Filed Washington State Court of Appeals Division Two
October 16, 2018
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 49396-9-II
Respondent,
v.
JOEL MICHAEL KREBS, UNPUBLISHED OPINION
Appellant.
SUTTON, J. — Joel M. Krebs appeals his conviction of second degree rape. Krebs argues
that (1) the State failed to present sufficient evidence of the essential element that the victim was
incapable of consent, (2) the prosecutor committed misconduct during her closing argument, (3)
the State elicited improper opinion testimony, (4) the trial court violated his right to a fair trial and
abused its discretion in its evidentiary rulings, (5) cumulative errors require reversal, (6) his trial
counsel was ineffective for not requesting an exceptional downward sentence, (7) the sentencing
court ordered improper conditions of community custody, and (8) the sentencing court erred by
sealing the victim’s sexual assault protective order. Krebs also asks this court to clarify whether
the sentencing court ordered the Department of Corrections (DOC) suggested conditions of
community custody. In his statement of additional grounds (SAG),1 Krebs claims that insufficient
evidence supports his conviction, the prosecutor committed misconduct during closing, the trial
1 RAP 10.10. No. 49396-9-II
court erred in its evidentiary rulings, and the sentencing court erred by imposing legal financial
obligations (LFO’s).
We hold that (1) the State presented sufficient evidence that the victim was incapable of
consent, (2) the prosecutor did not commit misconduct during closing, (3) the State did not elicit
improper opinion testimony, (4) the trial court did not violate Krebs’ right to a fair trial or abuse
its discretion in its evidentiary rulings, (5) because there is no error, the cumulative error doctrine
does not apply, (6) Krebs did not receive ineffective assistance of counsel at sentencing, (7) the
sentencing court ordered appropriate conditions of community custody, and (8) Krebs has waived
his argument that the sentencing court erred by sealing the victim’s sexual protective order. We
also clarify that the sentencing court did not order the DOC suggested conditions of community
custody. Also, because his first three SAG claims are the same as in his direct appeal, we hold
that the claims fail for the same reasons. As to his fourth SAG claim, we hold that Krebs’ claim
fails because the LFO’s ordered were mandatory. We affirm Krebs’ conviction.
FACTS
I. BACKGROUND
On February 9, 2016, SC2 posted on social media that she would be returning to her
hometown, Montesano, that weekend. Krebs, SC’s former boyfriend, and Tanner Birdsall, a
friend, saw the post and arranged to meet SC that night. The three met at Birdsall’s home. After
a night of drinking, SC woke up with a foggy memory and a feeling that she had had sexual
2 After review of the parties’ briefs and the record in this matter, and in light of the existing sexual assault protective order entered under GR 15(c)(2) to protect the victim’s identity, the court will identify the victim by her initials. We intend no respect.
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intercourse the previous night. Eventually, she began to remember the night and remembered that
the two men had sex with her. On March 8, Krebs was charged with second degree rape.
Prior to trial, defense counsel filed a motion in limine to exclude testimony that SC was
drugged the night of the rape because there was no direct evidence that she had been drugged. The
trial court denied the motion, holding that SC could testify as to how she felt and what she thought
occurred that night. Also, prior to trial, the State filed a motion in limine to exclude evidence that
would rebut SC’s claim that she rarely drank alcohol. Defense counsel objected, and the trial court
reserved ruling until it heard SC’s testimony at trial.
II. SC’S TESTIMONY
SC testified at trial. She described herself as someone who does not drink very much and
testified that alcohol affects her more than the average person. SC testified that she is allergic to
Vicodin and it makes her throw up, gives her migraines, and makes her violently ill. On February
9, she went to Birdsall’s house and, once there, she drank alcoholic lemonade. Birdsall and Krebs
were also drinking. The three began to play a drinking game called beer pong. At some point, the
three decided to play “strip beer pong” wherein each time someone made a mistake in the game,
that person would take off an article of clothing. Verbatim Report of Proceeding (VRP) (July 26,
2016) at 50. SC agreed to play but said she would not take off her underwear.
SC testified that Birdsall had recently broken his hand and the prosecutor asked if Birdsall
had prescription medication. Defense counsel objected and the trial court sustained the objection.
SC had three or four alcoholic lemonades at Birdsall’s house. At some point, she began to feel
fuzzy, and she fell down multiple times. SC went to the bathroom to sit down and began to feel
dizzy. This was atypical from her past experiences drinking alcohol. She got up and began to fall,
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but Krebs caught her. He then carried her to the bedroom because she could not stand. She
remembers Krebs and Birdsall lying next to her on the bed and they began to kiss and touch her.
While in the bed she could not move and could barely speak. The men continued to touch
her and then took off her underwear. She tried to say no and asked what the men were doing.
While the men were touching parts of her body, SC testified that she was panicking but she could
not stop them.
The next thing that SC remembers is Birdsall forcing his penis into her vagina. While
Birdsall was doing this, Krebs put his penis in her mouth. SC wanted it to stop, but she was unable
to move. SC remembers that Birdsall said he could not ejaculate because Krebs was in the room.
SC believes, but is not sure, that Krebs left, and returned after Birdsall had ejaculated.
Krebs then forced his penis into SC’s vagina. SC screamed and cried and asked him to
stop; however, he did not relent. During this time, she stated that she was physically unable to
move. After Krebs had ejaculated, SC passed out. She awoke nude and stumbled for her clothing,
Birdsall asked if she needed anything. Because she was hyperventilating, she asked for her inhaler.
She then passed out again and woke up with her clothes on. She did not remember any part of the
assault until later on.
She left the house the next morning but did not remember anything that had happened. She
asked the men if anything sexual had happened between them and the men denied any sexual
activity. She asked if something sexual had happened because she had a sharp pain and a burning
sensation inside and outside of her vagina. After she went to her mother’s house, her memory of
the previous night began to come back to her. Her mother took her to the hospital. SC then notified
police that she suspected that she had been raped. The police told SC that she should do a
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“confrontation call,” whereby she would confront the men and the police would record the
conversation. VRP (July 26, 2016) at 68.
