State v. Krebs

• Decision Date: 16 October 2018
• Docket Number: 49396-9-II
• Court: Washington Court of Appeals
• Parties: STATE OF WASHINGTON, Respondent, v. JOEL MICHAEL KREBS, Appellant.

STATE OF WASHINGTON, Respondent, v. JOEL MICHAEL KREBS, Appellant.

No. 49396-9-II

Court of Appeals of Washington, Division 2

October 16, 2018

UNPUBLISHED OPINION

Order Filed Date: December 4, 2018

ORDER ORDER GRANTING APPELLANT'S MOTION FOR RECONSIDERATION AND ORDER AMENDING UNPUBLISHED OPINION

The unpublished opinion in this case was filed on October 16 20018. Upon the motion of the appellant for reconsideration it is hereby

ORDERED that the appellant's motion for reconsideration is hereby granted, and the opinion previously filed on October 16 2018, is hereby amended as follows:

Page 2 line 12 the following sentence shall be deleted:

As to his fourth SAG claim, we hold that Krebs' claim fails because the LFO's ordered were mandatory.

Page 2, the following text shall be inserted at line 12 before the sentence, "We affirm Krebs' conviction."

As to his other SAG claim regarding the imposition of mandatory LFOs, we hold that based on Krebs' indigency as determined at sentencing, our Supreme Court's recent decision in State v. Ramirez, ___ Wn.2d ___, 426 P.3d 714 (Sept. 20, 2018) applies. Thus, under Ramirez, we remand and order the court to strike the $200 criminal filing fee and the non-restitution interest provision, and amend the judgment and sentence accordingly.

Page 8, line 5, the last sentence of the paragraph shall be deleted:

The sentencing court also imposed a restitution fee, a victim assessment fee, a criminal filing fee, and a DNA collection fee.

Page 8, line 5, the last sentence of the paragraph shall read:

The sentencing court imposed mandatory LFOs, including, a $500 victim assessment fee, a $200 criminal filing fee, a $100 DNA collection fee, restitution in an amount to be determined, and also included an interest provision in the judgment and sentence.

Pages 30-31, beginning on line 15, the following two paragraphs shall be deleted:

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 S.C. in an amount to be determined. We disagree.

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.

Page 30-31, beginning on line 15, the following two paragraphs shall be inserted:

In his SAG, Krebs claims that the sentencing court erred by imposing mandatory LFO's to include a $500 victim assessment fee, a $200 criminal filing fee, a $100 DNA collection fee, restitution to S.C. in an amount to be determined, and by including an interest provision in the judgment and sentence. Based on Ramirez, Krebs' asks this court to strike the $200 criminal filing fee and the non-restitution interest provision amounts from the judgment and sentence. We agree that Ramirez applies and thus, we remand and order the court to strike the $200 criminal filing fee and the non-restitution interest provision, and amend the judgment and sentence accordingly.

We affirm Krebs' Conviction.

IT IS SO ORDERED.

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 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, SC^[2] 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 S.C. 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 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 S.C. 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 S.C. 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. S.C. 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. S.C. 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. S.C. had three or four alcoholic lemonades at Birdsall's house. At some point, she began to feel fuzzy, and she fell down multiple times. S.C. 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, 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 S.C. remembers is Birdsall forcing his penis into her vagina. While Birdsall was doing this, Krebs put his penis in her mouth. S.C. wanted it to stop, but she was unable to move. S.C. remembers that Birdsall said he could not ejaculate because Krebs was in the room. S.C. believes, but is not sure, that Krebs left, and returned after Birdsall had ejaculated.

Krebs then forced his penis into SC's vagina. S.C. 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...