                                                                                                             ILED

    IN THE COURT OF APPEALS OF THE STATE OF                                                         W$AGfrON
                                                       DIVISION II                              2015 AUG I i     AM 9: 11

 STATE OF WASHINGTON,
                                                                                                                 HltiGTON

                                                                                                By _
                                          Respondent,


          V.



NATASHIA R. MEYER,                                                                 UNPUBLISHED OPINION




          MELNICK, J. —         Natashia Meyer appeals her conviction for murder in the first degree with

a firearm enhancement. Meyer argues she received ineffective assistance of counsel for failure to

propose a voluntary intoxication jury instruction and the trial court abused its discretion when, as

a condition of community custody, it prohibited Meyer from entering places whose primary

business is the       sale of   liquor.   We affirm Meyer' s conviction for murder in the first degree, but

remand to the trial court to strike the referenced community custody provision.

                                                              FACTS


                             2013, Natashia Meyer                   Sam Blevins          multiple   times.     He died from the
          On     May 28,                                     shot




gunshot wounds.          The State, by amended information, charged Meyer with murder in the first

degree with a firearm enhancement.

          Meyer is a long time methamphetamine user. She and Blevins were friends and frequently

used methamphetamine              together.      Meyer invited Blevins to her home.                    When he arrived in his


vehicle, she met him outside and shot him.


          Immediately after shooting Blevins, Meyer called 911 to report what happened. In the call,
Meyer said that she shot Blevins because " he raped [ her] last night" and was " bragging about it."

                                                                            She          that             seeing " tracers."   Ex.
Ex. 51,    at   3.   Meyer   admitted     to   being   a   drug   addict.         said          she was
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51, at 6. During her medical examination and law enforcement interviews later that night, Meyer

exhibited symptoms of being under the influence of methamphetamine.

         Prior to trial, Meyer' s defense counsel indicated that the general nature of her defense was

 diminished capacity"            and "   justification."    Clerk'     s   Papers ( CP)     at   118, 127. The State moved in


limine to exclude the testimony of Dr. Kenneth Muscatel, a psychologist and the defendant' s

expert. He initially performed the evaluation to determine " whether or not there was diminished

                                                   the incident,             he determined there        was not."    I Report of
capacity    or
                 insanity   at   the time     of                    and




Proceedings ( RP) at 62.


         At the hearing on the State' s motion, the trial court heard an offer of proof that Dr. Muscatel
issued   a report,   concluding that "` [ t] here          is not much question Ms. Meyer engaged in intentional

behavior    when she shot         Mr. Blevins'       and ... `[   h] er     actions   included thinking   ahead."'    CP at 110.


He   also opined     that   he "`   saw no compelling evidence [ that] she was psychotic at the time of the

incident,   or otherwise out of touch with               reality."'        CP   at   110. Dr. Muscatel further reported that


     t] here is no evidence [ that Meyer] did not understand her conduct was against the law, but she

said she    felt justified in shooting [ Blevins]."'              CP   at   111. Defense counsel informed the trial court


that Meyer would present a defense ofjustifiable homicide and not diminished capacity. The trial

court partially granted the State' s motion but reserved on whether or not Dr. Muscatel had anything

relevant relating to the defense of justifiable homicide.

          At trial, Meyer testified that             she   feared Blevins.            She testified that "[ she] was trying to


shoot    him" because she "         wanted    him to know         what      he did   was   wrong." IV RP at 504. Meyer also


testified that at the time          of    the shooting, she was             high     on methamphetamines.      During closing

argument, defense counsel argued that Meyer shot Blevins to defend herself.




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           The jury found Meyer guilty of murder in the first degree, and specially found that she was

armed with a firearm. The trial court sentenced Meyer to a standard range sentence of 360 months

of confinement.         As a condition of community custody, the trial court ordered that Meyer " shall

not go into bars, taverns, lounges, or other places whose primary business is the' sale of liquor."

CP at 14. Meyer appeals.


                                                      ANALYSIS


I.         INEFFECTIVE ASSISTANCE OF COUNSEL


           Meyer argues that she received ineffective assistance of counsel when defense counsel


failed to propose a voluntary intoxication jury instruction. We disagree.

           A.         Standard of Review


           To prevail on an ineffective assistance of counsel claim, Meyer must show that defense

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) (      citing Strickland v. Washington, 466 U.S. 668, 688, 104. 5. Ct. 2052, 80 L. Ed. 2d 674
     1984)).     Failure to establish either prong is fatal to an ineffective assistance of counsel claim.

Strickland, 466 U.S. at 700. An attorney' s performance is deficient if it falls " below an objective

standard of reasonableness            based   on consideration of all   the   circumstances."   State v. McFarland,


 127 Wn.2d 322, 334- 35, 899 P. 2d 1251 ( 1995).                 Deficient performance prejudices a defendant if


there is a " reasonable probability that, but for counsel' s deficient performance, the outcome of the

proceedings would         have been different."      State v. Kyllo, 166 Wn.2d 856, 862, 215 P. 3d 177 ( 2009).


               Our scrutiny of defense counsel' s performance is highly deferential; we strongly .presume

reasonableness.          State   v.   Grier, 171 Wn.2d 17, 33, 246 P. 3d 1260 ( 2011).               To rebut this


 presumption,, Meyer bears the burden of establishing the absence of any legitimate trial tactic



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explaining      counsel' s performance.'            Grier, 171 Wn.2d          at   33.   Ineffective assistance of counsel is a


mixed question of          law     and   fact that   we review      de     novo.    State v. Sutherby, 165 Wn.2d 870, 883,

204 P. 3d 916 ( 2009).


         B.           Voluntary Intoxication Instruction

         To establish ineffective assistance of counsel for failing to request a voluntary intoxication

instruction, Meyer must first show that she was entitled to the instruction. She does not make this

showing.


