                                                                                               Filed
                                                                                         Washington State
                                                                                         Court of Appeals
                                                                                          Division Two

                                                                                          August 27, 2019

      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
    STATE OF WASHINGTON,                                             No. 51389-7-II

                                Respondent,

         v.

    TANNER JAMY SCOTT BIRDSALL,                               UNPUBLISHED OPINION

                                Appellant.

        MELNICK, P.J. — Tanner Birdsall appeals his conviction for rape in the second degree. The

charge arose after a night in which Birdsall, his friend, and the victim, SC, drank alcohol, and then

Birdsall and his friend sexually assaulted SC.

        Birdsall argues that the trial court abused its discretion when it denied his motions for a

mistrial and for a new trial. He also contends that the prosecutor committed misconduct and that

he received ineffective assistance of counsel.

        We affirm.

                                              FACTS

        The State charged both Birdsall and Joel Krebs with rape in the second degree of SC. The

State tried Birdsall and Krebs separately.1




1
 We affirmed Krebs’s conviction. State v. Krebs, No. 49396-9-II (Wash. Ct. App. Dec. 4, 2018),
http://www.courts.wa.gov/opinions/, review denied, 193 Wn.2d 1004 (2019).
51389-7-II


I.     SC’S TESTIMONY

       In high school, SC dated Krebs. She considered Birdsall a good friend. Shortly after high

school, SC and Krebs had a contentious break up. SC then moved away, but she would often

return home to see friends and family. When seeing friends, SC would often run into Krebs, and

eventually, they became cordial.

       On one visit, SC agreed to hang out with Krebs and Birdsall. By the time SC arrived at

Birdsall’s house, Krebs and Birdsall had set up a beer pong table. They also provided Mike’s Hard

Lemonades for SC. After she had one drink, SC decided to stay the night, knowing she could sleep

on the couch. SC, Krebs, and Birdsall then began playing beer pong. At one point, the game

changed to strip beer pong.

       Later in the evening, SC walked out of the bathroom and fell, but either Krebs or Birdsall

caught her and carried her to Birdsall’s bedroom. She had limited memory at this time. However,

SC believes that she had finished her third alcoholic lemonade and started her fourth.

       When SC awoke in the morning, her whole body, including her vagina, was sore. When

SC asked Krebs and Birdsall about it, they laughed and told her that she had fallen and hit her

crotch against the corner of the couch. Their story did not make sense to SC. She asked Krebs

and Birdsall whether either had sex with her. They both denied that they had.

       When SC arrived at her mom’s home, she felt very ill and vomited until about noon. SC

began to remember bits and pieces from the previous evening.

       Fearing what may have happened, SC called her mom and asked her to come home from

work. SC and her mom decided that she should go to the hospital. By the time the nurse conducted

a sexual assault evaluation at the hospital, over 24 hours had passed since the time SC had been

drinking with Krebs and Birdsall.



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       Over time, more memories came back to SC. She remembered that, after she fell and was

taken to the bedroom, Krebs and Birdsall laid on the bed next to her. They were talking to her,

touching her, and eventually began taking her remaining clothes off. Because of her intoxication,

SC could not move or speak.

       SC remembered Birdsall having sexual intercourse with her while Krebs touched her body.

At some point, Krebs left the bedroom, and then Birdsall left. After Birdsall left, Krebs reentered

and began having sexual intercourse with SC.

       The morning after the sexual assault evaluation, SC talked to the police. After she gave

her statement, SC called Birdsall, and the police recorded the conversations. SC also confronted

Birdsall in person and recorded their conversation. The jury heard the recorded conversations.

Birdsall did not object to the admission of the tapes.

       During one conversation, SC stated that she was “more sick than [she] should have been

from just having Mike’s” and also stated that she “left [her] drink alone.” Ex. 4, audio recording,

at 8 min. through 8 min., 23 sec. In response, Birdsall asked SC whether she was suggesting that

he drugged her. SC said she did not know. Birdsall said he did not drug her.

II.    BIRDSALL’S STATEMENTS

       After being arrested, Birdsall gave an oral and written statement to the police. They are as

follows.

       When they were playing beer pong, SC asked whether Krebs and Birdsall had ever played

strip beer pong. Krebs and Birdsall said no but asked if she wanted to play. SC initially said no

but eventually agreed to play. Throughout the night, SC had fun.




