       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                      )
                                          )   No. 77031-4-1
                     Respondent,          )
                                          )   DIVISION ONE
              v.                          )
                                          )
DAVID EDWARD DREWERY III,                 )   UNPUBLISHED OPINION
                                          )
                     Appellant.           )   FILED: April 1,2019
                                          )

       SMITH, J. — David Edward Drewery III appeals his conviction for drive-by

shooting. He argues that his counsel was ineffective for failing to object when

the State solicited testimony from Drewery's girlfriend that Drewery "should have

known something like this could have happened," in direct violation of the trial

court's in limine ruling just 20 minutes earlier. This improperly solicited testimony

was central to the State's case, and an objection would likely have been

sustained. Furthermore, no legitimate tactic or strategy can explain counsel's

failure to object, and Drewery was prejudiced by that failure. Therefore, we

reverse.

                                      FACTS

       Drewery was the driver of a car from which shots were fired during a drive-

by shooting on March 15, 2017. At the time of the shooting, there were three

passengers in Drewery's car. One of them was Malik Fulson, to whom Drewery's

girlfriend, Rayzene McCartha, had recently introduced Drewery.
No. 77031-4-1/2

       The State charged Drewery with drive-by shooting under an accomplice

liability theory. During trial, the jury heard testimony that on the day of the

shooting, Drewery borrowed McCartha's car, a black Nissan, and picked up

Fulson from his work at Popeye's restaurant. Drewery testified that when he

picked up Fulson, Fulson indicated that some of his friends were at Kush Mart, a

cannabis retailer, and asked Drewery to drive there. Drewery complied, drove to

Kush Mart, and parked on the road outside the Kush Mart parking lot in front of a

white car that was already there. A number of people were gathered by the white

car. Drewery testified that everyone "kind of mingled together, chitchat[ting]." He

testified that he did not know any of the other people in the group.

       At some point, Karar Al-Buturky drove into the Kush Mart parking lot in his

BMW. His friends, Mohammed Al-Rikabi and Ali Al-Nighashi, were with him in

the car. As they pulled into Kush Mart, they saw a group of people hanging out

by two cars—a white Nissan and a black Nissan. Al-Buturky and his friends

exchanged looks with the group. When they were finished at Kush Mart, they got

back into Al-Buturky's car. As they left the Kush Mart parking lot, they again

passed the group of people hanging out by the white and black cars. Because

some of the group were in the roadway, Al-Buturky had to drive around them and

into the opposite lane of traffic. Al-Nighashi testified that as Al-Buturky did so,

one person in the group "did something with his back where he got closer to the

car. . . . He was looking at us like this as we passed him, and he kind of moved

his body closer to the car as we continued going." Al-Buturky gave his car a

"good amount" of gas as he went around.


                                          2
No. 77031-4-1/3

       Drewery testified that he did not see Al-Buturky's BMW arrive at Kush

Mart, but he did notice it leave. He testified that, at some point before the BMW

left, Fulson asked him to give two of Fulson's friends a ride and drop Fulson off

with them. Drewery agreed and began moving a car seat and other items into

the trunk of his car. He noticed the BMW leave as he was closing his trunk. As

Drewery, Fulson, and Fulson's friends left in Drewery's car, Fulson asked

Drewery to follow the white car that had been parked with him. Drewery

complied.

       According to Al-Buturky, after leaving Kush Mart, he planned to drive to Al-

Rikabi's house a short distance away. But on the way there, he noticed the white

car pull up quickly behind him as if it were following him, then make a U-turn and

go back the other direction. Instead of turning into Al-Rikabi's house, Al-Buturky

decided to keep driving. Al-Buturky testified that the black car then appeared

and followed him. Al-Buturky eventually stopped at a stop sign at Olympic and

Madison, deciding whether to go left or right. He testified that the black car

pulled up and stopped about two car lengths behind him, and at that point, he

saw the driver and the front passenger making what he perceived as gang signs.

He testified that the black car then pulled up next to him on the left side of his car

and stopped. A gun appeared out of the black car's passenger-side rear window

and began shooting at Al-Buturky's car.

