                                                                            FILED 

                                                                         JUNE 25, 2015 

                                                                 In the Office of the Clerk of Court 

                                                               WA State Court of Appeals, Division III 





            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 




STATE OF WASHINGTON,                         )
                                             )         No. 33009-5-111
                    Respondent,              )
                                             )
       v.                                    )
                                             )
REBECCA LOUISE PRESLER,                      )         UNPUBLISHED OPINION
                                             )
                    Appellant.               )

      FEARING, J. - Rebecca Presler appeals her conviction for possession of a

controlled substance, methamphetamine. She argues ineffective assistance of her trial

counsel, who failed to seek suppression of drug test results. Because Presler cannot show

that the trial court likely would have suppressed the evidence, we affinn her conviction.

                                         FACTS

      Rebecca Presler, while six months pregnant, lived with her boyfriend Mikah

Richins and her two young children. An acquaintance saw Presler and Richins using

methamphetamine, grew concerned for the children's welfare, and reported Presler and

Richins to Department of Social and Health Services Child Protective Services (CPS).

CPS investigated, placed the children with Presler's mother, and required Presler to

receive treatment for controlled substance abuse. CPS later discovered that Rebecca
No. 33009-5-II1
State v. Presler


Presler disregarded her substance abuse treatment, and CPS reported Presler to the City

of Poulsbo Police Department. Police obtained a warrant to search Presler's home.

       Poulsbo Police Officer John Halsted and other law enforcement officers executed

the warrant and searched Rebecca Presler's residence. A CPS case manager

accompanied the officers. Presler and Mikah Richins occupied the home during the

search. Police located methamphetamine and drug paraphernalia in the common areas of

the home. Presler admitted to police she had touched the paraphernalia months earlier,

but she denied ownership of the drugs.

       Later on the day of the residence search, Rebecca Presler visited the hospital for a

drug test. Presler tested positive for methamphetamine. Nicole Reed of CPS reported the

result of this drug test to Officer John Halsted, who, in turn, notified a prosecuting

attorney.

                                       PROCEDURE

       The State of Washington charged Rebecca Presler with one count of possession of

a controlled substance. The State also charged Mikah Richins, but Richins pled guilty

before Presler's trial.

       The trial court judge who presided over Rebecca Presler's criminal trial also knew

of the ongoing dependency action for Presler's children. The trial judge knew that the

dependency action required Presler to submit to urinary analysis. The parties disputed

whether urinalyses results could be submitted as evidence at trial.

                                                 2

No. 33009-5-III
State v. jOresler


       In the meantime, the dependency juvenile court barred CPS from further

communicating the urinalyses results to the Kitsap County Prosecutor's Office. The

juvenile court noted that, in dependency cases, RCW 13.50.100 authorizes the release of

confidential information in limited circumstances. The juvenile court ruled, nonetheless,

that the statute did not authorize CPS to release Presler's urinalyses results to the

prosecutor's office, and the court enjoined further release.

       During pretrial motions, the trial court observed that the State had not sought to

introduce evidence of urinalysis results from Rebecca Presler's drug tests taken after the

State of Washington filed criminal charges against her. In response, the State mentioned

that the urinalyses results from the test conducted the day of the residence search might

be relevant. The trial court reserved any ruling on the admissibility of the one drug test

until the State sought to introduce the results as evidence. Defense counsel neither

objected nor moved to suppress the hospital drug test.

       During trial, Rebecca Presler several times registered unhappiness with her

defense counsel. Presler stated that her preferred defense involved testifYing herself that

Mikah Richins was sole owner of the drugs or calling Richins to testifY that he was the

sole owner of the drugs.

       The trial court informed Rebecca Presler of her right to testifY, her right to call

Richins as a witness, and the potential consequences of each. The court warned Presler

that she could be found guilty even if Richins admitted possession. The court wished

                                                  3

No. 33009-5-111
State v. Presler


Presler to understand that, while testimony of Richins' ownership and possession was

relevant, testifying herself or Mikah Richins' testifying would allow the State to impeach

or rebut the testimony. The impeachment could include the results of the drug test

conducted on the day of the home search. Defense counsel also cautioned Presler of this

danger. Ultimately, Presler chose not to testify or call Mikah Richins.

