State Of Washington v. Joel Michael Krebs

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JOEL MICHAEL KREBS, UNPUBLISHED OPINION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,

3
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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.

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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

A. LEGAL PRINCIPLES

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.

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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

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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

A. LEGAL PRINCIPLES

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

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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

A. LEGAL PRINCIPLES

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.

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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.

20
No. 49396-9-II

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

A. LEGAL PRINCIPLES

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.

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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.

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No. 49396-9-II

VII. COMMUNITY CUSTODY CONDITIONS

A. LEGAL PRINCIPLES

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.

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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.

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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.

31