       According to Drewery, after he departed the Kush Mart with Fulson and

his friends, he was trying to figure out where the white car went when he noticed

it driving back toward him. He stopped his car and asked Fulson if he should


                                          3
No. 77031-4-1/4

turn around and follow the white car, but Fulson, who was sitting in the seat

behind him, told him to keep going. Drewery continued driving and eventually

came upon the BMW,sitting at a stop sign. Drewery testified that the BMW was

"just sitting there," not moving, and that he was trying to figure out whether it was

going to keep going. He testified that he did not make any obscene gestures at

the BMW. But he could see the BMW driver's face in the BMW's rearview mirror

and may have tried to communicate something to the effect of, "So are you going

to move your car? Are you just kind of sitting there? What's [sic] you going to

do? Are you going to move your car?" When the BMW did not move, Drewery

decided to drive around it to the left As he did so, he heard gunshots. He

testified that he did not know where they were coming from.

       Al-Buturky testified that as soon as he and his passengers heard

gunshots, they ducked down in the car. After the firing stopped and Al-Buturky

and his passengers confirmed that none of them had been shot, they decided to

chase down the black car, hoping to get a license plate number. A high-speed

chase ensued as Al-Buturky pursued the black car. At one point, he witnessed

the black car blow a tire as it hit a curb going around a corner. Al-Buturky also

saw the black car stop in a residential area and the passengers exit the car and

run away. Eventually, the black car pulled into Popeye's restaurant and parked.

Al-Buturky followed and stopped in front of Popeye's. He saw Drewery get out of

the black car, saying something like, "Mt wasn't me,[didn't mean to, 1 didn't do

it." Al-Buturky and Al-Nighashi approached Drewery and pinned him to the

ground. Officers responded shortly thereafter.


                                         4
No. 77031-4-1/5

       According to Drewery, once he heard the gunshots at Olympic and

Madison, he "put [his] feet on the accelerator" and thought, "I'm going. I'm not

staying here." After driving a short distance, he looked back to see if everyone

was all right in the car. At that point, he saw a gun in his rear passenger-side

passenger's lap. Drewery testified that he went from being scared to being

"pissed off" and that as he was driving, he made the decision that he needed to

get everyone out of his car. After hitting a curb, he stopped and told his

passengers that he wasn't driving anymore and that "You guys need to get the

hell out of my car." Drewery testified that Fulson initially protested, but Drewery

yelled at them to get out of the car and they did. He testified that he then drove

back to Popeye's to get more information about Fulson and to call the police.

       McCartha also testified at trial. Before she did so, the State requested to

elicit testimony from McCartha that when she learned about the drive-by shooting

from the police, "she was mad that her car and her boyfriend got caught up in this

and basically made the comment that night that she was mad because the

defendant didn't have to follow this car and he should have known that

something like this could have happened." (Emphasis added.) Defense counsel

objected on the basis that the testimony constituted McCartha's opinion. The

court then ruled:

      I think that she can say that she's angry, that it was her car, he
      should not have done this sort of thing. The final line I don't think
      she can say. That's an opinion. But her anger at the fact that he
      placed himself in a dangerous situation, with dangerous people, I
      think that's legitimate.[1]



      1 (Emphasis added.)
                                         5
No. 77031-4-1/6

        Nevertheless, just 20 minutes after the court's ruling, the following

exchange occurred during the State's examination of McCartha:

       Q.     [PROSECUTOR]: Ms. McCartha, did there come a time on
              the evening of March 15, 2017, when you got a call from
              your boyfriend Dave Drewery?
       A.     Yes.
       Q.     And is it fair to say that he was with some detectives when
              that call happened?
       A.     Yes.
       Q.     All right. Now, the detectives didn't tell you anything about
              exactly what had happened that night, did they?
       A.     No, they were very blunt about what happened.
       Q.     They were what?
       A.     Blunt. They just told me the car had been involved in a
              drive-by and that was basically it.
       Q.     You had sort of an emotional reaction to that, didn't you?
       A.     Yes.
       Q.     Would it be fair to say that you were angry?
       A.     Yes.
       Q.     And would it also be fair to say that you were angry because
              you had previously warned Dave about hanging out with
              Malik because he is dangerous?
       A.     Yes.
       Q.     And that he should have known something like this could
              have happened?
       A.     Yes.121

Defense counsel did not object to this testimony. A jury later convicted Drewery

as charged. Drewery appeals.

