                                                                  FILED
                                                                JUNE 8, 2017
                                                        In the Office of the Clerk of Court
                                                      WA State Court of Appeals, Division Ill




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

STATE OF WASHINGTON,                          )         No. 34031-7-111
                                              )
                       Respondent,            )
                                              )
       v.                                     )         UNPUBLISHED OPINION
                                              )
JOSHUA W. BRINK,                              )
                                              )
                       Appellant.             )

       PENNELL, J. -    Joshua Brink appeals his conviction for second degree assault of a

child. We affirm Mr. Brink's conviction but remand for resentencing.

                                          FACTS

       In 2012, Mr. Brink lived with his then girlfriend, Ashley Brown, and her two-year-

old son, K.S.D. One afternoon in late November, Mr. Brink was at home with K.S.D.

when he called Ms. Brown and reported K.S.D. had been burned. Ms. Brown arrived

home and saw K. S .D.' s buttocks were red.

       Mr. Brink's explanation of the incident is as follows: Mr. Brink had brought

K.S.D. home from work, and the two were preparing to take a shower. Mr. Brink

removed K.S.D.'s clothes and placed him on the toilet. 1 Mr. Brink then heard a truck


       1 Accordingto Ms. Brown, Mr. Brink was "very adamant" K.S.D. be toilet trained.
1 Verbatim Report of Proceedings (Dec. 2, 2015) at 147.
No. 34031-7-III
State v. Brink


coming up the driveway. When K.S.D. finished using the toilet, Mr. Brink set K.S.D. in

the empty bathtub. Mr. Brink went to answer the front door and engaged in a

conversation with the visitor, a friend from work. While talking, Mr. Brink heard K.S.D.

scream. Mr. Brink ran to the bathroom and noticed steam coming from the bathtub. Mr.

Brink observed K.S.D. sitting in the bathtub, crying, with his knees bent and feet against

the front of the bathtub while his hands were braced against the walls of the bathtub. The

hot water handle was turned on, and hot water was running between his legs. Mr. Brink

immediately grabbed K.S.D. out of the bathtub and turned off the water. He then placed

K.S.D. in cool water and cared for K.S.D.'s bums before calling Ms. Brown.

      Ms. Brown and Mr. Brink initially cared for K.S.D. 's bums at home. But after

several days Ms. Brown took K.S.D. to the hospital because the bums appeared to be

getting worse.

      At the hospital, K.S.D. was treated by Dr. Michelle Messer, a board certified

pediatrician with expertise in child abuse and neglect. Dr. Messer noted K.S.D. had

sustained serious bums to his buttocks and the underside of his penis. As there were no

other injuries on K.S.D.'s body, Dr. Messer did not think the bum pattern was consistent

with an accidentally inflicted bum in the manner described by Mr. Brink. With an

immersion bum, Dr. Messer expected to see sparing in the buttocks and genital region, or



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No. 34031-7-111
State v. Brink


a lack of bums that occurs when areas of skin are insulated from the scalding water either

by contact with the cooler bathtub surface or by contact with another area of the body.

She also expected to see splash marks of bums. Based on the incongruity between Dr.

Messer's observations and Mr. Brink's explanation, Dr. Messer concluded the bums were

caused by abusive contact.

       The State charged Mr. Brink with second degree child assault with aggravating

circumstances. Following a trial where witnesses testified consistent with the above-

stated facts, the jury found Mr. Brink guilty as charged. At sentencing, the trial court

imposed 120 months of confinement and 18 months of community custody. The trial

court stated any good time credited to Mr. Brink during confinement would be converted

to community custody so as not to exceed the statutory maximum of 120 months.

Accordingly, the community custody provisions of the judgment and sentence include the

following notation: "[C]ombined term of confinement and community custody for any

particular offense cannot exceed the statutory maximum. RCW 9.94A.701." Clerk's

Papers (CP) at 180. Mr. Brink appeals.

