                                                                                                            FILED
                                                                                                    COURT OF APPEALS
      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTO1S ION 11
                                                                                                   D! D APR ! it   AM 9: 50
                                                   DIVISION II
                                                                                                  S
    STATE OF WASHINGTON,                                                          No. 44866 -1 - II
                                                                                                   BY_
                                        Respondent,


         v.




    COURTNIE DANIELLE CROSBY,                                               UNPUBLISHED OPINION


                                        Appellant.


        MELNICK, J. —      Courtnie Crosby appeals her convictions for residential burglary, robbery

in the first degree,   and violation of a court order.             Crosby argues that the trial court violated her

right to present a defense when it denied her continuance motion and that she received ineffective

assistance of counsel. We affirm.


                                                       FACTS


I       THE CRIMES


         Crosby and Felix Preval had a romantic relationship that ended in late December 2011.

Crosby and her children resided with Preval in his home until their relationship ended.

         A    no contact order prohibited         Crosby     from contacting Preval.     On December 28, 2011,


Crosby went to Preval' s home to retrieve some of her belongings, but an argument ensued and she

left. Later in the evening, Crosby returned. While Preval and Crosby loaded her belongings into

a vehicle, Darnell Jones and Clayton King attacked Preval. After dragging Preval into his home,

Jones   and   King   stabbed   Preval   several   times in   his   abdomen,   puncturing his   stomach.   They   also
44866 -1 - II




took   approximately $ 19, 000 in         cash    from Preval'    s   home.   Crosby entered and remained in the

home throughout the incident.             After the stabbing, Crosby did not help Preval, and she fled the

scene.




         The State charged Crosby by amended information with assault in the first degree,

residential burglary, robbery in the first degree, and felony violation of a court order. Additionally,

the State alleged that Crosby or an accomplice was armed with a deadly weapon during

commission of the assault, burglary, and robbery.

II.      MOTION FOR CONTINUANCE


         Initially set for May 7, 2012, the trial court continued the trial four times because the parties

needed time to prepare for trial and Crosby' s co- defendant was assigned a new attorney.

         Due to a breakdown of communication with Crosby, her attorney enlisted another defense

attorney to     assist   him   on   Crosby' s   case.   On January 29, 2013, Crosby' s original attorney moved

to withdraw and asked that the attorney who assisted on Crosby' s case substitute as counsel. The

new attorney represented to the trial court that she had been involved in the case for approximately

three months, that she had already reviewed the discovery, and that she had talked to Crosby. She

assured the trial court that she could try the case without any additional continuances if it was set

over about a month. At that time, the defense knew of no new witnesses. The following colloquy

occurred between the trial court and the new attorney:

         THE COURT: [ R] eally, really, really, really,                you can   be ready   on   March 4th? If

         you were a brand -new lawyer walking into this thing, I really don' t feel like I can
         hold you to that. You have actually seen the discovery and talked to the defendant,
         so you should have a basis —
          ATTORNEY]:                Your Honor, I would say I have been involved in this case, you
         know —I'        m going to say approximately three months.
         THE COURT: So, you feel confident.
          ATTORNEY] : [ The             original attorney] might be able to correct me on that. I have
         had discussions with [ him] and Ms. Crosby together and separately regarding the




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         case, and I have read all of the discovery. I have read through it all. Some of them
         in depth with Ms. Crosby.
         THE COURT: Does March 4th work for you?
             ATTORNEY] : Yes, it does.


Report   of    Proceedings ( RP) ( Jan. 29, 2013)               at    13 - 14.     Over the State' s objection, the trial court

granted the motion to withdraw, entered an order authorizing substitution of counsel, and


continued the trial to March 4, 2013.


         On the morning          of   March 4,       Crosby    moved         for    a continuance.      In support of her motion,


the attorney explained that two -and -a -half weeks prior to trial, she learned that Crosby " has a

                                   including                                            the   alleged victim   in this   case."    RP
lifelong history        of abuse                    abuse and violence with




 Mar. 4, 2013, J. Chushcoff)             at   5.     The attorney argued that she believed Crosby suffered from

battered person syndrome and that it would be an appropriate defense to the charges. At that point,

she was in the process of gathering Crosby' s mental health records, but because many records were

out of   state,   she   did   not yet   have       all of   them.    She advised the trial court that two psychologists


agreed with       her "   analysis of    the       situation and [ were]           willing to   support   that defense"       but they

weren'   t   available    the first two   weeks of           March. RP ( Mar. 4, 2013, J. Chushcoff)                at   5.    Crosby

argued that she needed expert testimony to explain why Crosby would make otherwise seemingly

illogical statements to law enforcement.


