State v. Krebs

• Decision Date: 16 October 2018
• Docket Number: No. 49396-9-II,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 THE STATE OF WASHINGTON DIVISION II

October 16, 2018

UNPUBLISHED OPINION

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 trialcourt 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 sexualintercourse 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,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"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.

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...