would have the opportunity and the benefit of all
the testimony.” Id. at 26. Because Birdsall’s case remained pending, Birdsall refused to testify at
Krebs’s trial. The State asserted that Birdsall did not want to join the trials.
2 The legislature amended RCW 9A.44.050 in 2021, but the amendments did not affect this subsection, so we cite to the current version of the statute.
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The trial court noted that Krebs’s case was already set and confirmed for trial, and it did
not “see a possibility that Mr. Birdsall might want to be joined.” Id. at 29. Accordingly, it denied
Krebs’s motion to continue and, to the extent it was before the court, denied the motion to
consolidate.3
B. Trial
In his opening statement, Krebs’s counsel opined, “There’s a reason that it’s against the
law to drink until you’re 21 years old. And all three of these people were drinking and drinking a
fair amount. The reason is, is that stupid things happen.” Verbatim Report of Proceedings (VRP)
(July 26, 2016) at 103. He described the events of the night as “alcohol-induced stupid decisions
by kids, but nothing that wasn’t willingly agreed to.” Id. at 104.
SC testified at trial that she drank in high school “[m]aybe once or twice” but she “[n]ever
really was a big drinker.” VRP (July 26, 2016) at 37-38. She only drank Mike’s Hard Lemonade
because she did not like the taste of alcohol. SC also testified that alcohol “affects [her] pretty
heavily,” describing herself as “a lightweight” who starts to feel the effects of alcohol after “[t]wo,
maybe three” drinks. Id. at 38.
SC told the jury that on the night of the offense, she had three or four bottles of Mike’s
Hard Lemonade. Then she started “falling down a lot” and “feeling really dizzy.” Id. at 49.
Eventually, she “couldn’t stand.” Id. at 50. SC testified that Krebs and Birdsall carried her into the
bedroom and began to sexually assault her. She told the jury, “I couldn’t move or really talk all
3 Actually hearing the motion to consolidate on the merits would have required joining all affected parties, and Birdsall was not present at this time.
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that much.” Id. at 51. “I could barely keep my eyes open . . . . I felt kind of like paralyzed almost.”
Id. at 53.
When SC woke up the next morning, her vaginal area was in pain, but she could not
remember what had happened the night before. SC went home and became “really sick really fast
and vomited for a number of hours.” Id. at 61. Later in the day, SC began to remember “little bits
and pieces” of what had happened the night before. Id. She called her mother and told her the “few
things that [she] could really remember at that time, which was just falling down, waking up, naked
on the bed, alone.” Id. at 63. SC’s mother suggested that they go to the hospital for a sexual assault
exam. While they were at the hospital, SC continued to remember additional details from the night
before.
When discussing SC’s decisions to go to the hospital and to report the rape to police, the
prosecutor asked SC, “[D]id you have any thoughts about what that might mean for someone else
if you didn’t come forward?” Id. at 67. Before SC responded to this question, Krebs objected, and
the trial court sustained the objection. There was no immediate limiting instruction.
On cross-examination, Krebs’s counsel asked SC whether she had ever consumed alcohol
with Izatt. The State objected, citing its pretrial motion, but the trial court overruled the objection
and permitted SC to answer. SC responded, “No.” Id. at 73. Krebs never called Izatt as a witness.
Sergeant Darrin Wallace testified at trial and described how he set up a recorded
“confrontation call” whereby SC called Krebs and confronted him with her allegations. Id. at 102.
The prosecutor asked Wallace, “[W]hat, if anything, stood out to you during the conversation?”
Id. at 107. Wallace responded that Krebs repeatedly and adamantly denied any sexual contact with
SC. Wallace continued, “[T]here [were] long pauses between her confrontation and his response.
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Normal people that I’ve dealt with --.” Id. At this point, Krebs objected, and the trial court
sustained the objection. Wallace did not finish his sentence, and there was no immediate limiting
instruction.
Krebs also testified in his defense. He said that SC probably had four bottles of Mike’s
Hard Lemonade over the course of a few hours. He testified that SC had been flirting with him and
Birdsall and kissing them and that she consented to having sex with them. Krebs told the jury, “If
I had any doubt in my mind that she did not want to have [] sex with me, I would not have had sex
with her.” VRP (July 27, 2016) at 168. Krebs also testified that SC had “fallen down,” that he had
brought her “a puke bucket and some water,” and that he knew she was under the influence of
alcohol. Id. at 162. He admitted that SC had thrown up.