                                                 3
51389-7-II


         SC eventually became too intoxicated and began falling down. As a result, Krebs carried

her to Birdsall’s bedroom so she could lay down. Birdsall got a bowl for SC in case she vomited,

which she later did. After a short while, SC sat up and said she felt fine.

         After they sat and talked for a period of time, SC and Krebs started kissing, and then

Birdsall began kissing her stomach. He took her underwear off. Birdsall eventually began having

intercourse with SC. SC did not tell Birdsall to stop. At one point, the stereo came on and played

a song that caused SC to begin crying. Birdsall asked why she was crying, and SC stated that the

song was her and Krebs’s song from when they dated. When SC began crying, Birdsall stopped

having intercourse with her. At no point in time was SC unconscious.

         Birdsall said that the morning after the incident, he told SC that they did not have sex

because Krebs initially denied it. Birdsall simply went along with Krebs. Krebs and Birdsall were

concerned about their girlfriends finding out.

III.     DRUG EVIDENCE

         Before trial, Birdsall filed a motion in limine to exclude “[e]vidence that [SC] may have

ingested prescription drugs.” Clerk’s Papers (CP) at 53. The court granted the motion. The court’s

order stated: “the State shall not introduce any evidence or make any argument related to the

assertion that . . . Birdsall introduced or provided prescription drugs to [SC]. References made in

the . . . ‘confrontation tape’ are permissible.”2 CP at 79.

         During trial, the prosecutor asked the State’s toxicologist, Lyndsey Knoy, whether she

tested SC’s “blood in this case for both alcohol and drugs.” 5 Report of Proceedings (RP) at 897.

Knoy responded that she had and that she had detected neither. The prosecutor then asked: “With

the information you just provided, if the blood was taken 24 hours after, would this be results that


2
    The “confrontation tape” is the recorded conversations SC had with Birdsall.


                                                  4
51389-7-II


you would expect to see regardless of what a BAC level would be or drugs in the system?” 5 RP

at 897. Birdsall objected, and the court sustained the objection. The prosecutor followed up: “So

were the results what you would . . . have expected based on [a 24-hour] time frame.” 5 RP at

897. Birdsall again objected, and the court sustained the objection. The prosecutor then asked:

“And if . . . bottles of alcohol were collected in this case, but they were empty, they were dry . . .

would there have been any ability for the lab to have tested those for any substance that might have

been there or anything like that?” 5 RP at 898. Knoy responded, “No. We cannot test empty

anything.” 5 RP at 898.

       Birdsall moved for a mistrial based on the prosecutor’s line of questioning. The court

denied the motion. The court stated that it had concerns with the line of questioning and would

allow Birdsall to make a post-verdict motion if he “want[ed] to research the law and make a

motion.” 5 RP at 909. However, the court did not want to grant a mistrial because it wanted to

“see what the verdict is.” 5 RP at 910.

IV.    BLOOD ALCOHOL CONTENT EVIDENCE

       Knoy testified that Widmark’s equation estimates a person’s blood alcohol content (BAC).

It relies on the person’s sex and weight, and the amount and type of alcoholic beverages consumed.

Widmark’s equation also requires using a rho factor. Knoy used a rho factor of 0.55 for SC, which

was an estimate. This estimate is not accurate for all women.

       Using Widmark’s equation, Knoy estimated SC’s BAC based the facts presented and

concluded that her BAC was between 0.20 and 0.26. Knoy estimated that SC’s BAC increased by

0.043 per drink.




                                                  5
51389-7-II


       Knoy said that during an alcoholic blackout, people around the person would not

necessarily know that the person was in an alcoholic blackout. Knoy clarified that a person would

“appear normal drunk.” 5 RP at 922.

       Birdsall’s toxicologist, David Predmore, also used Widmark’s equation to estimate SC’s

BAC. When discussing why he did not use 0.55 for SC’s rho factor, Predmore explained that

alcohol is water soluble, not fat soluble, and muscle stores water. Therefore, more muscle per

pound equates to a higher rho factor because there is a greater volume of water for the alcohol to

disperse into. Additionally, according to Predmore, a rho factor of 0.55 is only accurate for women

who tend to have more fat per pound than the average woman. Because SC had an athletic build,

Predmore used a rho factor that reflected her build. While it is not entirely clear from the record,

it appears that Predmore used approximately 0.61 as SC’s rho factor. As a result, Predmore

estimated that SC’s BAC increased by 0.040 per drink.