On cross-examination, defense counsel asked if SC had previously given a statement that
she knew everything that the men were doing to her. SC confirmed that she had done so. Defense
counsel then read another of SC’s statements where she had stated that while Birdsall was raping
her, Krebs left the room. According to her previous statement, SC was unconscious and went in
and out of consciousness for some time during the rape.
III. SERGEANT WALLACE’S TESTIMONY
Sergeant Darrin Wallace testified at trial. Wallace detailed his years of experience
investigating sexual abuse cases. Wallace assisted Deputy Jason Wecker in the investigation of
this case. Deputy Wecker did not have much experience in sexual abuse cases and Wallace
coached him through the investigation. Wallace explained that Wecker had informed him that SC
had told Wecker that Krebs and Birdsall had raped her the previous night. She had described how
she had blacked out and could not remember what had happened.
Sergeant Wallace then described confrontation calls in general and specifically described
SC’s confrontation calls with the men. While describing the calls, Wallace described what he was
doing. He stated,
[Sergeant Wallace]: And I would write [SC] notes during the call to kind of steer her in a direction of what questions to ask. [The State]: And why is that done? Is that to help them so there’s not dead silence or . . . [Sergeant Wallace]: It’s - maybe not to fill dead silence, but the victims are so nervous and so --
VRP (July 26, 2016) at 105.
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Defense counsel objected to the use of the word “victim” and the trial court sustained the
objection. VRP (July 26, 2016) at 105. While describing SC’s and other alleged victims’
emotional states during confrontation calls, Wallace described how nervous they can be and stated,
[The State]: And what issues or difficulties were there in - in either prepping [SC] or setting up the equipment for this particular conference call or confrontation call? [Sergeant Wallace]: When you’re doing those calls, people doing the calls are very nervous. Nervous by being there, they’re nervous about what happened, they’re nervous about acknowledging what happened to them, so sometimes they get stuck on talking to the perpetrator and kind of just - - [Defense Counsel]: Objection. Reference to “perpetrator.”
VRP (July 26, 2016) at 105-06. The trial court did not sustain the objection but encouraged
Wallace to use language other than the term “perpetrator.” VRP (July 26, 2016) at 106. Wallace
then described Krebs’ multiple denials of any sexual activity during the confrontation call. When
asked what stood out to him about SC’s confrontation call with Krebs, Wallace said that “when
she was confronting him during the calls there was long pauses between her confrontation and his
response. Normal people that I’ve dealt with --.” VRP (July 26, 2016) at 107. Defense counsel
objected to the use of the word “normal” and the trial court sustained the objection. VRP (July 26,
2016) at 107-08.
IV. OTHER TRIAL TESTIMONY
Deputy Wecker also testified at trial. While interviewing Krebs, Krebs admitted to Wecker
that both he and Birdsall had sex with SC that night.
Lisa Curt, the sexual assault nurse examiner (SANE), who examined SC, also testified at
trial. SC had told her that she had fallen at Birdsall’s home and Krebs took her to a bedroom where
she had passed out. SC then remembered coming in and out of consciousness. Later on, SC woke
up crying and screaming telling Krebs to stop because it hurt. The following day, SC began to
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remember bits of what had happened. All she could remember was that she had fallen but could
not recall anything that occurred that would make the inside of her vagina hurt.
Krebs testified at trial. He said that SC got drunk at Birdsall’s home and, while she was
sitting in the bathroom, she threw up. His other testimony was largely consistent with SC’s, but
he denied that he assaulted SC and claimed that SC consented to having sex.
V. CLOSING ARGUMENT AND SENTENCING
During closing argument, the prosecutor argued that SC had testified that she had been
unconscious when Krebs put his penis inside of her; thus, consent necessarily had not happened
when the sex began. The State also pointed out that anyone who was falling down, vomiting, and
needing to be carried because they could not stand, was in no condition to consent to sex. The
State focused on SC’s lack of memory following the incident to demonstrate SC’s inability to
consent.
Defense counsel focused his closing argument on the amount of alcohol that Krebs and SC
drank that night and he argued that they were young, drunk, and dumb. Defense counsel argued
that SC could not have been physically unable to communicate and unwilling to act because she
told them no, which, he argued, negated the consent element of the second degree rape charge.
In rebuttal, the State characterized defense counsel’s argument as blaming SC. The State
said that defense counsel was trying to distract the jury from the fact that SC was unconscious that
night and there had to be consent when the sexual act started. The jury ultimately found Krebs
guilty of second degree rape.
At the sentencing hearing, defense counsel stated that he was not asking for an exceptional
downward sentence. He acknowledged the standard range and asked the sentencing court to
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impose the low end of the standard range of six and a half years. Defense counsel focused his
argument on the fact that Krebs was 18 when the crime occurred and he was still young. Defense
counsel also objected to some of the community custody conditions that the State was seeking and
that DOC had suggested. The sentencing court stated that it considered Krebs’ youthfulness, but
imposed a midrange sentence of seven and a half years. The sentencing court also imposed a
restitution fee, a victim assessment fee, a criminal filing fee, and a DNA collection fee.
The sentencing court orally imposed all community custody conditions requested by the
State, including those suggested by DOC. However, the sentencing court did not include those
conditions in its written judgment and sentence. Lastly, at sentencing, both the State and defense
counsel signed an order sealing SC’s sexual assault protection order to protect SC’s identity. The
sentencing court ordered that the protection order be sealed. Appellant appeals.
ANALYSIS
I. INCAPABLE OF CONSENT
A. LEGAL PRINCIPLES
Krebs argues that the State failed to prove the essential element of second degree rape, that
the victim was incapable of consent.3 We disagree.