                                       ANALYSIS

Allegations of prosecutorial misconduct

       During closing argument the prosecutor stated: "The physical evidence, the



                                             3
No. 34031-7-III
State v. Brink


observed evidence is of abusive injury. The doctor told you beyond a reasonable doubt-

without hesitation, without hesitation at all that this was not nonaccidental. She gave a

thorough and good consideration. So if it didn't happen that way, which way did it

happen?" 2 Verbatim Report of Proceedings (VRP) (Dec. 2, 2015) at 259 (emphasis

added). Mr. Brink claims these comments were improper because they (1) vouched for

Dr. Messer's credibility, (2) misstated and impermissibly shifted the burden of proof, and

(3) introduced facts not in evidence.

       To establish prosecutorial misconduct, a defendant must prove the prosecutor's

conduct was improper and prejudiced his right to a fair trial. State v. Jackson, 150 Wn.

App. 877, 882, 209 P.3d 553 (2009). Prejudice is established only if there is a substantial

likelihood the misconduct affected the jury's verdict. Id. at 883. This court reviews a

prosecutor's comments during closing argument in the context of the total argument, the

issues in the case, the evidence discussed in the argument, and the jury instructions. Id.

If defense counsel fails to object to the prosecutor's statements, as was the case here, then

reversal is required only if the misconduct was so flagrant and ill intentioned that no

instruction could have cured the resulting prejudice. Id. The fact that defense counsel did

not object to a prosecutor's statements "suggests that it was of little moment in the trial."

State v. Rogers, 70 Wn. App. 626, 631, 855 P.2d 294 (1993).



                                              4
No. 34031-7-III
State v. Brink


       The majority of Mr. Brink's misconduct claims fail because they are based on a

mischaracterization of the record. The prosecutor clearly misspoke when he stated "[t]he

doctor told you beyond a reasonable doubt." 2 VRP (Dec. 2, 2015) at 259. Recognizing

this error, the prosecutor immediately corrected himself and explained the doctor's

testimony was "without hesitation." Id. The context of the prosecutor's comments,

coupled by the lack of objection from the defense, supports our understanding that the

prosecutor simply made a misstatement that was immediately corrected, as opposed to an

intentional misrepresentation. As a consequence, no judicial intervention or correction

was necessary.

       Apart from seizing on the prosecutor's corrected misstatement, Mr. Brink argues

the prosecutor improperly shifted the burden of proof by asking, "if it didn't happen that

way, which way did it happen?" Id. We disagree with this assessment. It is true a

prosecutor must not suggest the defense has a duty to present evidence. However, "a

prosecutor is entitled to point out the improbability or lack of evidentiary support for the

defense theory of the case." State v. Osman, 192 Wn. App. 355, 366-67, 366 P.3d 956

(2016). That is what happened here. The prosecutor's rhetorical question simply pointed

out that the evidence did not support any reasonable inference other than guilt. This was

an appropriate line of argument. Id. (Prosecutor permissibly asked, "If a struggle or



                                              5
No. 34031-7-III
State v. Brink


some type of confrontation didn't occur in the car how did that earring come out of her

ear and get left on the floor and how did she break those fingernails if an encounter did

not, and a struggle, did not occur?"). 2

Ineffective assistance of counsel

       Mr. Brink claims he received ineffective assistance of counsel when defense

counsel failed to object to (1) Dr. Messer's speculative and irrelevant testimony and (2)

Ms. Brown's testimony expressing an opinion on his guilt. 3

       This court reviews claims of ineffective assistance of counsel de novo. State v.

Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009). To prevail on such a claim, a

defendant must show (1) defense counsel's representation was deficient and (2) the

deficient representation prejudiced the defendant. State v. Grier, 171 Wn.2d 17, 32-33,

246 P.3d 1260 (2011). Deficient performance is that which falls below an objective

standard of reasonableness. Id. at 33. This court presumes counsel's performance was


       2
         Mr. Brink also compares the prosecutor's argument to an impermissible "fill-in-
the-blank" argument. See State v. Venegas, 155 Wn. App. 507, 523-25, 228 P.3d 813
(2010) (such an argument is improper because it erodes the presumption of innocence and
implies a defendant is responsible for supplying a reason not to convict). But reading the
prosecutor's closing argument as a whole, it is evident the prosecutor did not argue the
jury had to come up with a reason to acquit Mr. Brink.
       3
         Mr. Brink also argues it was ineffective for defense counsel to fail to object to
the aforementioned aspects of the prosecutor's closing argument. Because the
prosecutor's argument was not improper, counsel was not ineffective for failing to object.