       Predmore discussed how Knoy’s calculations were incorrect because she did not account

for metabolism from the time someone consumed their first drink. According to Predmore, a more

accurate prediction for SC’s BAC after three Mike’s Hard Lemonades over two hours was 0.09,

and five drinks over four hours was 0.14.

V.     CLOSING ARGUMENT

       During closing argument, the prosecutor stated:

       The facts of this case are what every girl fears. What every woman fears. What
       every parents worse nightmare is [sic]. We talk to our girls about be careful how
       you dress, right. Be careful how you act, what you say. We tell our girls don’t give
       boys the wrong impression. And why do we do that? The potential juror we heard
       from the other day said it right, because there’s a double standard[].

5 RP at 973. Birdsall objected based on the prosecutor’s use of evidence outside the record. The

court sustained the objection. The prosecutor continued, and she discussed how a woman cannot



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51389-7-II


consent and does not consent to sexual intercourse when she is so drunk that she cannot walk and

when she is so drunk that she is vomiting. She next stated that “there’s a double standard, [but]

we don’t blame the victim. That’s not what we do.” 5 RP at 974.

       The prosecutor also discussed how Predmore used the wrong rho factor for calculating

SC’s BAC because he made her a heavy-set woman.

       In his closing argument, Birdsall focused on the fact that SC’s story was not credible. He

argued that SC had in fact consented to the sexual encounter and that she was not as drunk as she

now claimed. Birdsall also discussed how SC made sexual advances on him, how SC flirted with

him, how SC was “cheery” when they began kissing on the bed, and how she never denied that

she consented. 5 RP at 1001.

       On two occasions during her rebuttal, the prosecutor argued that Birdsall was “victim

blaming.” 5 RP at 1005, 1007.

VI.    MOTION FOR NEW TRIAL

       After the jury convicted Birdsall of rape in the second degree, he moved for a new trial

pursuant to CrR 7.5. He based the motion on the prosecutor’s line of questioning regarding drug

evidence. The court asked whether Birdsall interviewed any jurors about whether they thought

drugs potentially explained SC’s severe intoxication. Birdsall said he had not. The court then

reflected that the jury did not deliberate for a long period of time and stated to Birdsall:

       Well, without you talking to a juror, my impression was they were thoroughly
       convinced that he committed the alleged crime and didn’t need much time to come
       to that conclusion. . . .
                ....
                . . . I mean you would have been welcome to go and talk to any juror and
       your motion would have been much stronger.

5 RP at 1023.




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51389-7-II


       The court denied the motion, reasoning that, without evidence that the prosecutor’s line of

questioning affected a juror’s decision, Birdsall was “asking [it] to speculate that they even talked

about [drugs].” 5 RP at 1024.

VII.   SENTENCING

       The State asked for an identical sentence to the sentence Krebs had received. Birdsall

asked the court to sentence him to the low end of the standard sentencing range.

       Birdsall, his mom, and his aunt spoke on his behalf. In asking the court to give him the

lowest possible sentence, Birdsall’s mom stated that Birdsall “is a young man” who had goals and

the work ethic to achieve them. RP (Dec. 22, 2017) at 6.

       In rendering its decision, the court recognized that “[Birdsall] is young, and he can make

up his mind to change.” RP (Dec. 22, 2017) at 9. The court sentenced Birdsall to the same sentence

Krebs received, 90 months. Birdsall appeals.

                                            ANALYSIS

I.     MOTION FOR MISTRIAL

       Birdsall argues that the trial court abused its discretion when it denied his motion for a

mistrial based on the prosecutor’s line of questioning regarding drug evidence. We disagree.

       We review a trial court’s decision to deny a request for a mistrial for an abuse of discretion.

State v. Lewis, 130 Wn.2d 700, 707, 927 P.2d 235 (1996). A “court should grant a mistrial only

when the defendant has been so prejudiced that nothing short of a new trial can insure that the

defendant will be tried fairly.” Lewis, 130 Wn.2d at 707. The trial court “is best suited to judge

the prejudice of a statement.” Lewis, 130 Wn.2d at 707.

       Here, the trial court did not abuse its discretion in denying Birdsall’s motion for a mistrial

because the prosecutor’s line of questioning did not violate the motion in limine. The order



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51389-7-II


granting the motion in limine stated: “the State shall not introduce any evidence or make any

argument related to the assertion that . . . Birdsall introduced or provided prescription drugs to

[SC]. References made in the . . . ‘confrontation tape’ are permissible.” CP at 79.