Evidence is sufficient to support a conviction if, when viewed in the light most favorable
to the State, it permits any reasonable juror to find the essential elements of the crime beyond a
reasonable doubt. State v. Condon, 182 Wn.2d 307, 314, 343 P.3d 357 (2015). A claim of
insufficiency of evidence admits the truth of the State’s evidence and all reasonable inferences that
3 Krebs makes this same claim in his SAG. We hold that this claim fails for the same reasons detailed in this section.
8 No. 49396-9-II
a juror can draw from that evidence. Condon, 182 Wn.2d at 314. “All reasonable inferences from
the evidence must be drawn in favor of the State and interpreted most strongly against the
defendant.” State v. Hosier, 157 Wn.2d 1, 8, 133 P.3d 936 (2006). Circumstantial and direct
evidence are equally reliable. State v. Ozuna, 184 Wn.2d 238, 248, 359 P.3d 739 (2015). We
defer “to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the
persuasiveness of the evidence.” State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004).
The State charged Krebs with violating RCW 9A.44.050(1)(b) which provides that a
person is guilty of second degree rape “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.”
“Physically helpless” is defined as a person who “is unconscious or for any other reason is
physically unable to communicate unwillingness to an act.” RCW 9A.44.010(5). “Mentally
incapacitated” refers to a “condition existing at the time of the offense which 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 from some other cause.”
RCW 9A.44.010(4). “A finding that a person is mentally incapacitated for the purposes of RCW
9A.44.010(4) is appropriate where the jury finds the victim had a condition which prevented him
or her from meaningfully understanding the nature or consequences of sexual intercourse.” State
v. Ortega-Martinez, 124 Wn.2d 702, 711, 881 P.2d 231 (1994). The State must prove each of the
essential elements of the crime beyond a reasonable doubt. State v. Oster, 147 Wn.2d 141, 146,
52 P.3d 26 (2002).
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Mental incapacity and physical helplessness are not alternative means; they describe the
ways in which a victim may be incapable of giving consent. See State v. Al-Hamdani, 109 Wn.
App. 599, 606-07, 36 P.3d 1103 (2001). The State is not required to make an election or prove
sufficientcy of the evidence under both physical helplessness and mental incapacity. Al-Hamdani,
109 Wn. App. at 607.
B. CAPABILITY
Krebs argues that the evidence does not support the jury’s finding that SC was incapable
of consent because of either physical helplessness or mental incapacity. We disagree.
Krebs argues that the evidence did not show that SC was physically unable to communicate
her unwillingness or that she did not understand the nature of the act; therefore, she was not
mentally incapacitated like the victim in Al-Hamdani. In Al-Hamdani, the victim estimated that
she had consumed at least 10 alcoholic drinks and, according to expert testimony, her estimated
blood alcohol level was between .1375 and .21 at the time of the sexual assault. Al-Hamdani, 109
Wn. App. at 609. In addition, a witness described the victim’s conduct prior to the assault as
“stumbling, vomiting, and passing in and out of consciousness . . . .” Al-Hamdani, 109 Wn. App.
at 609.
Here, while there was no evidence about SC’s blood alcohol level, there was evidence of
visible intoxication. Like the victim in Al-Hamdani, the evidence established that SC was
experiencing severe symptoms of intoxication on the night of the assault, including dizziness,
stumbling, vomiting, and passing in and out of unconsciousness. When viewed in the light most
favorable to the State, a rational fact finder could find that sufficient evidence existed to prove
beyond a reasonable doubt that SC was debilitated by intoxicants at the time of the sexual
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intercourse and that she was incapable of meaningfully understanding the nature or consequences
of sexual intercourse at the time it occurred because she was intoxicated. Thus, because she was
debilitated by intoxicants, sufficient evidence supports the jury’s finding that SC was unable to
consent by virtue of her mental incapacity at the time. Thus, sufficient evidence supports each of
the essential elements of the second degree rape conviction.
Krebs also argues that SC was not physically helpless because she was able to
communicate her unwillingness to engage in sexual intercourse, citing State v. Bucknell, 144 Wn.
App. 524, 183 P.3d 1078 (2008). In Bucknell, the State charged the defendant with second degree
rape, alleging that the victim “was physically helpless because she was suffering from Lou
Gehrig’s disease.” 144 Wn. App. at 528. Division One reversed the conviction because the
victim’s “ability to communicate orally, despite her physical limitations, likely did not render her
‘physically helpless’ as contemplated by RCW 9A.44.050(1)(b).” Bucknell, 144 Wn. App. at 530.
Although the victim was unable to move from the chest down, she was fully “able to talk, answer
questions and understand and perceive information.” Bucknell, 144 Wn. App. at 529-30.
In contrast to the circumstances in Bucknell, here the evidence does not indicate that SC
was incapacitated only with respect to her physical movement. It is true that SC told Krebs to
stop, and that she cried and screamed throughout the assault; however, she had no memory of the
night, passed out at least once, and was at times too intoxicated to communicate her unwillingness
to engage in sexual intercourse. SC’s testimony amply supports the inference that during the
assault, she was in and out of consciousness and unable to effectively communicate. Because she
was unable to effectively communicate her unwillingness to have sex, sufficient evidence supports
the jury’s finding that SC was unable to consent by virtue of her physical incapacity. Thus,
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sufficient evidence supports the jury’s finding that SC was incapable of consent because of either
physical helplessness or mental incapacity.
Finally, Krebs also argues that the jury’s finding that SC was physically helpless or
mentally incapacitated is not supported by sufficient evidence because she could remember and
she could describe the assault. On the contrary, SC primarily described being in and out of
consciousness, interspersed with a few flashes of memory and minimal details. The jury could
have reasonably concluded that SC was unable to appreciate the nature and consequences of the
sexual intercourse at the time it occurred. See Ortega-Martinez, 124 Wn.2d at 716 (“It is important
to distinguish between a person’s general ability to understand the nature and consequences of
sexual intercourse and that person’s ability to understand the nature and consequences at a given
time and in a given situation.”). Viewing the evidence and the inferences in the light most
favorable to the State, sufficient evidence supports the jury’s finding that SC was incapable of
consent because of either physical helplessness or mental incapacity, and we affirm the conviction.
Therefore, for the reasons enumerated above, we hold that this argument fails.
II. PROSECUTORIAL MISCONDUCT
Krebs argues that reversal of his conviction is required because the prosecutor committed
misconduct during closing argument.4 Specifically, Krebs argues that the prosecutor committed
misconduct by repeatedly misstating evidence and relying on it to prove guilt, and by denigrating
defense counsel and implying that counsel was lying.