                                    ANALYSIS

       Drewery argues that his counsel was ineffective for failing to object when

the prosecutor, in direct contravention of the trial court's in limine ruling, asked

McCartha whether Drewery "should have known something like this could have




       2(Emphasis added.)     According to the verbatim report of proceedings, the
court made its ruling at 9:36 a.m., and the prosecutor elicited McCartha's "should
have known" testimony at 9:56 a.m.
                                          6
No. 77031-4-1/7

happened." We agree.

       The Sixth Amendment to the United States Constitution and article I,

section 22 of the Washington State Constitution guarantee the right to effective

assistance of counsel. In re Pers. Restraint of Brett, 142 Wn.2d 868, 873, 16

P.3d 601 (2001). "A claim of ineffective assistance of counsel is an issue of

constitutional magnitude that may be considered for the first time on appeal."

State v. Salas, 1 Wn. App. 2d 931, 949, 408 P.3d 383, review denied, 190 Wn.2d

1016 (2018). To prevail on a claim of ineffective assistance, a defendant must

establish that(1) his attorney's performance was deficient and (2) the deficiency

prejudiced him. State v. KvIlo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009). Here,

Drewery has established both deficient performance and prejudice.

1. Counsel's performance was deficient

       To establish that counsel's performance was deficient, Drewery must

prove that "counsel's performance fell below an objective standard of

reasonableness in light of all the circumstances." In re Pers. Restraint of Lui, 188

Wn.2d 525, 538, 397 P.3d 90 (2017). "The threshold for the deficient

performance prong is high, given the deference afforded to decisions of defense

counsel in the course of representation." State v. Grier, 171 Wn.2d 17, 33, 246

P.3d 1260 (2011). "To prevail on an ineffective assistance claim, [the]

defendant. . . must overcome 'a strong presumption that counsel's performance

was reasonable." Grier, 171 Wn.2d at 33 (quoting KvIlo, 166 Wn.2d at 862). To

that end, counsel's performance is not deficient if counsel's conduct can be

characterized as legitimate trial strategy or tactics. Grier, 171 Wn.2d at 33.


                                         7
No. 77031-4-1/8

Additionally, "to establish deficient performance based upon defense counsel's

failure to object, the defendant must show.. . that the proposed objection would

likely have been sustained." State v. Townsend, 142 Wn.2d 838, 850, 15 P.3d

145 (2001). "Only in egregious circumstances, on testimony central to the

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

justifying reversal." State v. Madison, 53 Wn. App. 754, 763, 770 P.2d 662

(1989).

       Here, it is beyond dispute that McCartha's testimony was central to the

State's case. The State acknowledged as much when it explained to the court,

before McCartha testified, why it was considering calling McCartha in its case in

chief, rather than solely as a rebuttal witness. Specifically, the prosecutor stated:

"So from my perspective this is very important because it goes to the element

that will be the only contested issue here, which is the defendant's knowledge of

what was going to happen before it happened." (Emphasis added.)

       Additionally, the State initially hoped to elicit from McCartha not only that

she had warned Drewery about Fulson and that in her opinion Drewery should

have known something like this could happen, but also that Fulson was "pretty

deep.. . into the gang life-style" and that he was a Crip. The State explained

that McCartha's testimony on these matters "directly goes to [Drewery's]

knowledge of the type of violent behavior that was about to follow when he was

. . . obeying Mr. Fulson's instructions to follow this car." The court barred

testimony regarding Fulson's gang affiliation along with McCartha's opinion that

Drewery "should have known that something like this could have happened."


                                          8
No. 77031-4-1/9

The fact that the prosecutor decided to risk an objection—or even a motion for a

mistrial—by posing the very question prohibited by the court further

demonstrates that the State considered McCartha's "should have known"

testimony central to its case.

       In light of these circumstances, defense counsel's failure to object was

egregious and cannot be explained by any legitimate tactic or strategy. Having

participated in the above-described argument regarding the permitted scope of

McCartha's testimony, defense counsel was clearly aware of its import to the

State. Furthermore, because the trial court had ruled, just 20 minutes earlier,

that McCartha's "should have known" testimony was inadmissible, an objection to

that very testimony would likely have been sustained. Finally, the prosecutor's

single question, and McCartha's response to it, could readily have been

addressed with a curative instruction had counsel objected. For these reasons,

counsel's performance was deficient.

       The State contends that counsel's performance can be explained by

legitimate trial tactics. It first argues, relying on State v. Kloepper, 179 Wn. App.