       During the line of questioning Birdsall identifies as improper, the State did not introduce

evidence or make arguments related to the assertion that Birdsall provided SC with prescription

drugs. Instead, the line of inquiry addressed the lack of evidence and the evidence introduced on

the confrontation tape. Thus, the prosecutor did not violate the motion in limine.

II.    MOTION FOR NEW TRIAL

       Birdsall argues that the trial court abused its discretion when it denied his motion for a new

trial based on the prosecutor’s line of questioning regarding drug evidence. He contends that the

court denied his motion because it relied on an erroneous view of the law. We agree that the trial

court relied on an erroneous legal interpretation, but we affirm the denial of the motion because

the prosecutor did not violate the motion in limine.

       A trial court may grant a new trial “when it affirmatively appears that a substantial right of

the defendant was materially affected . . . [by m]isconduct of the prosecution.” CrR 7.5. To show

prosecutorial misconduct, the “defendant must show ‘that the prosecutor’s conduct was both

improper and prejudicial in the context of the entire record and the circumstances at trial.’” State

v. Magers, 164 Wn.2d 174, 191, 189 P.3d 126 (2008) (quoting State v. Hughes, 118 Wn. App.

713, 727, 77 P.3d 681 (2003)).

       In deciding a CrR 7.5(a)(2) motion based upon alleged prosecutorial misconduct, “the trial

court applies the same standard as an appellate court reviewing such claims.” State v. McKenzie,

157 Wn.2d 44, 52, 134 P.3d 221 (2006). That is, the trial court determines whether the defendant

has met his burden to show that the prosecutor’s comments were improper and prejudicial.



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McKenzie, 157 Wn.2d at 52. We then review the trial court’s determination for an abuse of

discretion. McKenzie, 157 Wn.2d at 51.

        A trial court abuses its discretion if its decision is manifestly unreasonable or based on

untenable grounds or for untenable reasons, or if no reasonable judge would have reached the same

conclusion. State v. Emery, 174 Wn.2d 741, 765, 278 P.3d 653 (2012); State v. Powell, 126 Wn.2d

244, 258, 893 P.2d 615 (1995). “A trial court necessarily abuses its discretion if it bases its ruling

on an erroneous view of the law.” State v. Harvill, 169 Wn.2d 254, 259, 234 P.3d 1166 (2010).

        “We may affirm the trial court’s ruling on any basis supported by the record.” State v.

Streepy, 199 Wn. App. 487, 500, 400 P.3d 339, review denied, 189 Wn.2d 1025 (2017).

        When determining whether to grant a motion for a new trial, a court cannot consider

evidence which inheres in the jury’s verdict. State v. Jackman, 113 Wn.2d 772, 777-78, 783 P.2d

580 (1989). Such evidence includes “the mental processes by which individual jurors arrived at

the verdict, the effect the evidence may have had on the jurors, and the weight particular jurors

may have given to particular evidence.” Long v. Brusco Tug & Barge, Inc., 185 Wn.2d 127, 131-

32, 368 P.3d 478 (2016).

        Here, the trial court based its decision on an erroneous legal basis. Because jurors’ mental

processes and the length of a jury’s deliberations both inhere in the jury’s verdict, a court’s decision

in granting or denying a mistrial cannot take either into account. However, it is clear that both

types of inadmissible evidence heavily influenced the court’s decision here. Therefore, the court’s

reliance on this type of evidence constituted an abuse of discretion.

        However, as discussed previously, we conclude that the prosecutor did not violate the

motion in limine. Therefore, because we can affirm the trial court’s ruling on any basis supported

by the record, we nonetheless affirm the trial court’s denial of Birdsall’s motion.



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III.   PROSECUTORIAL MISCONDUCT

       Birdsall argues that the prosecutor committed misconduct at various points throughout

trial. We disagree.

       A.      Legal Principles

       “Prosecutorial misconduct may deprive a defendant of his constitutional right to a fair

trial.” In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 703-04, 286 P.3d 673 (2012). To prevail

on a claim of prosecutorial misconduct, a defendant must “show that in the context of the record

and all of the circumstances of the trial, the prosecutor’s conduct was both improper and

prejudicial.” Glasmann, 175 Wn.2d at 704.