4 Krebs makes this same claim in his SAG. We determine that that claim fails for the same reasons detailed in this section.
12 No. 49396-9-II
To establish prosecutorial misconduct, the defendant must prove that the prosecuting
attorney’s remarks were both improper and prejudicial. State v. Emery, 174 Wn.2d 741, 760, 278
P.3d 653 (2012). In analyzing prejudice, courts do not look at the comments in isolation, but in
the context of the total argument, the issues in the case, the evidence, and the instructions given to
the jury. State v. Yates, 161 Wn.2d 714, 774, 168 P.3d 359 (2007). “The prosecutor has a duty
not to use statements that are not supported by the record and that may tend to prejudice the
defendant.” State v. Ray, 116 Wn.2d 531, 550, 806 P.2d 1220 (1991). “[A] prosecutor has wide
latitude to argue reasonable inferences from the evidence.” State v. Thorgerson, 172 Wn.2d 438,
453, 258 P.3d 43 (2011).
Here, because Krebs did not object at trial, he is deemed to have waived any error, “unless
the prosecutor’s misconduct was so flagrant and ill intentioned that an instruction could not have
cured the resulting prejudice.” Emery, 174 Wn.2d at 760-61. “Under this heightened standard,
the defendant must show that (1) ‘no curative instruction would have obviated any prejudicial
effect on the jury’ and (2) the misconduct resulted in prejudice that ‘had a substantial likelihood
of affecting the jury verdict.’” Emery, 174 Wn.2d at, 761 (quoting Thorgerson, 172 Wn.2d at
455).
B. MISSTATING EVIDENCE
Krebs argues that two portions of the State’s closing argument constituted improper
misstatements of the evidence. Krebs argues that the prosecutor’s suggestion that SC testified that,
during the incident, she was in and out of consciousness was improper. However, during cross-
examination of SC, defense counsel specifically quoted a statement that SC had previously given
where she had stated that she was “coming in and out a lot” during the incident. VRP (July 26,
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2016) at 77. Further, the SANE nurse read from her interview with SC and specifically stated that
SC remembered “coming to off and on . . . .” VRP (July 27, 2016) at 146. Thus, the State did not
misstate the evidence when it argued that SC was in and out of consciousness during the incident
because this argument was supported by testimony presented to the jury.
Krebs also argues that the prosecutor “repeatedly told the jury that [SC] had testified that
she was unconscious when Krebs . . . started having sex with her” and that was improper. Br. of
Appellant at 21-22. Although he does not cite to specific provisions in the record, it appears that
this argument by the State occurred a total of four times during its closing and rebuttal argument.
It is true that SC never specifically testified that she was unconscious at the moment that Krebs
began to have sex with her. However, there was evidence that indicated that she was in fact
unconscious when it occurred. The SANE nurse read from her interview with SC, and stated,
She started drinking and had more than her usual. She remembers stumbling to the bathroom and her ex-boyfriend caught her and carried [her] to the bedroom and she passed out. The next - she remembers coming to off and on and her ex saying some things to her, but she couldn’t exactly recall what they were. She just knew that he was talking . . . . Later on she woke up, crying and screaming and telling him to stop because it hurt. She woke up again really confused and noticed that she was naked and had the door shut . . . . All she remembers is falling a few times, but nothing that would make her hurt inside her vagina, deep inside.
VRP (July 27, 2016) at 146-47. Further, SC testified that the day after the incident, she spoke with
Krebs and asked for clarification on what happened the night before because she had little memory
of it. Specifically, she wanted assurances that nothing sexual had happened between them. She
later testified that the day after the incident, when relaying information to her mother, she could
14 No. 49396-9-II
only remember “falling down, waking up, naked on the bed, alone. And at that point that’s all I
could really remember.” VRP (July 26, 2016) at 63. It was not until noon of the day after the
incident that SC’s memory began to come back to her.
Although it is true that SC did not specifically testify to being unconscious at the moment
Krebs assaulted her, this statement was supported by the evidence presented at trial. Thus, the
prosecutor did not misstate the evidence because it was supported by the facts at trial. Therefore,
we hold that this argument fails.
C. DENIGRATING DEFENSE COUNSEL
Krebs argues that the prosecutor’s comments about defense counsel were an attempt to
distract the jurors from the evidence and these comments suggested that defense counsel was
dishonest which also constitutes misconduct. He argues that, because it is improper for the
prosecutor to disparagingly comment on defense counsel’s role or impugn the defense lawyer’s
integrity, reversal is required, citing Thorgerson. We disagree.
Krebs also argues that it was improper for the prosecutor in rebuttal to tell the jury that it
was defense counsel’s belief that it was “somehow the victim’s fault” and to imply that defense
counsel’s argument was that “because you’re young and drinking you can do whatever you want.”
Br. of Appellant at 22; VRP (July 27, 2016) at 215. However, as explained above, the prosecutor
has a wide ability to respond to defense counsel’s arguments. Thorgerson, 172 Wn.2d at 453. In
Krebs’ closing argument, his counsel stated, “I said at the beginning there’s a reason it’s against
the law to drink and be under 21. And yeah, Joel drank, so did [SC]. And this is a unique situation
where alcohol cuts both ways.” VRP (July 27, 2016) at 204. Thus, in context the prosecutor was
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responding to the argument that SC shared responsibility in the assault, and thus, the prosecutor’s
argument was not improper.5
Krebs also claims that the prosecutor’s argument was improper when she accused defense
counsel of blaming the victim for being assaulted and argued that defense counsel was “trying to
direct” jurors away from the fact that SC was unconscious. Br. of Appellant at 22; VRP (July 27,
2016) at 215-16. In his closing, defense counsel responded by arguing that “[s]he was a willing
participant,” and “[i]s she telling the truth? Is she confused because she was so intoxicated? Is
she being influenced by other people to do things? [. . .] None of this do we really know, right?”