                                             6
No. 34031-7-III
State v. Brink


not deficient. Id. A defendant may rebut this presumption by showing the performance

was not a matter of legitimate strategy or tactics. Id. To demonstrate prejudice, a

defendant must show his trial counsel's performance was so inadequate that there is a

reasonable probability the result at trial would have been different. State v. Kolesnik, 146

Wn. App. 790, 800, 192 P.3d 937 (2008). A failure to prove either element defeats a

claim of ineffective assistance. Id.

       Speculative and irrelevant expert testimony

       Mr. Brink first argues defense counsel was ineffective for failing to object to the

following portion of Dr. Messer's testimony:

       One of the things I thought about is sometimes it's difficult taking care of a
       two year old. I've had a few of those in my life, and they can be a
       challenge. You know, sometimes they poop at inappropriate moments or
       they get their hands in the diaper, and it goes everywhere, and you have to
       clean that up, and people get mad.
               I could see where somebody could be so mad they would take the kid
       and use scalding hot water to clean him up. That would produce this.
       That's one way.
               Do I know for sure what happened to do that? No, I don't. I wasn't
       there, but that would be one way to cause this kind of burn.

1 VRP (Dec. 1, 2015) at 77.

       Mr. Brink's criticisms fail to fully account for Dr. Messer's testimony. During

questioning by the State, Dr. Messer engaged in a lengthy narrative about the various

scenarios that could have lead up to K.S.D. 's injuries. She started with theories that could

                                             7
     No. 34031-7-111
     State v. Brink


     have resulted in K.S.D. accidentally injuring himself. But none of those matched the

J    physical evidence. She then described the above-quoted scenario as a possible

1I   explanation for how the injuries could have occurred. Unlike the innocent explanations,
1
Il   this explanation was consistent with the physical evidence. Viewed in context, Dr.
I
     Messer's testimony came across as an explanation of her deductive reasoning process. It

     was not presented as a theory of Mr. Brink's actual mind-set or motivation. The

     prosecutor did not rely on Dr. Messer's theory of motivation in arguing its case to the

     Jury. Reversal in such circumstances is generally unwarranted. See State v. Madison, 53

     Wn. App. 754, 763, 770 P.2d 662 (1989) (only in egregious circumstances, on testimony

     central to the State's case, will the failure to object constitute incompetence of counsel

     justifying reversal).

            Even if Dr. Messer's testimony had played a greater role in the case, reversal

     would be unwarranted as defense counsel's failure to object was reasonably strategic.

     There was no testimony indicating Mr. Brink found it difficult to take care of a two-year

     old or that K.S.D. ever had a problem soiling himself. The only potentially related

     testimony came from Ms. Brown, who stated Mr. Brink was adamant K.S.D. be toilet

     trained. The feelings attributed to Mr. Brink by Ms. Brown were hardly unusual. Many

     parents of two-year-olds emphasize toilet training. But that does not mean they are prone


                                                   8
No. 34031-7-111
State v. Brink


to abuse. The lack of evidence supporting Dr. Messer's theory of motivation had the

potential to undercut her credibility and emphasize the speculative nature of her

testimony.

       Improper opinion testimony

      Mr. Brink next argues defense counsel was ineffective for failing to object to

improper opinion testimony. On recross-examination, the following exchange occurred

between Ms. Brown and defense counsel:

      Q Prior to this incident happening, when you and [K.S.D.] and Mr. Brink
      were all living together, how did the relationship seem between your son,
      [K.S.D.], and Mr. Brink?

      A Great, and that's why it was very hard for me to understand the situation
      or to assume that the incident was on purpose or not because, you know, I
      would think that if a child was getting abused by somebody, that child
      would not want to be around that person, but at the same time, he was still
      wanting to be around Josh, you know. He would want to go outside and
      play with Josh.

      Q So what you' re saying, if I understand correctly, just to sort of condense
      it is until this incident, it seemed everything was okay. There was no reason
      to suspect otherwise?

      A For the most part, yes.