       We review the prosecutor’s conduct and whether prejudice resulted therefrom “by

examining that conduct in the full trial context, including the evidence presented, ‘the context of

the total argument, the issues in the case, the evidence addressed in the argument, and the

instructions given to the jury.’” State v. Monday, 171 Wn.2d 667, 675, 257 P.3d 551 (2011)

(internal quotation marks omitted) (quoting McKenzie, 157 Wn.2d at 52).

       During closing argument, a prosecutor has “wide latitude in drawing and expressing

reasonable inferences from the evidence.” State v. Hoffman, 116 Wn.2d 51, 94-95, 804 P.2d 577

(1991). But a prosecutor may not argue facts not in evidence or make arguments appealing to a

jury’s passion that prejudices the defendant. State v. Belgarde, 110 Wn.2d 504, 507-08, 755 P.2d

174 (1988); State v. Boehning, 127 Wn. App. 511, 519, 111 P.3d 899 (2005).

       In a prosecutorial misconduct claim, a defendant who fails to object to improper conduct

may be deemed to have waived the issue on appeal unless the prosecutor’s statements are so

flagrant and ill-intentioned that the resulting prejudice could not be corrected by a jury instruction.

Emery, 174 Wn.2d at 760-61. The defendant must show that (1) no curative instruction would



                                                  11
51389-7-II


have eliminated the prejudicial effect, and (2) the misconduct resulted in prejudice that had a

substantial likelihood of affecting the verdict. Emery, 174 Wn.2d at 761. The focus of this inquiry

is more on whether the resulting prejudice could have been cured, rather than the flagrant or ill-

intentioned nature of the remarks. Emery, 174 Wn.2d at 761-62.

       B.      Drugging of Victim

       Birdsall argues that the prosecutor’s line of questioning, discussed previously, violated the

motion in limine prohibiting drug evidence and constituted prosecutorial misconduct. Because we

conclude that the prosecutor did not violate the motion in limine, we disagree.

       C.      Gender Double Standard

       Birdsall argues that the prosecutor committed misconduct in her closing argument because

she encouraged the jury’s decision to reflect a referendum on gender equality by arguing that they

were “responsible for addressing the culture of double standards for men and women.” Br. of

Appellant at 33-34. Birdsall concedes that he did not continuously object but argues that the

prosecutor’s conduct was so flagrant and ill-intentioned that no curative instruction could have

erased the prejudice. We disagree.

       The prosecutor briefly discussed the double standard between genders. She then discussed

how “we don’t blame the victim.” 5 RP at 974. Based on the context of the argument as a whole,

we conclude that the prosecutor’s comment was neither improper nor prejudicial. But even if it

was improper, Birdsall cannot show how any resulting prejudice could not have been corrected by

a jury instruction. Accordingly, his claim fails.

       D.      Misrepresented Evidence

       Birdsall argues that the prosecutor committed misconduct when she misrepresented

evidence in her closing argument. Birdsall contends that the prosecutor erroneously stated that his



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expert was inaccurate because he treated SC as a heavy-set woman. We conclude that Birdsall

waived this argument.

       It appears Birdsall’s expert, Predmore, used a higher than average rho factor in his

calculations. In Predmore’s experience, women with an athletic build have a higher rho factor

than the average woman. Because SC had an athletic build, Predmore used a higher rho factor of

0.61. Accordingly, the prosecutor misstated the evidence when she stated that Birdsall’s expert

used the rho factor of a heavy-set woman. He did the opposite.

       However, because Birdsall did not object to the prosecutor’s argument, he is deemed to

have waived the issue unless he can show that no curative instruction would have eliminated the

prejudicial effect and that the misconduct resulted in prejudice which had a substantial likelihood

of affecting the verdict.

       Birdsall cannot make such a showing. The experts’ differences in rho factors led to

calculations that differed by 0.003. In fact, whether SC’s BAC increased by 0.040, as Predmore

stated, or 0.043, as Knoy stated, per alcoholic beverage, was of marginal importance because SC

testified about how she felt and how intoxicated she was both leading up to and during the time in

which she was raped. Because the prosecutor’s error likely did not affect the jury’s verdict and in

any event could have been cured by an instruction, we conclude that Birdsall waived his argument.