             The State objected, noting that Crosby' s prior conviction for assault constituted the only

known domestic violence between Crosby and Preval. Crosby did not persuade the trial court that

battered      person syndrome would            be     an applicable        defense in the       case.   The trial court denied the


continuance motion            because the      case    had been pending for approximately                  one year and "[      t]hat' s


plenty   of    time   for the defense to       get   ready    on    this   case."    RP ( Mar. 4, 2013, J. Chushcoff) at 18.




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44866 -1 - II




          Again on March 4, Crosby renewed her continuance motion and requested two additional

weeks     to   prepare.     Her attorney represented to the trial court that once she became Crosby' s trial

counsel and started working with her to prepare for trial, she learned more about Crosby' s

background and realized that there was " an issue pertaining to battered women' s syndrome [ that

is] ...   definitely .       relevant in terms of explaining Ms: Crosby' s conduct before, during, and after

the    events   that   caused      the   charges     to   be brought."    RP ( Mar. 4, 2013, J. Culpepper)       at   8.   She


intended to use battered person syndrome to explain why Crosby gave conflicting and untrue

statements       to law     enforcement.             At that time, no potential expert witnesses had performed


psychological examinations of Crosby. The trial court again denied the continuance motion and

stated that battered person syndrome would not be applicable to Crosby' s defense.

III.       THE TRIAL


           Preval testified that on December 28, 2011, prior to Crosby' s arrival, he saw two men

outside his home. During the attack, Crosby didn' t help Preval; he thought that he heard Crosby

       she wanted      to   call   the   police, "   but   not with   any kind   of   energy."   RP ( Mar. 6, 2013) at 123.
say


Preval also heard Jones tell Crosby not to call the police and that he didn' t want to hurt her.

According to Preval, Crosby faced him during the stabbing. Preval had not previously told Crosby
about     the   cash he kept in his home.                 While Preval recuperated from his injuries in the hospital,

Crosby contacted him via text message and told him that one of the men raped her.

           The State presented further evidence of Crosby' s involvement in the incident through the

testimony of Detectives Robert Baker and Health Holden, who described Crosby' s changing
accounts        of the incident.         During Detective Baker' s first interview with Crosby on February 1,

2012, Crosby said Jones and King dragged Preval inside and then came back outside and forced




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44866 -1 - II




her into the residence. Crosby gave Detective Baker a detailed account of an alleged sexual assault

committed upon her. The intensity of Crosby' s emotions varied throughout the interview.

          Following the interview, Detective Baker obtained a warrant to locate and seize evidence

of the alleged sexual assault. However, swabs of suspected liquids from the carpet in the room in

which Crosby claimed she was sexually assaulted returned no evidence to substantiate that a sexual

assault had occurred.


          On March 8,            Detective Holden interviewed Crosby while Detective Baker watched.

                      it very           that         had nothing to do   with [the men             involved in the incident]"   and
Crosby " made                   clear          she




that   she "   had   not contacted       them."       RP ( Mar. 11, 2013)         at   282.   She again claimed that she was


sexually assaulted. Crosby said that she did not receive anything taken during the incident.

          Immediately following the interview with Detective Holden, Detective Baker again

interviewed Crosby. Detective Baker told Crosby that law enforcement knew that she had set up
the robbery.         Crosby     said   that   she received    twenty -three   $   100 bills from Jones and King following

the incident.        She said that Jones is a friend, and she sought his help to get her belongings back

from Preval.         She admitted that she planned to rob Preval of money. Crosby told Detective Baker

that she met Jones and King prior to the incident, and she told them they would have to jump
Preval    outside      and    bring     him into the      residence.     Crosby drove Jones and King to Preval' s

residence, and dropped them off a few blocks away. Later in the interview, Crosby admitted that

she lied about the sexual assault. Finally, on March 9, Crosby told Detective Baker that Jones told

her to go to the back bedroom during the incident and make it sound like she had been assaulted.

          Crosby testified at trial. She apprised the jury of her feelings and emotions at the times of

the    interviews, but       not about               mental   health diagnoses         or   her   history   of abuse.   She testified
                                              any


that discussions        with     Jones    and   King    about   robbing Preval         were a     joke.     Crosby said she did not




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44866 -1 - II



know that Preval kept cash in his residence and that Jones had pulled her hair and forced her to

take an envelope of cash to prevent her from going to law enforcement. Crosby admitted to taking

the cash and spending some of it. Crosby acknowledged the falsity of the sexual assault story and

said   that Jones told her to tell Detective Baker that she was                   raped.    Crosby testified that she did

not    tell Preval   about   any   sexual assault.   She said that she lied to Detective Baker because she


feared Jones and King, and that she continued to lie in subsequent interviews because she thought

she needed to provide consistent statements. Crosby testified that she agreed with what Detective

Baker suggested during the first interview only because he " kept banging on the table" and she

wanted him to stop. RP ( Mar. 12, 2013) at 429.