The trial court instructed the jury, “The evidence that you are to consider during your
deliberations consists of the testimony that you have heard from witnesses, stipulations, and the
exhibits that [the court has] admitted, during the trial.” State’s Resp. to PRP, Attach. E. It also told
the jury, “It is important . . . for you to remember that the lawyers’ statements are not evidence.”
Id.
The jury’s instructions defined “second degree rape” as “sexual intercourse with another
person when the other person is incapable of consent by reason of being physically helpless or
mentally incapacitated.” Id. “A person is physically helpless when the person is unconscious or
for any other reason is physically unable to communicate unwillingness to an act.” Id. “Mental
incapacity is a condition existing at the time of the offense that prevents a person from
understanding the nature or consequences of the act of sexual intercourse whether that condition
is produced by illness, defect, the influence of a substance, or by some other cause.” Id.
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The trial court further instructed the jury, “It is a defense to a charge of Rape in the Second
Degree that at the time of the acts the defendant reasonably believed that [SC] was not mentally
incapacitated or physically helpless. The defendant has the burden of proving this defense by a
preponderance of the evidence,” which “means that you must be persuaded, considering all of the
evidence in the case, that it is more probably true than not true.” Id.; see also RCW 9A.44.030(1).
In closing, Krebs’s counsel lauded Krebs for testifying and reiterated the theme from his
opening statement, saying, “I don’t know how this case can’t be about drinking and being dumb
and being young. We were all there once.” VRP (July 27, 2016) at 204. Counsel argued that the
State failed to show SC was incapable of consent because she testified that she was aware of what
was happening and “just being drunk isn’t enough” to sustain a second degree rape conviction. Id.
at 210. Counsel also highlighted that the jury could acquit Krebs based on evidence that he
reasonably believed SC was able to consent.
The jury found Krebs guilty of second degree rape based on SC’s incapacity to consent. At
sentencing, Krebs’s counsel suggested the bottom of the standard sentencing range would be
“plenty” of punishment for “an 18-year-old high school senior under these circumstances.” VRP
(Sept. 9, 2016) at 40. The trial court imposed a minimum sentence of 7.5 years of confinement,
which was the middle of the standard sentencing range, and a maximum sentence of life.
II. DIRECT APPEAL
Krebs appealed his conviction and sentence to this court and raised several arguments,
including that the State elicited improper opinion testimony from Sergeant Wallace, that the
prosecutor committed misconduct during closing argument, and that Krebs’s trial counsel was
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ineffective for failing to request an exceptional downward sentence based on Krebs’s youth. Krebs,
No. 49396-9-II, slip op. at 12, 16, 24.
Krebs’s claim of improper opinion testimony included a challenge to Wallace’s use of the
phrase “‘normal people,’” arguing that it “implied guilt.” Id. at 19. We held this was not improper
opinion testimony because Wallace was merely “describing what made this confrontation call
unique.” Id. When he used the phrase “‘normal people,’” Wallace did not “directly or indirectly
comment that Krebs was guilty of anything. It [was] simply Wallace’s explanation of what
distinguished this call from others.” Id.
We affirmed Krebs’s conviction and sentence and remanded only for the trial court to
amend his legal financial obligations.
III. PRP
Krebs timely filed this PRP, arguing that ineffective assistance of trial counsel,
prosecutorial misconduct, and newly discovered evidence entitled him to a new trial. Krebs
attached SC’s testimony from Birdsall’s trials, an article on the neuroscience behind alcohol-
induced blackouts, a retired toxicologist’s expert testimony from Birdsall’s trials, and a declaration
from Izatt.
The neuroscience article that Krebs attached was titled, What Happened? Alcohol, Memory
Blackouts, and the Brain, and was authored by a psychiatry professor at Duke University Medical
Center.4 Corrected PRP, App. F at 186. The article explained that alcohol primarily affects the
brain’s ability to transfer information from short-term to long-term memory. It defined “alcohol-
4 Aaron M. White, Ph.D., What Happened? Alcohol, Memory Blackouts, and the Brain, 27 NAT’L INST. OF ALCOHOL ABUSE & ALCOHOLISM 186 (2003).