       During closing arguments, a member of the gallery interjected that Mikah Richins

had already "pled guilty to all these charges." Report of Proceedings (RP) at 244. The

court instructed the jury to disregard the statement. The jury found Rebecca Presler

guilty as charged of possession of a controlled substance, specifically methamphetamine.

                                 LAW AND ANALYSIS

       Rebecca Presler contends that she did not receive effective assistance of counsel

because her trial counsel failed to move to suppress the hospital drug test that DSHS

communicated to law enforcement. Presler reasons that, if the trial court denied the

motion, the trial would have proceeded as it did. But, if the trial court granted the

motion, she could have challenged the State's claim against her of constructive

possession. If the trial court granted the motion to suppress, she could have testified to

Mikah Richins' sole possession of the methamphetamine and drug paraphernalia or

called Richins to testify to his sole possession without fear of the State impeaching the

testimony with evidence of her prior drug use.




                                                 4

No. 33009-5-III
State v. Presler


       Rebecca Presler raises this argument for the first time on appeal, which RAP

2.5(a) would generally bar as unpreserved. However, under RAP 2.5(a)(3), a "manifest

error affecting a constitutional right" may be addressed for the first time on appeal. State

v. McFarland, 127 Wn.2d 322, 333,899 P.2d 1251 (1995). A claim of ineffective

assistance of counsel can implicate a manifest error affecting a constitutional right.

       Rebecca Presler argues her defense counsel was deficient when he failed to move

to suppress the hospital drug test. The Sixth Amendment to the United States

Constitution guarantees the right to legal counsel in criminal trials. The Washington

Constitution also grants an accused, in a criminal prosecution, the right to appear by

counsel. CONST. art. I, § 22. Washington courts have not extended the protections of the

state constitution beyond the protections afforded by the United States Constitution.

Instead, state decisions follow the teachings and rules announced in the United States

Supreme Court's seminal decision of Strickland v. Washington, 466 U.S. 668, 104 S. Ct.

2052,801. Ed. 2d 674 (1984). An accused is entitled to more than a lawyer who sits

next to him in court proceedings. In order to effectuate the purpose behind the

constitutional protection, the accused is entitled to effective assistance of counsel.

Strickland v. Washington, 466 U.S. at 686.

       Under Strickland, courts apply a two prong test: whether (1) counsel's

performance failed to meet a standard of reasonableness and (2) actual prejudice resulted

from counsel's failures. Strickland, 466 U.S. at 690-92. To prevail on her claim, a

                                                  5

No. 33009-5-111
State v. Presler


defendant must satisfY both prongs of the ineffective assistance of counsel test. State v.

Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996). If one prong of the test fails, we

need not address the remaining prong. Hendrickson, 129 Wn.2d at 78.

       To prevail on an ineffective assistance of counsel claim, the defendant must show

that, after considering all the circumstances, counsel's performance fell below an

objective standard of reasonableness. State v. McFarland, 127 Wn.2d at 334-35 (1995).

Such a standard echoes the standard of care applied in a civil legal malpractice suit.

Hizey v. Carpenter, 119 Wn.2d 251, 261, 830 P.2d 646 (1992). A claim that trial counsel

was ineffective does not survive if trial counsel's conduct can be characterized as

legitimate trial strategy or tactics. State v. Grier, 171 Wn.2d 17, 33-34,246 P.3d 1260

(2011); Hendrickson, 129 Wn.2d at 77-78.

       We give great deference to trial counsel's performance and begin our analysis with

a strong presumption that counsel was effective. Strickland, 466 U.S. at 689; McFarland,

127 Wn.2d at 335; Grier, 171 Wn.2d at 33. To rebut this presumption, a defendant must

demonstrate trial counsel's conduct could not be characterized as a legitimate trial

strategy or tactic. Grier, 171 Wn.2d at 33; Hendrickson, 129 Wn.2d at 77-78. The

relevant question is not whether counsel's choices were strategic, but whether they were

reasonable. Roe v. Flores-Ortega, 528 U.S. 470, 481, 120 S. Ct. 1029, 145 L. Ed. 2d 985

(2000).