343, 317 P.3d 1088 (2014), that counsel "could have reasonably decided that an

objection would have highlighted the testimony." The State's reliance on

Kloepper is misplaced. In Kloepper, a detective testified about the process used

to create a photomontage in which the defendant's photo had appeared.

Kloepper, 179 Wn. App. at 355. The detective explained that although most

montage photos come from I-Leads, a database that includes booking photos

and other police contact information, the police had used the defendant's


                                          9
No. 77031-4-1/10

employment photo. Kloepper, 179 Wn. App. at 355. When defense counsel

asked whether the police also had a Department of Licensing (DOL) photo of the

defendant, the detective responded that the police had an I-Leads photo of the

defendant, but that he was unsure about a DOL photo. Kloepper, 179 Wn. App.

at 355.

       On appeal, the defendant argued that defense counsel was ineffective for

failing to object to this testimony, which he argued conveyed that he had a

criminal history. Kloepper, 179 Wn. App. at 355. Division Three disagreed,

characterizing the detective's reference to an I-Leads photo as "passing

information" and counsel's decision not to object as a tactical decision not to

highlight the evidence to the jury. Kloepper, 179 Wn. App. at 354, 355.

       Here, McCartha's testimony was not just "passing information." As

discussed, her testimony and her opinions were, according to the State's own

arguments, directly relevant to Drewery's knowledge—the central issue in this

case. Kloepper does state that "[t]he decision to object, or to refrain from

objecting . . . is not a basis for finding counsel ineffective." Kloepper, 179 Wn.

App. at 355. But the case Kloepper cites for that proposition acknowledges that

the failure to object may, "in egregious circumstances, on testimony central to the

State's case,. . . constitute incompetence of counsel justifying reversal."

Madison, 53 Wn. App. at 763. As discussed, counsel's failure to object here was

egregious, and McCartha's testimony was central to the State's case. Therefore,

Kloepper is not persuasive.

      The State next argues that counsel "could have also reasonably


                                         10
No. 77031-4-1/11

concluded that an objection may result in confusing jurors." Specifically, it

argues that an objection could have invited additional argument, and what

constitutes an improper opinion "is not always clear cut." This argument is not

persuasive. First, the trial court ruled on the exact testimony at issue just 20

minutes earlier, following argument from counsel. There is no reason to suspect

that the court would have entertained further argument, particularly where the

excluded testimony was not accidentally volunteered by McCartha, but instead

was deliberately repeated by the prosecutor himself in a leading question during

McCartha's direct examination, in outright violation of the court's ruling. Second,

even if the court were inclined to entertain further argument, that argument could

easily have taken place outside the presence of the jury.

       Furthermore, in accomplice liability cases, the State is required to prove

that the defendant acted with actual knowledge that he was promoting or

facilitating the crime charged. State v. Allen, 182 Wn.2d 364, 374, 341 P.3d 268

(2015). To this end, our Supreme Court has observed that the knowledge

standard can be "understandably misinterpret[ed]. . . to allow a finding of

knowledge. . . if the defendant `should have known." Allen, 182 Wn.2d at 374

(quoting State v. Shipp, 93 Wn.2d 510, 514, 610 P.2d 1322 (1980)). In an

attempt to clarify the knowledge standard, defense counsel had, just two days

before McCartha testified, proposed adding the following sentence to the pattern

instruction: "In order to find that the defendant was an accomplice in this matter,

you must find that he had actual knowledge that he was promoting or facilitating

the commission of the crime." (Emphasis added.) In other words, defense


                                        11
No. 77031-4-1/12

counsel clearly understood that the knowledge standard was subject to

misinterpretation, and that admission of McCartha's "should have known"

testimony would make juror confusion more—not less—likely. This was later

confirmed when counsel argued, before the court ultimately rejected counsel's

proposed instruction, that "[i]f it's absent. . . , the jury can read this instruction

and go with the 'should have known' inference, which is inappropriate in an

accomplice liability case." In short, it is clear from the record that avoiding juror

confusion was not counsel's tactic for failing to object to McCartha's testimony,

nor would it have been a legitimate tactic under the circumstances.