7 No. 54542-0-II
induced blackouts” as “episodes of amnesia, during which subjects are capable of participating
even in salient, emotionally charged events—as well as more mundane events—that they later
cannot remember.” Id. at 188. And it distinguished between “en bloc blackouts,” where people are
“unable to recall any details whatsoever,” and “fragmentary blackouts,” where people “become
aware that they are missing pieces of events only after being reminded that the events occurred.
Interestingly, these reminders trigger at least some recall of the initially missing information.” Id.
“Research suggests that fragmentary blackouts are far more common than those of the en bloc
variety.” Id. Factors such as the rate at which a person’s blood alcohol content (BAC) rises and
whether they are female may make them more likely to experience some form of blackout.
David Predmore, a retired toxicologist who worked for the Washington State Toxicology
Laboratory from 1971 until 1999, briefly testified at both of Birdsall’s trials to estimate SC’s BAC.
Assuming SC consumed 4 or 5 bottles of Mike’s Hard Lemonade over a period of 3 or 4 hours,
Predmore estimated her peak BAC was somewhere between 0.08 and 0.14. “Most inexperienced
persons, I would expect them to be showing definite signs of intoxication at a .14.” Corrected PRP,
App. I at 227. Predmore defined a “blackout” as “a period of time [when] you don’t remember
what happened.” Id. at 224. He explained that a person’s behavior will not necessarily change
during the period of time that they will be unable to remember in a way that is “different than what
you would have been observing anyway” due to their intoxication. Id. at 225. In other words, a
person would “have no way of determining” whether someone else was experiencing a blackout.
Corrected PRP, App. J at 943.
Izatt declared that he knew SC, Krebs, and Birdsall, that he attended several parties with
SC during and after high school, and that she “would drink five to six drinks of hard alcohol” at
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these parties. Corrected PRP, App. H at 2. Izatt claimed he had “observed [SC] drink alcohol . . .
to the point of extreme intoxication and still be walking, talking, and partying.” Id.
ANALYSIS
We will grant appropriate relief through a timely PRP where the petitioner shows that they
are under unlawful restraint. RAP 16.4(a). But “the petitioner must meet a high standard before
this court will disturb an otherwise settled judgment.” In re Pers. Restraint of Coats, 173 Wn.2d
123, 132, 267 P.3d 324 (2011). Where the petitioner has had a previous opportunity for judicial
review of their claim, they must show either a constitutional error that caused actual and substantial
prejudice or a nonconstitutional error that resulted in a complete miscarriage of justice. Id.
I. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
Krebs argues he was denied effective assistance of counsel at trial because his trial counsel
failed to call an expert witness “familiar with unconsciousness and blackouts caused by
intoxication to explain to the jury how the human brain works.” Corrected PRP at 25-26. He claims
this testimony was “essential to reconcile the testimony of SC” that she was very intoxicated “with
Krebs’ testimony that she appeared to be well aware of her surroundings and her conduct and that
she knowingly participated in consensual sexual intercourse with him.” Id. at 26. The crux of
Krebs’s argument appears to be that people who are experiencing a blackout “act in ways that
appear normal to outsiders.” Id. at 28.
Krebs also suggests that this expert testimony would have shown SC’s statements to be
unreliable because she was incapable of forming any memories of the offense. He claims “SC
could not have recalled events that occurred when she was . . . blacked out” because “her brain
was not functioning as a memory collector at that time.” Id. at 32-33.
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The State argues this is “an improper effort to relitigate a matter settled on appeal” and,
regardless, Krebs’s claim is without merit. State’s Resp. to PRP at 5. “In this case, trial counsel
may very well have wanted to avoid focusing on SC’s impairment and her inability to consent.”
Id. at 9.
We did not resolve this claim on direct appeal. On appeal, Krebs argued only that his trial
counsel was ineffective during sentencing. See Krebs, No. 49396-9-II, slip op. at 1. He did not
allege ineffective assistance during trial. “We may consider a new ground for an ineffective
assistance of counsel claim for the first time on collateral review.” In re Pers. Restraint of Khan,
184 Wn.2d 679, 689, 363 P.3d 577 (2015) (plurality opinion); see also id. at 694 (Yu, J.,
concurring). Accordingly, we address the merits of this claim.