VRP (July 27, 2016) at 210, 214. Defense counsel was trying to get the jury to focus on other
things besides the evidence that SC was unconscious. The prosecutor’s argument was not
improper because it responded to defense counsel’s arguments. Therefore, we determine that this
argument fails.
III. IMPROPER OPINION TESTIMONY OF GUILT
Krebs next argues that reversal is required because Sergeant Wallace gave improper
opinion testimony of Krebs’ guilt. Krebs argues that improper opinion testimony was elicited
5 Further, defense counsel arguably invited this argument, or clearly foresaw this argument, because he cautioned the jury from listening to the State when it made this exact argument:
Okay. You know, the State is going to get up and say - well, I hate to use - to say - I won’t say it. I will imply it. He’s saying because she got drunk and ran around in her underwear that I think she deserved it. That’s not what we’re saying at all. That’s not what we’re saying at all.
VRP (July 27, 2016) at 210.
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when Wallace testified (1) about his training and experience in “sex crimes,” (2) that he “coached”
less experienced officers how to handle sex crime cases, (3) that SC had told him that she was
raped by Krebs and Birdsall, and (4) using the terms “victim,” “perpetrator,” and “normal.” Br.
of Appellant at 26-27.
No witness may testify, directly or indirectly, to the guilt of the defendant. State v.
Kirkman, 159 Wn.2d 918, 937, 155 P.3d 125 (2007). Testimony that “does not directly comment
on the defendant’s guilt or veracity, helps the jury, and is based on inferences from the evidence,
[] is not improper opinion testimony.” State v. Johnson, 152 Wn. App. 924, 930-31, 219 P.3d 958
(2009). “Impermissible opinion testimony regarding the defendant’s guilt may be reversible error
because such evidence violates the defendant’s constitutional right to a jury trial, which includes
the independent determination of the facts by the jury.” Kirkman, 159 Wn.2d at 927. An error of
constitutional magnitude is presumed prejudicial and “the State bears the burden of proving it was
harmless beyond a reasonable doubt.” State v. Lynch, 178 Wn.2d 487, 494, 309 P.3d 482 (2013).
However, a lay witness may testify to opinions or inferences that are based upon rational
perceptions that help the jury understand the witness’s testimony, and that are not based upon
scientific or specialized knowledge. ER 701.
B. SERGEANT WALLACE’S TESTIMONY
None of Wallace’s allegedly improper opinion testimony actually constitutes improper
opinion testimony. Wallace’s testimony about his training and experience, testimony about
coaching newer officers, and testimony relaying what Deputy Wecker had told SC, were not
opinions of Krebs’ guilt, but were proper recitations of the facts. Wallace’s testimony did not
17 No. 49396-9-II
directly or indirectly comment on Krebs’ guilt. Thus, we hold that none of this testimony was
opinion testimony or was improper.
As to Wallace’s use of “victim” and “perpetrator” during his testimony, the context is
important. Wallace testified on direct examination about “confrontation calls” between the victim
and the accused when he used these words. Although Krebs argues that Wallace repeatedly
referred to SC as a “victim,” the record does not support this claim. Wallace, while talking about
confrontation calls, spoke generally about victims and stated,
[Sergeant Wallace]: And I would write [SC] notes during the call to kind of steer her in a direction of what questions to ask. [The State]: And why is that done? Is that to help them so there’s not dead silence or. [Sergeant Wallace]: It’s - maybe not to fill dead silence, but the victims are so nervous and so --
VRP (July 26, 2016) at 105. Krebs objected to the use of the word victim and the trial court
sustained that objection. This is not an instance of a witness opining that SC was a victim and
necessarily that Krebs was guilty; rather, Wallace was explaining the notes he writes during
confrontation calls.
While describing the format of a confrontation call, Wallace described the individuals
receiving the calls as perpetrators, and defense counsel objected. The trial court did not sustain
the objection but encouraged Wallace to use different language. Again in the context of his
testimony, Wallace was not referring to Krebs as the perpetrator, but was describing these types
of calls. He stated,
18 No. 49396-9-II
[The State]: And what issues or difficulties were there in - in either prepping [SC] or setting up the equipment for this particular conference call or confrontation call? [Sergeant Wallace]: When you’re doing those calls, people doing the calls are very nervous. Nervous by being there, they’re nervous about what happened, they’re nervous about acknowledging what happened to them, so sometimes they get stuck on talking to the perpetrator and kind of just - -
VRP (July 26, 2016) at 105-06. From the context, it is clear that Wallace was not giving an opinion
that Krebs was the perpetrator of a rape; rather, he was explaining why people on confrontation
calls are nervous.
Lastly, Krebs argues that Wallace’s use of the phrase “normal people” implied guilt. When
describing the actual confrontation call and describing what stood out to him, Wallace said, “[a]nd
when she was confronting him during the calls there was long pauses between her confrontation
and his response. Normal people that I’ve dealt with --.” VRP (July 26, 2016) at 107. Defense
counsel objected and the trial court sustained the objection. Here, Wallace did give an opinion,
describing what made this confrontation call unique. However, his use of the phrase “normal
people” does not directly or indirectly comment that Krebs was guilty of anything. It is simply
Wallace’s explanation of what distinguished this call from others. Thus, we hold that none of this
testimony constitutes improper opinion testimony.
IV. EVIDENTIARY RULINGS
Krebs argues that the trial court abused its discretion when it excluded evidence that SC
drank much more often than she testified, and because the trial court erred, his constitutional right
to present a defense was violated. We disagree.
19 No. 49396-9-II
We review a Sixth Amendment right to present a defense claim under a three-step test.
First, the evidence that a defendant desires to introduce “‘must be of at least minimal relevance.’”
State v. Jones, 168 Wn.2d 713, 720, 230 P.3d 576 (2010) (quoting State v. Darden, 145 Wn.2d
612, 622, 41 P.3d 1189 (2002)). A defendant only has a right to present evidence that is relevant.