       Finally, the State argues that counsel "could have also made a strategic

decision to refrain from objecting also because in the end the testimony did not

do much to damage the defense." But this argument is completely disingenuous

because the State itself both (1) argued to introduce McCartha's testimony as

going to the "critical element" of Drewery's knowledge and (2) reemphasized

McCartha's testimony during closing. Furthermore, the State's argument is

belied by the fact that when the State indicated it planned to highlight McCartha's

testimony in closing, defense counsel strenuously objected, characterizing

McCartha's testimony as "improper." That objection would not have been

necessary if, as the State contends, counsel thought McCartha's testimony did

not do much to damage the defense. The State's argument is unpersuasive.

       Counsel's failure to object to the prosecutor's solicitation of McCartha's

"should have known" testimony cannot, under the circumstances, be explained

by any legitimate strategy or tactic. Therefore, Drewery has met his burden to


                                           12
No. 77031-4-1/13

establish deficient performance.

2. Counsel's deficient performance prejudiced Drewery

       To establish that he was prejudiced by counsel's deficient performance,

Drewery must prove "that in the absence of counsel's deficiencies, there is a

reasonable probability that the result of the proceeding would have been

different." Lui, 188 Wn.2d at 538. "Counsel's errors must be so serious as to

deprive the defendant of a fair trial, a trial whose result is reliable." Lui, 188

Wn.2d at 538-39 (internal quotation marks omitted)(quoting Harrinqton v.

Richter, 562 U.S. 86, 104, 131 S. Ct. 770, 178 L. Ed. 2d 624 (2011)). "In other

words, '[t]he likelihood of a different result must be substantial, not just

conceivable." Lui, 188 Wn.2d at 539 (alteration in original)(quoting Harrington,

562 U.S. at 112).

       Here, a substantial likelihood exists that, had defense counsel objected,

the outcome of Drewery's trial would have been different. Had counsel objected,

the objection would likely have been sustained, and McCartha's improperly

elicited testimony would have been stricken from the record. And had

McCartha's testimony been stricken from the record, the State would have been

precluded from mentioning—much less emphasizing—that testimony in closing.

But instead, the jury heard—not just once, but twice—that in McCartha's opinion,

Drewery "should have known" that something like the drive-by shooting could

have happened: first, as McCartha's final statement in her direct testimony, and

second, in the State's closing, when the prosecutor argued:

             You know a lot about the knowledge that the Defendant had
       about what he was getting himself into. You heard from his

                                          13
No. 77031-4-1/14

       girlfriend . . . already about how dangerous Malik was and that he
       had been told about that, warned about that, and that in
       [McCartha]'s opinion he should have known something like this
       could have happened.

       The jury's ability to consider McCartha's opinion prejudiced Drewery. In

accomplice liability cases such as this one, where there is no direct evidence of

the defendant's knowledge, "the trial turn[s] on whether the State produced

sufficient circumstantial evidence to allow the jury to infer. . . actual knowledge."

Allen, 182 Wn.2d at 375. To that end, the trial court, after "struggling" with

whether to accept Drewery's proposed clarification to the knowledge instruction,

ultimately rejected it and gave the pattern instruction on knowledge, which is

based on Washington's culpability statute. 11 WASHINGTON PRACTICE:

WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 10.02, at 222(4th ed. 2016)

(citing RCW 9A.08.010). Under that statute, the jury is not allowed to find

knowledge based on a finding that the defendant "'should have known," but is

allowed to infer knowledge if the defendant had information that would lead a

reasonable person in the defendant's situation to believe that the fact at issue

exists. Allen, 182 Wn.2d at 374; see also RCW 9A.08.010(1)(b)(ii).

       This distinction, as our Supreme Court has recognized, is subtle—but

critical. Allen, 182 Wn.2d at 374. And as discussed, even our Supreme Court

has recognized that jurors "could understandably misinterpret Washington's

culpability statute to allow a finding of knowledge 'if an ordinary person in the

defendant's situation would have known' the fact in question, or in other words, if

the defendant 'should have known." Allen, 182 Wn.2d it 374 (quoting Shipp, 93

Wn.2d at 514). For this reason, McCartha's opinion that Drewery "should have

                                         14
No. 77031-4-1/15

known" prejudiced Drewery. The admission of McCartha's testimony allowed the

State to argue during closing that McCartha's opinion about what Drewery should

have known was relevant to the ultimate issue of "the knowledge that [Drewery]

had about what he was getting himself into." But this argument improperly

suggested to the jury that it could find knowledge if an ordinary person in

Drewery's situation (i.e., being with Fulson, a dangerous person McCartha had

warned Drewery about) should have known that something like this (i.e., a drive-

by shooting) could happen. Given the critical distinction between what Drewery

"should have known" and what he did know, the prosecutor's improper

solicitation of McCartha's testimony and defense counsel's failure to object to it

prejudiced Drewery.

