ILED
IN THE COURT OF APPEALS OF THE STATE OF W$AGfrON
DIVISION II 2015 AUG I i AM 9: 11
STATE OF WASHINGTON,
HltiGTON
By _
Respondent,
V.
NATASHIA R. MEYER, UNPUBLISHED OPINION
MELNICK, J. — Natashia Meyer appeals her conviction for murder in the first degree with
a firearm enhancement. Meyer argues she received ineffective assistance of counsel for failure to
propose a voluntary intoxication jury instruction and the trial court abused its discretion when, as
a condition of community custody, it prohibited Meyer from entering places whose primary
business is the sale of liquor. We affirm Meyer' s conviction for murder in the first degree, but
remand to the trial court to strike the referenced community custody provision.
FACTS
2013, Natashia Meyer Sam Blevins multiple times. He died from the
On May 28, shot
gunshot wounds. The State, by amended information, charged Meyer with murder in the first
degree with a firearm enhancement.
Meyer is a long time methamphetamine user. She and Blevins were friends and frequently
used methamphetamine together. Meyer invited Blevins to her home. When he arrived in his
vehicle, she met him outside and shot him.
Immediately after shooting Blevins, Meyer called 911 to report what happened. In the call,
Meyer said that she shot Blevins because " he raped [ her] last night" and was " bragging about it."
She that seeing " tracers." Ex.
Ex. 51, at 3. Meyer admitted to being a drug addict. said she was
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51, at 6. During her medical examination and law enforcement interviews later that night, Meyer
exhibited symptoms of being under the influence of methamphetamine.
Prior to trial, Meyer' s defense counsel indicated that the general nature of her defense was
diminished capacity" and " justification." Clerk' s Papers ( CP) at 118, 127. The State moved in
limine to exclude the testimony of Dr. Kenneth Muscatel, a psychologist and the defendant' s
expert. He initially performed the evaluation to determine " whether or not there was diminished
the incident, he determined there was not." I Report of
capacity or
insanity at the time of and
Proceedings ( RP) at 62.
At the hearing on the State' s motion, the trial court heard an offer of proof that Dr. Muscatel
issued a report, concluding that "` [ t] here is not much question Ms. Meyer engaged in intentional
behavior when she shot Mr. Blevins' and ... `[ h] er actions included thinking ahead."' CP at 110.
He also opined that he "` saw no compelling evidence [ that] she was psychotic at the time of the
incident, or otherwise out of touch with reality."' CP at 110. Dr. Muscatel further reported that
t] here is no evidence [ that Meyer] did not understand her conduct was against the law, but she
said she felt justified in shooting [ Blevins]."' CP at 111. Defense counsel informed the trial court
that Meyer would present a defense ofjustifiable homicide and not diminished capacity. The trial
court partially granted the State' s motion but reserved on whether or not Dr. Muscatel had anything
relevant relating to the defense of justifiable homicide.
At trial, Meyer testified that she feared Blevins. She testified that "[ she] was trying to
shoot him" because she " wanted him to know what he did was wrong." IV RP at 504. Meyer also
testified that at the time of the shooting, she was high on methamphetamines. During closing
argument, defense counsel argued that Meyer shot Blevins to defend herself.
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The jury found Meyer guilty of murder in the first degree, and specially found that she was
armed with a firearm. The trial court sentenced Meyer to a standard range sentence of 360 months
of confinement. As a condition of community custody, the trial court ordered that Meyer " shall
not go into bars, taverns, lounges, or other places whose primary business is the' sale of liquor."
CP at 14. Meyer appeals.
ANALYSIS
I. INEFFECTIVE ASSISTANCE OF COUNSEL
Meyer argues that she received ineffective assistance of counsel when defense counsel
failed to propose a voluntary intoxication jury instruction. We disagree.
A. Standard of Review
To prevail on an ineffective assistance of counsel claim, Meyer must show that defense
counsel' s performance was so deficient that it "fell below an objective standard of reasonableness"
and that the deficient performance prejudiced her. State v. Thomas, 109 Wn.2d 222, 226, 743 P. 2d
816 ( 1987) ( citing Strickland v. Washington, 466 U.S. 668, 688, 104. 5. Ct. 2052, 80 L. Ed. 2d 674
1984)). Failure to establish either prong is fatal to an ineffective assistance of counsel claim.
Strickland, 466 U.S. at 700. An attorney' s performance is deficient if it falls " below an objective
standard of reasonableness based on consideration of all the circumstances." State v. McFarland,
127 Wn.2d 322, 334- 35, 899 P. 2d 1251 ( 1995). Deficient performance prejudices a defendant if
there is a " reasonable probability that, but for counsel' s deficient performance, the outcome of the
proceedings would have been different." State v. Kyllo, 166 Wn.2d 856, 862, 215 P. 3d 177 ( 2009).
Our scrutiny of defense counsel' s performance is highly deferential; we strongly .presume
reasonableness. State v. Grier, 171 Wn.2d 17, 33, 246 P. 3d 1260 ( 2011). To rebut this
presumption,, Meyer bears the burden of establishing the absence of any legitimate trial tactic
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explaining counsel' s performance.' Grier, 171 Wn.2d at 33. Ineffective assistance of counsel is a
mixed question of law and fact that we review de novo. State v. Sutherby, 165 Wn.2d 870, 883,
204 P. 3d 916 ( 2009).
B. Voluntary Intoxication Instruction
To establish ineffective assistance of counsel for failing to request a voluntary intoxication
instruction, Meyer must first show that she was entitled to the instruction. She does not make this
showing.