Jones, 168 Wn.2d 720. Second, if the evidence is relevant, the burden shifts to the State to show
that the relevant evidence “‘is so prejudicial as to disrupt the fairness of the fact-finding process at
trial.’” Jones, 168 Wn.2d at 720 (quoting Darden, 145 Wn.2d at 622). Third, “the State’s interest
in excluding prejudicial evidence must be balanced against the defendant’s need for the
information sought, and relevant information can be withheld only if the State’s interest outweighs
the defendant’s need.” State v. Horn, 3 Wn. App.2d 302, 310, 415 P.3d 1225, (2018). This court
reviews the first prong for an abuse of discretion and the second and third prong de novo. Horn,
3 Wn. App. 2d at 310-11.
A trial court abuses its discretion when its decision is based on untenable grounds or
untenable reasons. State v. Turner, 143 Wn.2d 715, 724, 23 P.3d 499 (2001). “A decision is based
‘on untenable grounds’ or made ‘for untenable reasons’ if it rests on facts unsupported in the record
or was reached by applying the wrong legal standard.” State v. Rohrich, 149 Wn.2d 647, 654, 71
P.3d 638 (2003) (quoting State v. Rundquist, 79 Wn. App. 786, 793, 905 P.2d 922 (1995)).
“Evidence offered to impeach is relevant only if (1) it tends to cast doubt on the credibility
of the person being impeached, and (2) the credibility of the person being impeached is a fact of
consequence to the action.” State v. Allen S., 98 Wn. App. 452, 459-60, 989 P.2d 1222 (1999). An
erroneous evidentiary ruling that violates the defendant’s constitutional rights is presumed
prejudicial unless the State can show the error was harmless beyond a reasonable doubt. State v.
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Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985). An error is harmless beyond a reasonable
doubt if there is no reasonable doubt that the jury would have arrived at the same verdict if it was
allowed to hear the excluded evidence. State v. Coristine, 177 Wn.2d 370, 389, 300 P.3d 400
(2013).
B. EVIDENCE OF SC’S TESTIMONY RELATED TO HER PRIOR ALCOHOL USE
Krebs claims that “[b]efore trial, the court granted the prosecution’s request to exclude
testimony from witnesses who would have rebutted [SC’s] claims that she ‘rarely’ drank or got
drunk.” Br. of Appellant at 31. However, contrary to Krebs’ claim, the trial court reserved ruling
on this motion stating,
Well, we will see what the witness testifies to. So, I am not prepared today to rule that out automatically, depends on the subject of [SC’s] testimony. Just off-hand, the fact that somebody has drank before, she is certainly subject to cross examination, by then we get into the point about introducing, that would be evidence of a prior inconsistent behavior, which is about matters that aren’t really at issue, so probably wouldn’t be admitted on that basis, so -- that a person got drunk before . . . .
So they would have to know evidence about how that rebuts rarely drinks. So right now, I don’t know how that would do that, other than other people have drunk with her on certain occasions.
VRP (July 25, 2016) at 5-6. Defense counsel did not raise this issue again after SC testified.
During her direct examination, SC described herself as someone who does not drink very
much and testified that alcohol affects her more than the average person. SC testified that she is
allergic to Vicodin and it makes her throw up, gives her migraines, and makes her violently ill.
On February 9, she went to Birdsall’s house and, once there, she drank four alcoholic lemonade
drinks. At some point, she began to feel fuzzy, and she fell down multiple times. SC went to the
bathroom to sit down and began to feel dizzy. This was atypical from her past experiences drinking
21 No. 49396-9-II
alcohol. She got up and began to fall, but Krebs caught her. He then carried her to the bedroom
because she could not stand. She remembers Krebs and Birdsall lying next to her on the bed and
they began to kiss and touch her. While in the bed, she could not move and could barely speak.
During her cross-examination, defense counsel asked her specifically whether she had previously
drank with these specific individuals.
Contrary to Krebs’ claim, the trial court did not exclude evidence that SC drank much more
often than she testified to drinking. Defense counsel was not precluded from cross-examining or
introducing witnesses to impeach SC’s testimony about her prior alcohol use. Therefore, because
the trial court did not error, we hold that Krebs’ right to present a defense was not implicated or
violated, and thus, his argument fails.
B. SC’S TESTIMONY ABOUT VICODIN
Krebs also argues that the trial court abused its discretion by admitting testimony by SC,
over his objection, that she thought that she may have been drugged at the time of the rape.6 The
State argues that during her testimony, SC did not speculate or make any connection as to the
possibility that she was drugged or imply that Krebs or Birdsall intentionally drugged her. We agree
with the State and hold that the trial court properly admitted SC’s testimony in this regard.
ER 402 prohibits admission of evidence that is irrelevant. “Relevant evidence” is
“evidence having any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the evidence.”
ER 401. ER 403 provides that “[a]lthough relevant, evidence may be excluded if its probative
6 Krebs repeats this same claim in his SAG. Because the trial court did not error, we reject this claim in his SAG for the same reasons detailed in this section.
22 No. 49396-9-II
value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of time, or needless presentation
of cumulative evidence.”
Contrary to Krebs’ claim, SC did not speculate during her testimony at trial about possibly
being drugged that night with Vicodin or that she was intentionally drugged by Krebs or Birdsall.
SC’s testimony was relevant because it tended to make the existence of a fact of
consequence, that her mental state was affected that evening, more probable than it would have
been without the admission of her testimony.7 After ruling that the evidence in this regard was
relevant, the trial court conducted the proper balancing under ER 403 prior to admitting the
testimony. Thus, because the evidence was relevant, and the relevancy was not substantially
outweighed by any prejudice, the trial court did not abuse its discretion in admitting SC’s testimony
in this regard. Because the trial court did not err, we hold that Krebs’ argument fails.
V. CUMULATIVE ERROR
Krebs argues that cumulative error requires reversal of his convictions. The cumulative
error doctrine applies when a trial is affected by several errors that standing alone may not be
7 SC’s testimony in this regard was also relevant to the statements she gave during the confrontation calls with Krebs and Birdsall, and her statements to the SANE nurse that she had fallen and could not stand on her own or she could not move. SC stated that she “could not really talk,” “tried to say no,” “couldn’t do anything,” “felt . . . paralyzed,” “could barely keep [her] eyes open,” “went unconscious again,” “was in and out a lot,” “couldn’t move,” “couldn’t stand,” “passed out,” “was coming to off and on,” and that she later “woke up, crying and screaming and telling him to stop.” VRP (July 26- 27, 2016) at 51-53, 56, 77, 146.