       E.       Cumulative Error

       Birdsall claims that the multiple instances of prosecutorial misconduct constituted

cumulative error, which requires a new trial. Because we conclude that no unwaived prosecutorial

misconduct occurred, we reject Birdsall’s argument.




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IV.    INEFFECTIVE ASSISTANCE OF COUNSEL

       Birdsall argues that he received ineffective assistance of counsel at various times

throughout trial. We disagree.

       A.      Legal Principles

       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. Strickland v.

Washington, 466 U.S. 668, 685-86, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Grier, 171

Wn.2d 17, 32, 246 P.3d 1260 (2011).

       We review claims of ineffective assistance of counsel de novo. State v. Sutherby, 165

Wn.2d 870, 883, 204 P.3d 916 (2009). To prevail on a claim of ineffective assistance of counsel,

the defendant must show both (1) that defense counsel’s representation was deficient and (2) that

the deficient representation prejudiced the defendant. Grier, 171 Wn.2d at 32-33. If either prong

is not satisfied, the defendant’s claim fails. In re Pers. Restraint of Davis, 152 Wn.2d 647, 673,

101 P.3d 1 (2004). There is a strong presumption that counsel’s representation was effective. State

v. Brett, 126 Wn.2d 136, 198, 892 P.2d 29 (1995).

       Representation is deficient if, after considering all the circumstances, the performance falls

“‘below an objective standard of reasonableness.’” Grier, 171 Wn.2d at 33 (quoting Strickland,

466 U.S. at 688). “The burden is on a defendant alleging ineffective assistance of counsel to show

deficient representation based on the record established in the proceedings below.” State v.

McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). We do not consider matters outside the

trial record. State v. Linville, 191 Wn.2d 513, 525, 423 P.3d 842 (2018). Legitimate trial strategy

or tactics cannot serve as the basis for a claim of ineffective assistance of counsel. State v. Kyllo,

166 Wn.2d 856, 863, 215 P.3d 177 (2009).



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       To show prejudice, a 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.” Kyllo, 166 Wn.2d at 862. “A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Strickland, 466 U.S. at 694.

       B.      Failing to Object During Closing Argument

       Birdsall argues that he received ineffective assistance of counsel based on his counsel’s

failure to object to the previously discussed instances of prosecutorial misconduct in the

prosecutor’s closing argument. We disagree.

       Birdsall first contends that he received ineffective assistance of counsel when his attorney

failed to object to the prosecutor’s argument in closing regarding societal double standards and

victim blaming. Because we conclude that the argument was not improper, Birdsall cannot

demonstrate deficient performance. In addition, as we already discussed, Birdsall also cannot

show prejudice.

       Birdsall next argues that he received ineffective assistance of counsel when his attorney

failed to object to the prosecutor’s mischaracterization of his expert’s calculations. We also reject

this argument because Birdsall cannot show prejudice. As discussed above, the prosecutor did

misstate the evidence introduced by Birdsall’s expert. However, the experts’ slight differences of

SC’s estimated BAC increase per alcoholic drink, based on differences in rho factors, likely had

no effect on the outcome of trial because SC testified about how intoxicated she was on the night

of the incident. Thus, whether SC’s BAC increased by 0.040 or 0.043 per alcoholic beverage was

of relatively little importance. Accordingly, Birdsall has not shown prejudice.

       Because Birdsall cannot show prejudice for either instance of alleged misconduct, his

ineffective assistance of counsel argument fails.



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       C.      Failing to Request a Reasonable Belief Jury Instruction

       Birdsall argues that he received ineffective assistance of counsel when his attorney failed

to request a reasonable belief affirmative defense jury instruction. We disagree.

       “[I]t is a defense which the defendant must prove by a preponderance of the evidence that

at the time of the offense the defendant reasonably believed that the victim was not mentally

incapacitated and/or physically helpless.” RCW 9A.44.030.

       Based on the evidence presented, we note that Birdsall would have been entitled to an

instruction based on this statutory defense if his counsel had requested it. However, to prevail on

his ineffective assistance of counsel claim, Birdsall must also show that the failure to request the

instruction constituted deficient performance which prejudiced him.

       Here, counsel’s choice to not request a reasonable belief instruction, and instead argue that

the State failed to meet its burden to prove SC was physically helpless or mentally incapacitated,

was objectively reasonable.3 See State v. Coristine, 177 Wn.2d 370, 378-79, 300 P.3d 400 (2013)

(recognizing that it can be a valid tactical decision to not assert an affirmative defense because

defenses carry with them the burden of proof). Birdsall has not shown that the record establishes

anything to the contrary. “The burden is on a defendant alleging ineffective assistance of counsel

to show deficient representation based on the record established in the proceedings below.”