A trial court will instruct a jury on voluntary intoxication if: (1) the crime charged includes
a particular mental state as an element, ( 2) there is substantial evidence of methamphetamine use,
and ( 3) the defendant presents evidence that the drug use affected her ability to form the requisite
mental state. State v. Everybodytalksabout, 145 Wn.2d 456, 479, 39 P. 3d 294 ( 2002). The
evidence must have reasonably and logically connected Meyer' s apparent intoxication with her
asserted inability to form the requisite level of culpability to commit murder in the first degree.
See State v. Griffin, 100 Wn.2d 417, 418- 19, 670 P. 2d 265 ( 1983). Evidence of intoxication,
standing alone, is insufficient to warrant the giving of a voluntary intoxication jury instruction;
there must be.substantial evidence of the alcohol's effect on the defendant' s mind and body. State
v. Finley, 97 Wn. App. 129, 135, 982 P. 2d 681 ( 1999) ("[ T] he court is required to give a voluntary
intoxication instruction only in those cases in which the level of mental impairment caused by
alcohol or drugs clearly affected the defendant's criminal responsibility by eliminating the
necessary mens rea.").
Here, intent is an element of murder in the first degree. RCW 9A.32. 030( 1)( a). And
although the record contains evidence that Meyer' s intoxication at the time of the offense resulted
from methamphetamine use, Meyer must demonstrate substantial evidence of the effects of the
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drug on her body or mind. Finley, 97 Wn. App. at 135. The evidence must also " reasonably and
logically connect [ her] intoxication with the asserted inability to form the required level of
culpability to commit the crime charged." State v. Gabryschak, 83 Wn. App. 249, 252- 53, 921
P. 2d 549 ( 1996).,
Here, Meyer presented no evidence that intoxication affected her ability to formulate the
intent to commit murder in the first degree. In fact, even though he did not testify at trial, Dr.
Muscatel, her expert, concluded that Meyer engaged in intentional behavior when she killed
Blevins. Because Meyer fails to demonstrate that she would have been entitled to a voluntary
intoxication instruction, Meyer cannot establish that defense counsel' s performance was deficient
for failing to request it. Therefore, her ineffective assistance of counsel claim fails.
Even assuming that Meyer was entitled to an involuntary intoxication jury instruction, she
cannot overcome her burden to show the absence of any conceivable legitimate trial tactic
explaining defense counsel's decision to not request an involuntary intoxication jury instruction.
See Grier, 171 Wn.2d at 42. In light of Dr. Muscatel' s, conclusion that Meyer did not have a
diminished capacity at the time she killed Blevins, defense counsel chose to pursue a justification
defense. Defense counsel elicited testimony to support this defense, including that Meyer was
scared of Blevins. In closing argument, defense counsel emphasized that Meyer shot Blevins to
defend herself. And defense counsel proposed a justifiable homicide instruction that the trial court
gave to the jury. It is clear from Meyer' s testimony and from defense counsel' s closing argument
that an involuntary intoxication jury instruction would have weakened the defense theory of the
case. Apart from diverting the jury' s focus from the defense theory of the case, defense counsel
may have decided not to request the instruction because it conflicted with Meyer' s explanation of
why she shot Blevins. Because defense counsel' s decision not to request an involuntary
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intoxication jury instruction was a legitimate trial strategy, Meyer cannot meet her burden to prove
her counsel was ineffective.
II. ALCOHOL- RELATED COMMUNITY CUSTODY PROVISION.
Meyer argues for the first time on appeal that the trial court acted outside its authority when
it imposed a community custody provision prohibiting Meyer from entering places whose primary
business is the sale of liquor. The State concedes that this community custody provision is
improper because the provision is not reasonably related to the circumstances of Meyer' s offense.
We accept the State' s concession and remand to strike this condition.
A. Standard of Review
An unlawful sentence may be challenged for the first time on appeal." State v. Warnock,
174 Wn. App. 608, 611, 299 P. 3d 1173 ( 2013). Under RCW 9. 94A.703( 3)( f),the trial court may
require the defendant to " comply with any crime -related prohibitions." A crime -related
prohibition is " 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). We review the trial
court' s imposition of crime -related prohibitions for an abuse of discretion. State v. Warren, 165
Wn.2d 17, 32, 195 P. 3d 940 ( 2008).
B. Alcohol is not Reasonably Related to the Circumstances of Meyer' s Offense
Here, the record contains no evidence that alcohol contributed to Meyer' s offense in any
way. Therefore, the condition prohibiting Meyer from entering places whose primary business is
the sale of liquor does not reasonably relate,to the crime of murder in the first degree. Because the
trial court abused its discretion, the State' s concession is proper. Accordingly, we accept the
State' s concession.
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We affirm Meyer' s conviction for murder in the first degree, and remand to the trial court
to strike the community custody provision prohibiting Meyer from entering places whose primary
business is the sale of liquor.
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.
Melnick, J.
We concur:
Johanson, C. J.
M,
gen, J. —•
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