         A trial      court will    instruct   a   jury   on   voluntary intoxication if: (1) the crime charged includes


a particular mental state as an element, ( 2)                   there is substantial evidence of methamphetamine use,


and ( 3) the defendant presents evidence that the drug use affected her ability to form the requisite

mental    state.      State   v.   Everybodytalksabout, 145 Wn.2d 456, 479, 39 P. 3d 294 ( 2002).                           The


evidence must have reasonably and logically connected Meyer' s apparent intoxication with her

asserted inability to form the requisite level of culpability to commit murder in the first degree.
See State       v.   Griffin, 100 Wn.2d 417, 418- 19, 670 P. 2d 265 ( 1983).                        Evidence of intoxication,


standing alone, is insufficient to warrant the giving of a voluntary intoxication jury instruction;
there must be.substantial evidence of the alcohol's effect on the defendant' s mind and body. State

v.   Finley, 97      Wn.   App.    129, 135, 982 P. 2d 681 ( 1999) ("[             T] he court is required to give a voluntary

intoxication instruction only in those cases in which the level of mental impairment caused by

alcohol or drugs clearly affected the defendant's criminal responsibility by eliminating the

necessary mens rea.").

          Here, intent is          an element of murder             in the first degree.        RCW 9A.32. 030( 1)(   a).   And


 although the record contains evidence that Meyer' s intoxication at the time of the offense resulted

 from methamphetamine use, Meyer must demonstrate substantial evidence of the effects of the




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drug on her body or mind. Finley, 97 Wn. App. at 135. The evidence must also " reasonably and

logically      connect [   her]   intoxication with the asserted inability to form the required level of

culpability     to   commit   the      crime charged."    State v. Gabryschak, 83 Wn. App. 249, 252- 53, 921

P. 2d 549 ( 1996).,


         Here, Meyer presented no evidence that intoxication affected her ability to formulate the

intent to   commit murder              in the first degree.   In fact, even though he did not testify at trial, Dr.

Muscatel, her expert, concluded that Meyer engaged in intentional behavior when she killed

Blevins.       Because Meyer fails to demonstrate that she would have been entitled to a voluntary

intoxication instruction, Meyer cannot establish that defense counsel' s performance was deficient

for failing to request it. Therefore, her ineffective assistance of counsel claim fails.

          Even assuming that Meyer was entitled to an involuntary intoxication jury instruction, she

cannot overcome her burden to show the absence of any conceivable legitimate trial tactic

explaining defense counsel's decision to not request an involuntary intoxication jury instruction.
See Grier, 171 Wn.2d              at   42.   In light of Dr. Muscatel' s, conclusion that Meyer did not have a

diminished capacity at the time she killed Blevins, defense counsel chose to pursue a justification
defense.       Defense counsel elicited testimony to support this defense, including that Meyer was

scared of      Blevins.    In closing argument, defense counsel emphasized that Meyer shot Blevins to

defend herself. And defense counsel proposed a justifiable homicide instruction that the trial court

gave to the jury. It is clear from Meyer' s testimony and from defense counsel' s closing argument

that an involuntary intoxication jury instruction would have weakened the defense theory of the

 case.   Apart from diverting the jury' s focus from the defense theory of the case, defense counsel

 may have decided not to request the instruction because it conflicted with Meyer' s explanation of

 why     she    shot   Blevins.         Because defense counsel' s decision not to request an involuntary




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intoxication jury instruction was a legitimate trial strategy, Meyer cannot meet her burden to prove

her counsel was ineffective.


II.       ALCOHOL- RELATED COMMUNITY CUSTODY PROVISION.


          Meyer argues for the first time on appeal that the trial court acted outside its authority when

it imposed a community custody provision prohibiting Meyer from entering places whose primary

business is the         sale    of   liquor.    The State concedes that this community custody provision is

improper because the provision is not reasonably related to the circumstances of Meyer' s offense.

We accept the State' s concession and remand to strike this condition.


          A.           Standard of Review


            An    unlawful sentence            may be   challenged        for the first time   on appeal."   State v. Warnock,


174 Wn.     App. 608,          611, 299 P. 3d 1173 ( 2013).           Under RCW 9. 94A.703( 3)( f),the trial court may

require     the       defendant to " comply             with    any   crime -related      prohibitions."      A crime -related


prohibition is " 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). We review the trial


court' s imposition of crime -related prohibitions for an abuse of discretion. State v. Warren, 165

Wn.2d 17, 32, 195 P. 3d 940 ( 2008).


           B.          Alcohol is not Reasonably Related to the Circumstances of Meyer' s Offense

           Here, the record contains no evidence that alcohol contributed to Meyer' s offense in any

way. Therefore, the condition prohibiting Meyer from entering places whose primary business is
the sale of liquor does not reasonably relate,to the crime of murder in the first degree. Because the

 trial   court    abused its discretion,         the State' s    concession       is   proper.   Accordingly, we accept the

 State' s concession.




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         We affirm Meyer' s conviction for murder in the first degree, and remand to the trial court


to strike the community custody provision prohibiting Meyer from entering places whose primary

business is the sale of liquor.


         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.




                                                              Melnick, J.


We concur:




         Johanson, C. J.




         M,




                gen, J. —•




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