A. Applicable Law
To succeed on a claim of ineffective assistance, Krebs must show that his trial counsel’s
performance was deficient and that the deficient performance prejudiced him. In re Pers. Restraint
of Crace, 174 Wn.2d 835, 840, 280 P.3d 1102 (2012). “Deciding whether to call a witness is a
matter of legitimate trial tactics that presumptively does not support a claim of ineffective
assistance of counsel.” State v. Davis, 174 Wn. App. 623, 639, 300 P.3d 465 (2013). We strongly
presume that counsel’s decisions were strategic. In re Pers. Restraint of Elmore, 162 Wn.2d 236,
252, 172 P.3d 335 (2007). But Krebs can rebut this presumption by showing the absence of a
legitimate trial strategy to support his counsel’s conduct. Id.
In a PRP, it is not enough to speculate that certain additional testimony “‘might have been
helpful.’” In re Pers. Restraint of Cross, 180 Wn.2d 664, 701, 327 P.3d 660 (2014), abrogated on
other grounds by State v. Gregory, 192 Wn.2d 1, 427 P.3d 621 (2018). The petitioner must show
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that, had another witness been called, they “would likely have provided competent, admissible
evidence establishing facts that would require relief.” Id. If Krebs shows a reasonable probability
that, but for his counsel’s deficient performance in failing to call a witness, the outcome of the
proceedings would have been different, then he will have “necessarily show[n] actual and
substantial prejudice,” as required to receive relief through a PRP. Crace, 174 Wn.2d at 842.
“A person is guilty of rape in the second degree when, under circumstances not constituting
rape in the first degree, the person engages in sexual intercourse with another person . . . [w]hen
the victim is incapable of consent by reason of being physically helpless or mentally
incapacitated.” RCW 9A.44.050(1)(b). Physical helplessness and mental incapacity are not
alternative means. State v. Al-Hamdani, 109 Wn. App 599, 603-04, 36 P.3d 1103 (2001).
“Evidence which establishes a rape victim’s inability to understand the nature and
consequences of sexual intercourse is not the kind of technical evidence which requires medical
testimony to decipher.” State v. Summers, 70 Wn. App. 424, 429, 853 P.2d 953 (1993). In addition
to expert testimony estimating the victim’s BAC level at the time of the offense, lay testimony that
the victim “was stumbling, vomiting and passing in and out of consciousness” can show that they
were “debilitatingly intoxicated.” Al-Hamdani, 109 Wn. App. at 609. Lay testimony describing a
person’s level of intoxication and the effects of that intoxication on their memory may be
considered when determining whether they had the capacity to consent. Nelson v. Duvall, 197 Wn.
App. 441, 457, 387 P.3d 1158 (2017).
A defendant may assert as a defense to any charge of rape based on the victim’s mental
incapacity or physical helplessness that “at the time of the offense the defendant reasonably
believed that the victim was not mentally incapacitated and/or physically helpless.” RCW
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9A.44.030(1). This defense does not require the defendant “to prove that the victim could actually
consent,” only that the defendant “reasonably believed [the victim] could consent.” State v.
Lozano, 189 Wn. App. 117, 124, 356 P.3d 219 (2015). “[I]f the State proves beyond a reasonable
doubt that a person cannot consent to sexual intercourse, the victim’s words or conduct indicating
freely given agreement to have sexual intercourse will not excuse the defendant’s conduct.” Id. at
125. But this evidence could still be relevant to support the defendant’s reasonable belief defense,
which must be proved by a preponderance of the evidence. RCW 9A.44.030(1); Lozano, 189 Wn.
App. at 125-26 n.6.
B. Krebs’s Trial
Krebs fails to rebut the presumption that his trial counsel’s decision not to call an expert
toxicology witness was strategic. At trial, Krebs’s counsel emphasized that all three people
involved were drinking heavily, and he sought to minimize the charges against his client by
describing them as “alcohol-induced stupid decisions by kids.” VRP (July 26, 2016) at 104. Again
in closing, he insisted that this case was about “drinking and being dumb and being young” and
argued that “just being drunk isn’t enough” to convict Krebs of rape. VRP (July 27, 2016) at 204,
210. Krebs’s counsel aimed to minimize the effects of the intoxication on SC and to suggest to the
jury that all three people were equally intoxicated and, therefore, equally responsible for the events
that occurred. Expert testimony recalling the amount of alcohol SC consumed compared to her
body size, estimating SC’s BAC, theorizing about how that amount of alcohol affected SC, and
describing in detail how alcohol affects a person’s brain would likely have undermined Krebs’s
theory of the case and focused the jury’s attention on SC’s debilitated state. Therefore, Krebs’s
counsel’s decision not to call an expert toxicology witness was likely strategic.