1 VRP (Dec. 2, 2015) at 167. On redirect, the prosecutor asked the following:

      Q Ms. Brown, has your understanding changed?

      A Yes.

                                            9
No. 34031-7-III
State v. Brink



       Q Can you explain that?

       A I believe now after listening to the experts and seeing, you know, the
       reports and everything that it was done on purpose.

Id. at 168.

       The State claims the defense opened the door to Ms. Brown's testimony. We

disagree. The defense asked Ms. Brown about the relationship between K.S.D. and Mr.

Brink "prior" to the burning incident. Id. at 167. This did not open the door to the

prosecution introducing testimony about what Ms. Brown's impressions were regarding

the incident or what she learned afterwards. See State v. Gefeller, 76 Wn.2d 449,455,

458 P.2d 17 (1969).

       Although the prosecutor's question improperly elicited Ms. Brown's opinion about

the testimony of other witnesses, defense counsel's failure to object was reasonably

strategic. Ms. Brown's testimony made clear that the only basis she had for doubting Mr.

Brink's innocence was the testimony of the experts. Her independent experience was to

the contrary. This testimony provided Mr. Brink an additional reason for why the jury

should disbelieve the expert testimony as speculation and find Mr. Brink not guilty.




                                            10
No. 34031-7-III
State v. Brink


Evidentiary error

       Mr. Brink contends the trial court abused its discretion by admitting multiple

photographs ofK.S.D.'s injuries. We disagree. Although the photographs were

somewhat cumulative, they were not excessive. Only three separate photographs were

shown to the jury. All accurately depicted K.S.D.'s injuries. And all were probative, as

they supported Dr. Messer's theory of causation. While the subject matter of the

photographs was unpleasant, there is no indication the State used the photographs to

inflame the jury. Given these circumstances, the trial court acted within its discretion in

admitting the photographs. State v. Whitaker, 133 Wn. App. 199, 227-29, 135 P.3d 923

(2006).

Sentencing error

      Mr. Brink contends, and the State agrees, that the trial court erred in imposing a

total term of confinement and community custody that exceeds the statutory maximum.

Mr. Brink was convicted of second degree assault of a child. That crime carries a

statutory maximum term of incarceration of 120 months. RCW 9A.36.130(2);

9A.20.02l(l)(b). In addition, a community custody term of 18 months is authorized.

RCW 9.94A.701(2); RCW 9.94A.030(55)(ix).




                                             11
No. 34031-7-III
State v. Brink


       Here, the trial court sentenced Mr. Brink to 120 months of confinement and

18 months of community custody. This exceeds the statutory maximum. The court

included a notation on the judgment and sentence indicating the total term of confinement

and community custody actually served could not exceed the statutory maximum. Such a

notation was sufficient under In re Personal Restraint of Brooks, 166 Wn.2d 664,211

P.3d 1023 (2009). 4 State v. Boyd, 174 Wn.2d 470,472,275 P.3d 321 (2012). However,

that changed after the passage ofRCW 9.94A.701(9) in 2009. Id. Following enactment

of this statute, the Brooks notation procedure no longer complied with statutory

requirements. Id. Because Mr. Brink was sentenced after RCW 9 .94A.701 (9) became

effective, the trial court was required to reduce his term of community custody to avoid a

sentence in excess of the statutory maximum. The court erred in not doing so. Remand

to the trial court is required to either amend the community custody term or resentence

Mr. Brink consistent with RCW 9.94A.701(9). Id. at 473. 5




      4
         Brooks held when the trial court imposes an aggregate term of confinement and
community custody that potentially exceeds the statutory maximum, it must include a
notation clarifying that the total term of confinement and community custody actually
served may not exceed the statutory maximum. 166 Wn.2d at 674-75.
       5 Should the trial court opt to strike the term of community custody, Mr. Brink's

presence will not be required at the hearing.

                                            12
No. 34031-7-III
State v. Brink


                                     CONCLUSION

       Mr. Brink's conviction is affirmed. This matter is remanded to the trial court for

either amendment of the community custody term or resentencing. Mr. Brink's request to

deny appellate costs is granted.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.




                                          Pennell, J.
WE CONCUR:




                                    j




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