                                                 6

No. 33009-5-III
State v. Presler


       To satisfY the prejudice prong, the defendant must establish that 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). A reasonable probability is a probability sufficient to undermine confidence

in the outcome. Strickland, 466 U.S. at 694; State v. Thomas, 109 Wn.2d 222,226, 743

P .2d 816 (1987). In assessing prejudice, a court should presume, absent a challenge to

the judgment on grounds of evidentiary insufficiency, that the judge or jury acted

according to the law. Strickland, 466 U.S. at 694-95.

       We decline to address whether Rebecca Presler's trial counsel violated the

standard of care, because we can decide the appeal based on the failure to show

prejudice. In order 'to establish actual prejudice, Presler must show that the trial court

likely would have granted a motion to suppress the drug test results. State v. Hamilton,

179 Wn. App. 870, 882, 320 P.3d 142 (2014). Rebecca Presler argues the trial court

would have granted a motion to suppress because no authority of law justified the

disclosure of Presler's private health information by CPS to law enforcement. We

conclude otherwise.

       Article I, section 7 of the Washington State Constitution provides, "No person

shall be disturbed in his private affairs, or his home invaded, without authority of law."

Washington recognizes a privacy interest in health care information. RCW 70.02.005( 1).




                                                  7

No. 33009-5-II1
State v. Presler


Washington further recognizes a common law cause of action for invasion of privacy.

Fisher v. Dep't ofHealth, 125 Wn. App. 869, 878-79, 106 P.3d 836 (2005).

       Rebecca Presler ruminates three possible arguments that the State might forward

to justify CPS' reporting the methamphetamine use to law enforcement. Presler then

contends that none of the three arguments suffice. Presler fails to recognize a fourth

ground, RCW 26.44.040, that could justify DSHS' report to law enforcement.

       The State of Washington highlights RCW 26.44.030, which casts DSHS

employees as mandatory reporters to law enforcement. RCW 26.44.030 provides:

              When any practitioner, ... social service counselor, ... or ...
       employee of the department ... has reasonable cause to believe that a child
       has suffered abuse or neglect, he or she shall report such incident, or cause
       a report to be made, to the proper law enforcement agency or to the
       department as provided in RCW 26.44.040.

RCW 26.44.030(1)(a) (emphasis added). "Social service counselor" means anyone

engaged in a professional capacity ... promoting the health, welfare, support, or

education of children, or providing social services to adults or families, ... as an

employee or agent of any public ... organization or institution." RCW 26.44.020(24).

Under RCW 26.44.020(16), "Negligent treatment or maltreatment" is defined to include

"conduct prohibited under RCW 9A.42.100," which in tum criminalizes "knowingly or

intentionally permit[ting] a dependent child ... to be exposed to, ingest, inhale, or have

contact with methamphetamine." "When considering whether a clear and present danger

exists [to a child's health, welfare, or safety], evidence of a parent's substance abuse as a

                                                  8

No. 33009-5-111
State v. Presler


contributing factor to negligent treatment or maltreatment shall be given great weight.'~

RCW 26.44.020(16).

       RCW 26.44.030 required CPS to report the drug test result to law enforcement.

This mandatory reporting trumps psychologist-client privilege. State v. Ackerman, 90

Wn. App. 477,486,953 P.2d 816 (1998). Rebecca Presler does not argue an exception to

the mandatory reporting statute applies. As RCW 26.44.030 mandates the

communication Presler now challenges~ from CPS to law enforcement~ the trial court

would likely not have granted a motion to suppress.

       Rebecca Presler fails to meet her burden of showing ineffective assistance.

                                         CONCLUSION

       We deny Rebecca Presler~s claim of ineffective assistance of counsel. We affirm

her conviction of possession of a controlled substance.

       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.




WE CONCUR: 





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