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Krebs also fails to show prejudice. He emphasizes testimony that an expert witness gave
at Birdsall’s trials explaining that an observer would not necessarily be able to tell whether another
person is experiencing an alcohol-induced blackout. But that expert never testified that an observer
would be unable to tell when another person is extremely intoxicated. Rather, he said that when a
person is experiencing a blackout, their behavior is not necessarily “different than what you would
have been observing anyway” due to their intoxication. Corrected PRP, App. I at 225. Although
Krebs insisted that SC had consented to the sexual intercourse, he also corroborated some of SC’s
testimony about her level of intoxication, including that he observed her falling down and throwing
up. The jury did not require expert testimony to understand the implications of this behavior.
The jury was instructed that Krebs was guilty of second degree rape if he had sexual
intercourse with SC while she was physically helpless or mentally incapacitated, meaning while
she was unconscious, physically unable to communicate her unwillingness to have sexual
intercourse, or prevented from understanding the nature or consequences of the act due to the
influence of a substance. SC testified that during the rape, she “couldn’t move or really talk all that
much,” “could barely keep [her] eyes open,” and “felt kind of . . . paralyzed.” VRP (July 26, 2016)
at 51, 53. She also testified about her alcohol consumption prior to the rape and how it affected
her, including that she was “falling down a lot,” “feeling really dizzy,” and “couldn’t stand.” Id.
at 49-50. Krebs fails to show a reasonable probability that, had a toxicologist provided expert
testimony, the jury would have made a different decision. It is not enough to speculate that certain
additional testimony “‘might have been helpful.’” Cross, 180 Wn.2d at 701.
Additionally, Krebs’s argument that “SC could not have recalled events that occurred when
she was . . . blacked out” because “her brain was not functioning as a memory collector at that
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time” is contrary to the scientific article that Krebs attached to his PRP. Corrected PRP at 32-33.
In that article, a psychiatry professor explained that blackouts may be “fragmentary,” meaning
people may only be “missing pieces of events.” Corrected PRP, App. F at 188. A person who
experienced a fragmentary blackout may also be able to recall some of the “initially missing
information” when they are triggered by a reminder. Id. This scientific explanation is consistent
with SC’s testimony that she began to recall “little bits and pieces” of what had happened the night
before and then continued to remember additional details throughout the day after the rape. VRP
(July 26, 2016) at 61. Krebs fails to show ineffective assistance of counsel in this regard as well
because he fails to show that an expert would have testified differently about fragmentary
blackouts.
II. PROSECUTORIAL MISCONDUCT
Krebs specifically challenges two questions that the prosecutor asked witnesses during
trial. He argues the prosecutor asked SC a question that was “phrased to cause the factfinder to
conclude that petitioner is a dangerous sex offender” and asked Sergeant Wallace a question that
implied “the detective could determine from the confrontation call that [Krebs] was guilty.”
Corrected PRP at 33. Krebs further argues that his trial counsel was ineffective because counsel
failed to move to strike the improper questions or move for a mistrial.
The State again asserts that Krebs is asking the court to relitigate a matter settled on direct
appeal, and it argues that he fails to provide support for his allegations. On direct appeal, Krebs
argued the prosecutor committed misconduct during closing argument. See Krebs, No. 49396-9-
II, slip op. at 1. He did not specifically challenge the prosecutor’s conduct when questioning
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witnesses. He did, however, challenge Wallace’s testimony and argue that it implied Wallace
believed Krebs was guilty. See id. at 16.
To prove prosecutorial misconduct, Krebs must show that “the prosecutor’s conduct was
both improper and prejudicial.” State v. Emery, 174 Wn.2d 741, 756, 278 P.3d 653 (2012). Because
Krebs objected to both instances of alleged misconduct, he may show prejudice by showing a
substantial likelihood that the prosecutor’s improper conduct affected the jury’s verdict. Id. at 760.