Further, SC’s testimony in this regard was relevant to the statements made by Krebs describing how drunk SC was; how he heard her hit the floor; how he had to pick her up off the floor and carry her to the bedroom; how she had vomited in the bathroom before she fell; how he took her to the bedroom; and how she was falling all over the place.
23 No. 49396-9-II
sufficient to justify reversal but, when combined may deny a defendant a fair trial. State v. Greiff,
141 Wn.2d 910, 929, 10 P.3d 390 (2000). To determine whether cumulative error requires reversal
of a defendant’s conviction, this court must consider whether the totality of circumstances
substantially prejudiced the defendant. In re Pers. Restraint of Cross, 180 Wn.2d 664, 690, 327
P.3d 660 (2014). The cumulative error doctrine does not apply when there are no errors or where
the errors are few and have little or no effect on the trial’s outcome. State v. Weber, 159 Wn.2d
252, 279, 149 P.3d 646 (2006).
Because no errors occurred at trial, the cumulative error doctrine does not apply. Thus, we
hold that this claim fails.
VI. INEFFECTIVE ASSISTANCE OF COUNSEL
Krebs next argues that his counsel was ineffective at sentencing for not requesting an
exceptional downward sentence based on the mitigating factor of youth under State v. O’Dell, 183
Wn.2d 680, 358 P.3d 359 (2015). We disagree.
A claim of ineffective assistance of counsel presents a mixed question of fact and law that
we review de novo. State v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009); Strickland v.
Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To prevail on a claim
of ineffective assistance of counsel, Krebs must show that (1) his trial counsel’s representation was
deficient and (2) his trial counsel’s deficient representation prejudiced him. Strickland, 466 U.S.
at 687; State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987).
The first prong is met by a defendant showing that the performance falls “‘below an
objective standard of reasonableness.’” State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260 (2011)
24 No. 49396-9-II
(quoting Strickland, 466 U.S. at 688). A defendant alleging ineffective assistance must overcome
“a strong presumption that counsel’s performance was reasonable.” State v. Kyllo, 166 Wn.2d
856, 862, 215 P.3d 177 (2009). “‘When counsel’s conduct can be characterized as legitimate trial
strategy or tactics, performance is not deficient.’” Grier, 171 Wn.2d at 33 (quoting Kyllo, 166
Wn.2d at 862-63). The second prong is met if the defendant shows that there is a substantial
likelihood that the misconduct affected the verdict. State v. Lewis, 156 Wn. App. 230, 240, 233
P.3d 891 (2010). A failure to make either showing terminates review of the claim. Thomas, 109
Wn.2d at 225-26.
B. EXCEPTIONAL DOWNWARD SENTENCE
O’Dell was over eighteen years old when he was convicted of second degree rape. O’Dell,
183 Wn.2d 683. At sentencing, defense counsel asked the sentencing court to impose an
exceptional downward sentence below the standard range because his youthfulness impaired his
ability to appreciate the wrongfulness of his conduct and act in conformity with the law. O’Dell,
183 Wn.2d at 685. The sentencing court “ruled that it could not consider age as a mitigating
circumstance” because O’Dell was a legal adult. O’Dell, 183 Wn.2d at 685 (emphasis added). On
appeal, the Supreme Court held that the sentencing court abused its discretion because it
erroneously believed that it could not consider youth as a mitigating factor and, as a result, failed
to consider whether O’Dell’s youth impacted his culpability. O’Dell, 183 Wn.2d at 696-97. The
Supreme Court remanded the case for the sentencing court to resentence O’Dell using the proper
factors. O’Dell, 183 Wn.2d at 696-97.
25 No. 49396-9-II
Here, the sentencing court did not specifically determine that it did not have discretion to
impose an exceptional downward sentence. Thus, Krebs’ sentence is not like that imposed in
O’Dell and is more like that imposed in State v. Hernandez-Hernandez, 104 Wn. App. 263, 15
P.3d 719 (2001). In Hernandez-Hernandez, the defendant claimed that his counsel was deficient
for not arguing for an exceptional downward sentence. Hernandez-Hernandez, 104 Wn. App. at
266. In that case, the defense counsel did not argue for an exceptional downward sentence, did
not cite to an analogous case, and did not cite to mitigating factors at sentencing. Hernandez-
Hernandez, 104 Wn. App. at 266. Despite that, Division Three held that defense counsel’s
“arguments encompassed some of the mitigating factors . . . .” Hernandez-Hernandez, 104 Wn.
App. at 266. The Hernandez-Hernandez court focused on the fact that the sentencing court, even
without argument, had the discretion to impose an exceptional downward sentence and thus, it
held that counsel was not deficient. Hernandez-Hernandez, 104 Wn. App. at 266.
Similarly here, Krebs’ counsel argued that the sentencing court should be lenient in its
sentencing and impose the low end sentence due to Krebs’ youthfulness. The sentencing court
then considered his youthfulness and still decided to impose a midrange sentence. Thus, even
though Krebs’ counsel did not cite to O’Dell as authority for the sentencing court to impose an
exceptional downward sentence, his counsel’s arguments did encompass a mitigating factor and,
even without argument, the sentencing court had the discretion to impose an exceptional
downward sentence. We find that Krebs’ counsel was not deficient. Therefore, we hold that this
claim fails.
26 No. 49396-9-II
VII. COMMUNITY CUSTODY CONDITIONS
Krebs challenges three of the community custody conditions that the sentencing court
imposed in the judgment and sentence. Specifically, he argues that the conditions that he (1) obtain
a substance abuse evaluation and complete recommended treatment, (2) not possess controlled
substances or drug paraphernalia without a valid prescription, and (3) submit to random
urine/breath testing to monitor his alcohol/drug free status, were not crime-related. He also asks
this court to clarify exactly which DOC suggested conditions the sentencing court imposed. We
hold that the three challenged conditions of community custody are crime-related, and thus, the
sentencing court did not err in ordering them. To the extent that Krebs asks us to clarify whether
the DOC suggested conditions were imposed, we determine that the judgment and sentence did
not include the DOC suggested conditions; thus, we determine that the sentencing court did not
impose the DOC suggested conditions.