       The State contends that Drewery was not prejudiced because "there was

substantial circumstantial evidence demonstrating the defendant's knowledge of

the crime." The State then describes other circumstantial evidence that it asserts

demonstrates Drewery and his passengers intended to intimidate the occupants

of Al-Buturky's car and that after the shooting, Drewery was driving like he "was

trying to escape." It argues that "[t]his evidence was similar to the circumstantial

evidence this Court found sufficient to convict as an accomplice to drive by

shooting in Sarausad v. State," 109 Wn. App. 824, 39 P.3d 308 (2001). But in

Sarausad, there was testimony from passengers in the defendant's vehicle that

"capping'(shooting) was mentioned during the trip [to the scene of the

shooting,]" and that upon approaching, the defendant said,"Are you ready?"

Sarausad, 109 Wn. App. at 831. Furthermore, it was established in Sarausad


                                         15
No. 77031-4-1/16

that the defendant and the passengers in his car were fellow gang members and

that the targets of the shooting were members of a rival gang. Sarausad, 109

Wn. App. at 831.

       Here, by contrast, the evidence of Drewery's actual knowledge and his

relationship with his passengers is far more lacking. The only testimony about

what happened in Drewery's car in the moments leading up to the shooting was

that Drewery and his front seat passenger may have made some gestures at Al-

Buturky, which Al-Buturky and his passengers perceived as gang signs based

primarily on movies and music videos. Even if Drewery did intend to intimidate

Al-Buturky and his passengers, the instances of alleged intimidation here are

weak evidence of any actual knowledge on Drewery's part that a drive-by

shooting was forthcoming. To this end, Drewery explained that the reason he

may have gestured to Al-Buturky while stopped behind him at the stop sign was

that Al-Buturky's car was just sitting there, not moving. Furthermore, Drewery

testified that he drove erratically after the shooting because he was focused on

trying to get Fulson and his friends out of the car. He also testified that he did not

know his passengers, other than Fulson, and that testimony was not

contradicted.

       Moreover, Sarausad involved a sufficiency-of-the-evidence challenge.

Sarausad, 109 Wn. App. at 844. In that context, the court considers "'whether,

after viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond

a reasonable doubt." State v. Dreewes,         Wn.2d       , 432 P.3d 795, 800


                                         16
No. 77031-4-1/17

(2019)(internal quotation marks omitted)(quoting State v. Johnson, 188 Wn.2d

742, 762, 399 P.3d 507 (2017)). Here, on the other hand, the court's inquiry is

not whether there was sufficient evidence to justify upholding the verdict, but

whether, absent counsel's deficient performance, there is a reasonable

probability that the outcome would have been different—"a 'probability sufficient

to undermine confidence in the outcome." State v. Drath,         Wn. App. 2d

431 P.3d 1098, 1104(2018)(quoting State v. Estes, 188 Wn.2d 450, 458, 395

P.3d 1045 (2017)); cf. Allen, 182 Wn.2d at 375-76 (explaining in a prosecutorial

misconduct case that prejudice is not a matter of whether there is sufficient

evidence to justify upholding the verdict but rather whether there is a substantial

likelihood that the instances of misconduct affected the jury's verdict). Here, our

confidence in the outcome is undermined because McCartha's improperly

solicited opinion went directly to a critical factual determination that our Supreme

Court has recognized "a juror could understandably misinterpret." Allen, 182

Wn.2d at 374. Additionally, during deliberations, the jury submitted an inquiry to

the court indicating that it was struggling with what evidence it could consider in

determining Drewery's guilt.3 Drewery has established prejudice, and the State's

reliance on Sarausad and other circumstantial evidence in this case is misplaced.




       3 The juryasked, "Is our judgement [sic] based on solely prior knowledge
to the crime being committed, or does it include actions there after[?]"
                                         17
No. 77031-4-1/18

      We reverse.




WE CONCUR:




                    18