Because Krebs is raising these claims on collateral review, he must also show that the prejudice
was actual and substantial. In re Pers. Restraint of Monschke, 160 Wn. App. 479, 496, 251 P.3d
884 (2010).
A. Question to SC
The prosecutor asked SC whether she had “any thoughts about what [it] might mean for
someone else if [she] didn’t come forward” and report the rape to police. VRP (July 26, 2016) at
67. Before SC could respond, Krebs objected, and the trial court sustained the objection. Even
assuming the prosecutor’s question was improper, Krebs fails to show prejudice.
Division One has held that a defendant failed to establish prejudice where his objections to
the prosecutor’s comments were sustained and the trial court instructed the jury to disregard any
questioning that was ruled inadmissible. State v. Edvalds, 157 Wn. App. 517, 525, 237 P.3d 368
(2010). We presume the jury follows the court’s instructions. Id.
Here, Krebs objected to the prosecutor’s question before SC offered any responsive
testimony for the jury to consider, and the trial court sustained the objection. Although Krebs did
not move to strike the question or request a curative instruction at that time—perhaps in an effort
not to call additional attention to the question—the trial court instructed the jury before its
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deliberations that the evidence for it to consider consisted of the witness testimony, stipulations,
and admitted exhibits. The trial court specifically reminded the jury that “the lawyers’ statements
are not evidence.” State’s Resp. to PRP, Attach. E.
SC was precluded from offering any testimony in response to the question, the prosecutor’s
question was not evidence for the jury to consider during its deliberations, and we presume the
jury followed its instructions. Krebs fails to show that this alleged misconduct affected the outcome
of his trial.
B. Question to Sergeant Wallace
The prosecutor asked Sergeant Wallace whether anything “stood out” to him about the
confrontation call he listened to between SC and Krebs. VRP (July 26, 2016) at 107. Wallace
recalled Krebs repeatedly and adamantly denying any sexual contact and “long pauses” between
SC’s statements and Krebs’s responses. Id. He continued, “Normal people that I’ve dealt with --,”
but Krebs objected before Wallace completed his sentence, and the trial court sustained the
objection. Id. This challenge fails because Krebs is precluded from recasting an argument that was
decided on direct appeal.
An issue that was raised and rejected on the merits on direct appeal cannot be raised again
in a PRP, “unless we determine that the interests of justice require relitigation of this issue.” In re
Pers. Restraint of Knight, 196 Wn.2d 330, 341, 473 P.3d 663 (2020). “A petitioner may not avoid
this requirement ‘merely by supporting a previous ground for relief with different factual
allegations or with different legal arguments.’” In re Pers. Restraint of Yates, 177 Wn.2d 1, 17,
296 P.3d 872 (2013) (quoting In re Pers. Restraint of Davis, 152 Wn.2d 647, 671, 101 P.3d 1
(2004)). For example, “[a] defendant may not recast the same issue as an ineffective assistance
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claim; simply recasting an argument in that manner does not create a new ground for relief or
constitute good cause for reconsidering the previously rejected claim.” In re Pers. Restraint of
Stenson, 142 Wn.2d 710, 720, 16 P.3d 1 (2001).
On direct appeal, we addressed a claim that Wallace gave improper opinion testimony
because his “use of the phrase ‘normal people’ implied guilt.” Krebs, No. 49396-9-II, slip op. at
19. We held that Wallace testified to his opinion on “what made this confrontation call unique,”
but he did not testify improperly because “his use of the phrase ‘normal people’” did not “directly
or indirectly comment that Krebs was guilty of anything. It [was] simply Wallace’s explanation of
what distinguished this call from others.” Id. Krebs may not recast this improper opinion testimony
claim from his direct appeal as a prosecutorial misconduct claim in his PRP. Supporting a
previously considered ground for relief with a different legal argument “does not create a new
ground for relief or constitute good cause for reconsidering the previously rejected claim.” Stenson,
142 Wn.2d at 720.
C. Ineffective Assistance
Krebs argues that his trial counsel’s failure to move to strike the prosecutor’s questions or
to request a mistrial constituted ineffective assistance, and this argument also fails. Krebs insists,
“‘When an objection is sustained with no further motion to strike the testimony and no further
instruction for the jury to disregard the testimony, the testimony remains in the record for the jury’s
consideration.’” Pet’r’s Reply Br. at 6-7 (quoting State v. Stackhouse, 90 Wn. App. 344, 361, 957
P.2d 218 (1998)). But the challenged questions here did not result in any improper testimony.