A defendant may assert a pre-enforcement challenge to community custody conditions for
the first time on appeal if the challenge is primarily legal, does not require further factual
development, and the challenged action is final.8 State v. Bahl, 164 Wn.2d 739, 751, 193 P.3d 678
(2008). Trial courts may impose crime-related prohibitions while a defendant is in community
custody. RCW 9.94A.505(9); RCW 9.94A.703(3)(f). A “crime-related prohibition” is defined as
“an order of a court prohibiting conduct that directly relates to the circumstances of the crime for
which the offender has been convicted . . . .” RCW 9.94A .030(10). “No causal link need[s to] be
8 Although Krebs argues that he objected to some of the conditions, he only made a general objection to the condition that he be prohibited from drinking alcohol.
27 No. 49396-9-II
established between the condition imposed and the crime committed, so long as the condition
relates to the circumstances of the crime.” State v. Williams, 157 Wn. App. 689, 691-92, 239 P.3d
600 (2010). A condition is not crime-related if there is no evidence linking the prohibited conduct
to the offense. State v. O’Cain, 144 Wn. App. 772, 775, 184 P.3d 1262 (2008). “We review the
imposition of crime-related prohibitions for an abuse of discretion.” Williams, 157 Wn. App. at
691.
As a general rule, the imposition of community custody conditions is within the discretion
of the court and will be reversed only if manifestly unreasonable. Bahl, 164 Wn.2d at 753. A
sentencing condition that interferes with a constitutional right must be “sensitively imposed” and
“reasonably necessary to accomplish the essential needs of the State and public order.” State v.
Warren, 165 Wn.2d 17, 32, 195 P.3d 940 (2008).
B. SENTENCING COURT’S CONDITIONS OF COMMUNITY CUSTODY
Here, Krebs specifically argues that the three challenged community custody conditions
were not authorized because they were not crime-related. We disagree.
As to the conditions requiring that he obtain substance abuse evaluation and treatment and
be subject to random urinalysis testing to monitor him, Krebs concedes that “a condition regarding
alcohol consumption is clearly related to the crime.” Br. of Appellant at 48. Further, the record
shows that Krebs consumed alcohol and possibly used prescription drugs on the night of the
incident. Thus, these two conditions are crime related.
As to the conditions related to drug paraphernalia, controlled substances, and random
urinalysis, while Krebs’ use of alcohol was a factor in the crime, there was also evidence presented
that he may have used prescription drugs on the night of the incident. Thus, the conditions,
28 No. 49396-9-II
requiring that he not possess drug paraphernalia, that he not consume or possess any controlled
substances without a valid prescription, and that he be subject to random urinalysis, were crime
related. Because all of the challenged conditions of community custody were crime-related, the
sentencing court did not err in ordering these conditions. Therefore, we affirm these conditions of
community custody.
C. DOC SUGGESTED CONDITIONS OF COMMUNITY CUSTODY
Krebs next asks this court to clarify whether the DOC suggested conditions were imposed.
We determine that the DOC suggested conditions were not ordered because they were not included
in the judgment and sentence.
“To the extent its oral rulings conflict with its written order, a written order controls over
any apparent inconsistency with the court’s earlier oral ruling.” State v. Skuza, 156 Wn. App. 886,
898, 235 P.3d 842 (2010). The sentencing court orally imposed the DOC suggested conditions,
titled Appendix H. VRP (Sept. 9, 2016) at 46 (“I am going to impose the remaining conditions as
requested by the State . . . .”). However, the written judgment and sentence do not reference
“Appendix H” or incorporate it in any other way. The State argues that DOC retains its own
authority to impose conditions of community custody under RCW 9.9A.704, and DOC may decide
to impose the conditions set forth in Appendix H. This is true, and DOC may later impose
conditions. However, here, the sentencing court did not incorporate DOC’s suggested conditions
in its written order. Thus, we agree with Krebs and determine that the suggested DOC conditions
were not ordered by the sentencing court.
29 No. 49396-9-II
VIII. SEALING
Krebs argues that the sentencing court erred by sealing SC’s sexual assault protection order
to protect the victim’s identity. We disagree.
“The invited error doctrine precludes a criminal defendant from seeking appellate review
of an error [he or] she helped create, even when the alleged error involves constitutional rights.”
State v. Mercado, 181 Wn. App. 624, 629-30, 326 P.3d 154 (2014). “The doctrine of invited error
prohibits a party from setting up an error at trial and then complaining of it on appeal.” Mercado,
181 Wn. App. at 630. To determine whether the invited error doctrine is applicable to a case, we
may consider whether the petitioner affirmatively assented to the error, materially contributed to
it, or benefited from it. State v. Momah, 167 Wn.2d 140, 154, 217 P.3d 321 (2009).
Here, the protection order was agreed to by both parties. Thus, Krebs cannot argue on
appeal that this protection order was error, because he signed the initial order that the judge
granted. Therefore, we hold that this claim fails.
SAG
In his SAG, Krebs claims that the sentencing court erred by imposing mandatory LFO’s to
include a victim assessment fee, a criminal filing fee, the DNA collection fee, and restitution to
SC in an amount to be determined. We disagree.
30 No. 49396-9-II
For mandatory LFOs, including victim restitution, victim assessments, DNA fees, and
criminal filing fees, the legislature has expressly directed that a defendant’s ability to pay should
not be taken into account when the LFO’s are mandatory by statute. See State v. Mathers, 193
Wn. App. 913, 918, 376 P.3d 1163, review denied, 186 Wn.2d 1015 (2016). Because all the LFO’s
that the sentencing court ordered are mandatory, we hold that this claim fails.
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.
SUTTON, J. We concur:
BJORGEN, P.J.
PENOYAR, J. P.T.