          The jury found Crosby not guilty of assault in the first degree, but guilty of robbery in the

first degree while armed with a deadly weapon, residential burglary while armed with a deadly

weapon, and violation of a court order. The trial court sentenced her to a standard range sentence

of 77 months in custody. Crosby appealed.

                                                     ANALYSIS


I.         RIGHT TO PRESENT A DEFENSE


           A.        Standard of Review


           A defendant in      a criminal   trial has   a constitutional right         to    present a    defense.     State v.


Rehak, 67 Wn.         App.   157, 162, 834 P. 2d 651 ( 1992). " The right of an accused in a criminal trial


to due process is, in essence, the right to a fair opportunity to defend against the State' s

accusations."        Chambers v. Mississippi, 410 U. S. 284, 294, 93 S. Ct. 1038, 35 L. Ed. 2d 297 ( 1973).

However, a criminal defendant's right to present a defense is not absolute; a defendant seeking to

present evidence must show            that the   evidence   is "   at   least   minimal[   ly]   relevant '   to a fact at issue




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44866 -1 - II




in the    case.     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 trial court' s denial of a continuance motion may infringe on a defendant' s right to

compulsory          process      and right       to    present    a   defense " if the denial prevents the defendant from


presenting         a witness material          to [ her]   ...   defense."    State v. Downing, 151 Wn.2d 265, 274 -75, 87

P. 3d 1169 ( 2004).          We determine whether a trial court' s denial of a continuance motion violated a

criminal defendant's constitutional right to present a defense on a case -by -case basis, examining

  the    circumstances present                in the    particular case.'"       Downing, 151 Wn.2d at 275 n.7 ( quoting

State    v.   Eller, 84 Wn.2d 90, 96, 524 P. 2d 242 ( 1974)).                    We review the trial court' s decision to grant


or   deny      a continuance motion              for   an abuse of      discretion.    Downing,       151 Wn.2d       at   272.   A trial


court abuses its discretion when its decision is manifestly unreasonable or based on untenable

grounds or reasons.              State   v.   Lord, 161 Wn.2d 276, 283 -84, 165 P. 3d 1251 ( 2007). And we review


de novo claims of a denial of Sixth Amendment rights, including the right to present a defense.

See e. g., Jones, 168 Wn.2d at 719; State v. Iniguez, 167 Wn.2d 273, 280, 217 P. 3d 768 ( 2009).
              B.       The Trial Court' s Continuance Ruling Did Not Violate Crosby' s Right to Present
                       a Defense


              Crosby argues that by denying her continuance motion to secure records of her history of

abuse and to procure expert testimony on battered person syndrome, the trial court abused its

discretion         which resulted         in    a violation       of   her   constitutional   right   to   present   a   defense.    We


disagree.


               E] ven where the denial of a motion for continuance is alleged to have deprived a
              criminal defendant of his or her constitutional right to compulsory process, the
              decision to deny a continuance will be reversed only on a showing that the accused
              was prejudiced by the denial and /or that the result of the trial would likely have
              been different had the            continuance not         been denied.
44866 -1 - II



State   v.   Tatum, 74 Wn.           App.   81, 86, 871 P. 2d 1123 ( 1994).               Here, the trial court did not abuse ,its


discretion by denying the motion for a continuance. Crosby can demonstrate neither prejudice nor

that the result of the trial would likely have been different.

             A   subset        of   post- traumatic     stress      disorder ( PTSD),         battered person syndrome is a


 collection of behavioral and psychological characteristics exhibited by victims of a prolonged,

repetitive pattern of physical and emotional abuse at                         the hands      of   their   partners."    State v. Riker,


123 Wn.2d 351, 358, 869 P. 2d 43 ( 1994).                          Evidence of abuse and battered person syndrome can


be admitted to support a claim of self -defense. In re Pers. Restraint ofFaircloth, 177 Wn. App.
                                                                                                                                      1
161, 169, 311 P. 3d 47 ( 2013) ( citing State                 v.   Janes, 121 Wn.2d 220, 238 -41, 850 P. 2d 495 ( 1993)).


Self-defense          requires,       along   with    other     evidence,     that "      the defendant reasonably perceived .

imminent danger                of great personal     injury."      Faircloth, 177 Wn. App.          at    169. "[ T] he syndrome [ is]


    admitted only in cases in which the batterer and the victim have developed a strong relationship,
             over a period of years."              Riker, 123 Wn. 2d          at   360.    Expert testimony on this syndrome
usually


outside ofthe context of a relationship between the batterer and the victim is not admissible. Riker,
123 Wn.2d            at   363.      Furthermore, evidence of battered person syndrome is not admissible for

purposes of "' general              credibility. '     State v. Green, 182 Wn. App. 133, 155, 328 P. 3d 988 ( 2013)

 quoting State            v.   Hanson, 58 Wn.        App.   504, 508, 793 P. 2d 1001 ( 1990)), review denied, 337 P. 3d


325 ( 2014).