Contrary to showing deficient performance, the record shows that Krebs’s counsel
promptly objected to both instances of alleged prosecutorial misconduct, the objections were
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sustained, and the State’s witnesses were therefore precluded from offering any responsive
testimony that may have been inappropriate for the jury to consider. Krebs fails to show any
ineffective assistance.
III. NEWLY DISCOVERED EVIDENCE
Krebs claims he is entitled to a new trial based on the newly discovered evidence of a
witness, Izatt, who would have impeached SC’s testimony regarding her prior experiences
consuming alcohol. According to Krebs’s PRP, “Trial counsel obviously did not know of the
existence of Mr. Izatt and/or his relationship with SC. Had he known . . . , he would have called
[Izatt] as a witness.” Corrected PRP at 36. In reply, Krebs seeks to reframe this argument as an
ineffective assistance of counsel claim and argue that trial counsel failed to investigate SC’s
tolerance of alcohol. Neither claim is supported by the record.
A petitioner’s restraint is unlawful if “[m]aterial facts exist which have not been previously
presented and heard, which in the interest of justice require vacation of the conviction.” RAP
16.4(c)(3). To prevail on a request for a new trial based on newly discovered evidence, Krebs must
show, among other things, that the evidence was discovered after the trial and that it could not
have been discovered before trial using due diligence. In re Pers. Restraint of Lui, 188 Wn.2d 525,
569, 397 P.3d 90 (2017). “We can certainly defer to a trial lawyer’s decision against calling
witnesses if that lawyer investigated the case and made an informed and reasonable decision
against conducting a particular interview or calling a particular witness.” State v. Jones, 183 Wn.2d
327, 340, 352 P.3d 776 (2015).
The record shows that Krebs was aware of Izatt as a potential witness prior to the start of
trial and that he was prepared to offer testimony impeaching SC regarding her prior experience
18 No. 54542-0-II
with alcohol. See Pet’r’s Reply Br., App. K at 5 (informing the trial court that counsel was prepared
to offer testimony to impeach SC’s statements that “she rarely drinks and doesn’t drink very
much”); id. at 15 (listing Izatt as a potential defense witness for Krebs’s trial). The record does not
support Krebs’s characterization of Izatt’s potential testimony as newly discovered evidence.
Before Krebs’s trial, the State moved to exclude evidence impeaching SC on her prior
experience with alcohol, and the trial court reserved ruling. See Krebs, No. 49396-9-II, slip op. at
21. But Krebs did not attempt to offer this evidence after SC testified at trial. Id. It is likely that
Krebs’s counsel decided not to call Izatt as a witness because, on cross-examination, SC denied
ever drinking with Izatt. The record shows that counsel specifically investigated witnesses who
could impeach SC on the topic of her alcohol consumption and made an informed decision not to
call Izatt as a witness after the trial began. Krebs’s ineffective assistance argument also fails.
IV. REPLY
Krebs raises two additional arguments for the first time in his reply brief. He argues that
trial counsel was ineffective for failing to timely move to join Krebs’s trial with Birdsall’s trial
because Birdsall would have corroborated Krebs’s testimony that SC “appeared to be capable of
consent.” Pet’r’s Reply Br. at 12. And Krebs argues that he is entitled to resentencing “given the
changes in law related to youthful mitigators.” Id. at 17.
A reply brief should “be limited to a response” to issues already raised. RAP 10.3(c).
Generally, we will not review issues raised for the first time in a reply. Bergerson v. Zurbano, 6
Wn. App. 2d 912, 926, 432 P.3d 850 (2018). We have discretion to consider a claim on the merits
“despite technical flaws” where doing so would “‘serve the ends of justice.’” Id. (quoting RAP
19 No. 54542-0-II
1.2(c)). However, Krebs has not shown that reaching these additional arguments would serve the
ends of justice.
CONCLUSION
We deny Krebs’s PRP.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
Glasgow, C.J. We concur:
Cruser, J.
Price, J.