McFarland, 127 Wn.2d at 335.




3
  State v. Powell, 150 Wn. App. 139, 206 P.3d 703 (2009), is distinguishable because there, the
failure to request the reasonable belief affirmative defense instruction was not objectively
reasonable.



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       Unlike in In re Personal Restraint of Hubert, 138 Wn. App. 924, 158 P.3d 1282 (2007),

there is nothing in the record showing Birdsall’s counsel’s strategic or tactical decisions. 4 See

Linville, 191 Wn.2d at 525. Because his counsel’s strategic or tactical decisions are not presented

in the record, Birdsall cannot prevail on his claim of ineffective assistance of counsel at this stage.

       D.      Failing to Argue Youth as Mitigating Factor

       Birdsall argues that because he was 19 years old on the date of the crime, under State v.

O’Dell, 183 Wn.2d 680, 358 P.3d 359 (2015), he received ineffective assistance of counsel at

sentencing when his attorney failed to argue for an exceptional downward sentence based on his

youth. We disagree.

       In O’Dell, the court reversed a defendant’s sentence because the trial court erroneously

believed that it could not consider youth as a mitigating factor when the defendant was 18 years

old at the time of the crime. 183 Wn.2d at 696-97. Here, however, the court did not believe that

it was precluded from using Birdsall’s youth to impose an exceptional downward sentence.

Therefore, the issue is different than that presented in O’Dell.

       Instead, the issue here is more analogous to the issue presented in State v. Hernandez-

Hernandez, 104 Wn. App. 263, 15 P.3d 719 (2001). In Hernandez-Hernandez, the court sentenced

the defendant to a standard range sentence, and on appeal, the defendant made a similar argument

to Birdsall’s argument here.      Specifically, the defendant argued that his trial counsel was

ineffective for failing to request an exceptional downward sentence based on applicable case law.

Hernandez-Hernandez, 104 Wn. App. at 265-66.


4
  In contrast, counsel in Hubert stated he did not request a reasonable belief instruction because
“he ‘was not familiar’ with the statutory defense until [the defendant’s] appellate counsel brought
it to his attention.” 138 Wn. App. at 929. The failure to investigate statutory defenses constitutes
deficient representation. Hubert, 138 Wn. App. at 929-30. Here, there is nothing to show
Birdsall’s counsel was unaware of the reasonable belief affirmative defense.


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       The court rejected the argument and concluded that the defendant could not prove the

prejudice prong of his ineffective assistance of counsel claim. Hernandez-Hernandez, 104 Wn.

App. at 266. The court reasoned that, even without his counsel’s argument, the trial court had the

discretion to impose an exceptional sentence downward. Hernandez-Hernandez, 104 Wn. App. at

266. Thus, it was “not convinced the outcome would have been different had defense counsel

argued [the relevant case law] to support an exceptional sentence.” Hernandez-Hernandez, 104

Wn. App. at 266.

       The trial court had similar discretion here. In re Pers. Restraint of Light-Roth, 191 Wn.2d

328, 336, 422 P.3d 444 (2018) (“[The Sentencing Reform Act of 1981] has always provided the

opportunity to raise youth for the purpose of requesting an exceptional sentence downward, and

mitigation based on youth is within the trial court’s discretion.”). Birdsall’s counsel argued that

he should receive a sentence at the low end of the standard range. And, in rendering its decision,

the court specifically acknowledged Birdsall’s youth. It nonetheless decided to impose a midrange

sentence because it felt Birdsall and Krebs should receive equal sentences.

       There is a possibility that the trial court would have given Birdsall a different sentence if

his attorney had argued that he should receive an exceptional sentence downward under O’Dell.

However, “mere possibilities do not establish a prima facie showing of actual and substantial

prejudice.” In re Pers. Restraint of Meippen, 193 Wn.2d. 310, 317, 440 P.3d 978 (2019).

Accordingly Birdsall has failed to prove he was prejudiced, and therefore, his ineffective assistance

of counsel argument fails.




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       We affirm.

       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, P.J.

We concur:




       Sutton, J.




       Glasgow, J.




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