 1 Battered woman syndrome and battered child syndrome both " find their basis in abuse -induced
PTSD         and elicit a similar response            from the      abuse victim."        Janes, 121 Wn.2d        at   235. " Given

the close relationship between the battered woman and battered child syndromes, the same
                                                the former apply            with equal     force to the latter."       Janes, 121
reasons       that   justify     admission of

 Wn.2d at 235.



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         The trial court acted reasonably by denying Crosby' s continuance motion. Crosby was in

custody   and     the trial had been pending for           almost one year.      The trial date had already been

continued       four times.     Despite learning this new information two -and -a -half weeks prior to the

trial date,     Crosby did    not move    for       a continuance until   the   day   of   trial.   The potential expert


witnesses had not yet evaluated Crosby and were opining based on only what Crosby' s counsel

had represented to them. At the time she moved for a continuance, Crosby failed to establish the

admissibility or materiality of these experts' testimony. Because the trial court' s decision to deny

the continuance motion was not manifestly unreasonable or based on untenable grounds, the trial

court did not abuse its discretion.


          Additionally, when reviewing the record and the particular circumstances of the case,

Crosby has not shown that any prejudice resulted from the denial of her continuance motion. The

records and expert testimony regarding battered person syndrome were not relevant to her defense.

Crosby did        not claim          defense.
                                self -          -   Furthermore, the record demonstrates that Crosby did not

participate in the use of force against Preval and she did not perceive imminent danger of great

personal      injury by   Preval.    In fact, Crosby wanted to offer expert testimony on battered person

syndrome to explain her behavior during and after the incident, e. g. why she did not call the police,

why she accepted money from Jones and King, and why she gave conflicting statements to

Detectives Holden         and   Baker.   This use of battered person syndrome is irrelevant to her defense


and expert testimony would not be relevant in this context. See Riker, 123 Wn.2d at 358. Because

the evidence Crosby would have offered if the trial court granted her continuance motion is not

minimally relevant to a fact at issue in the case, she cannot show that she was prejudiced by the
denial or that the result of the trial would likely have been different. The trial court did not violate

 Crosby' s right to present a defense or abuse its discretion, and Crosby was not prejudiced.



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II.       THE TRIAL COURT' S RULING DID NOT RESULT IN INEFFECTIVE ASSISTANCE OF COUNSEL

          A.          Standard of Review


           Crosby also contends that the trial court decision to deny the continuance resulted in her

attorney providing ineffective          assistance of counsel.        To prevail on an ineffective assistance of


counsel claim,        Crosby    must show   that   counsel' s performance was so          deficient that it "`fell below


an objective standard of reasonableness '            and that the deficient performance prejudiced her. State


v.    Thomas, 109 Wn.2d 222, 226, 743 P. 2d 816 ( 1987) ( quoting               Strickland v. Washington, 466 U.S.

668, 688, 104         S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984)). There is a strong presumption that defense

counsel' s performance was not deficient. State v. McFarland, 127 Wn.2d 322, 335, 899 P. 2d 1251

 1995).       To establish prejudice, the defendant must show a reasonable probability that the deficient

performance affected the outcome of the trial. Thomas, 109 Wn.2d at 226. We review ineffective

assistance of counsel claims de novo. State v. Sutherby, 165 Wn.2d 870, 883, 204 P. 3d 916 (2009).

           B.          Crosby Did Not Receive Ineffective Assistance of Counsel

              Crosby argues ineffective assistance of counsel because her counsel could not adequately

                her                                                   to               battered   person syndrome.   We
represent             without evidence and expert         testimony        establish




disagree and hold that Crosby did not receive ineffective assistance of counsel.

              Performance may be deficient if "counsel failed to conduct appropriate investigations to

 determine what defenses were available, adequately prepare for trial, or subpoena necessary

witnesses."       State   v.   Maurice, 79 Wn.     App.   544, 552, 903 P. 2d 514 ( 1995).         When the courts have


 held that a failure to investigate or call a potential witness constituted ineffective assistance, the

 witness has been crucial to the presentation of a legitimate defense. See, e. g., Thomas, 109 Wn.2d

 at    232.     As discussed above, battered person syndrome is not a legitimate defense in the

 circumstances of Crosby' s case because she did not present a defense of self -defense. Therefore,



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44866 -1 - II




her counsel was not deficient because any evidence regarding battered person syndrome was not

admissible.     Because Crosby fails to establish that her counsel' s performance was deficient, her

ineffective assistance of counsel claim fails.


         We affirm Crosby' s convictions.

         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.




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                                                               Melnick, J.


We concur:




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