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          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



STATE OF WASHINGTON,                                NO. 71842-8-


       Respondent,
                                                    DIVISION ONE
               v.



TYLER M. FARRAR-BRECKENRIDGE,                       UNPUBLISHED OPINION


      Appellant.                                    FILED: July 20, 2015



       Lau, J. —Tyler Farrar-Breckenridge appeals his jury trial convictions on three

counts of rape of a child in the third degree. The charges involved separate incidents

with two different victims. Farrar-Breckenridge argues his attorney's failure to move to

sever the counts constitutes ineffective assistance of counsel. But because (1) the

record shows defense counsel's decision to forego severance was a reasonable

strategic decision, and (2) Farrar-Breckenridge cannot show either that the trial court

would have granted a severance motion or that the outcome of separate trials would

have been different, his ineffective assistance of counsel claim fails. We affirm the

judgment and sentence.
No. 71842-8-1/2



                                   FACTS


      A jury convicted Farrar-Breckenridge on three counts of rape of a child in the

third degree involving B.B. and C.L.

       Incident Involving B.B.

      The incident with B.B. occurred during the summer of 2011 in Granite Falls,

Washington. Farrar-Breckenridge lived at his mother's house, and teenagers frequently

held social gatherings there. In late July or early August, B.B. went to Farrar-

Breckenridge's house with a group of friends. The group included B.B., B.B.'s sister,

C.L., C.L.'s brother, and Farrar-Breckenridge and his brother. At the time, Farrar-

Breckenridge was 19 (born December 1991), and B.B. was 14 (born April 1997).

      The group decided to spend the night at Farrar-Breckenridge's house. B.B.

could not find a place to sleep downstairs with everyone else, so she went upstairs to

sleep in Farrar-Breckenridge's room. B.B. testified that she got into Farrar-

Breckenridge's bed and then he forced her to engage in oral and penile-vaginal sex.

B.B. also testified that she remembered crying, telling Farrar-Breckenridge to stop, and

pushing him away. At some point, she asked to use the bathroom and ran downstairs.

B.B. tried to wake up some of her friends to tell them what happened. The witnesses

denied remembering that B.B. tried to wake them up. B.B. eventually left the house in

the early morning.

       B.B. reported the incident to her counselor over a year later in the fall of 2012.

The counselor reported the disclosure to police.




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No. 71842-8-1/3



       Incident Involving C.L.

       On November 14, 2012, 15-year-old C.L. had been drinking at home when she

decided to log onto Facebook after 1:00 am. Farrar-Breckenridge sent C.L. a message,

asking her if she wanted to watch a movie with him. C.L. declined, stating she planned

to go to sleep instead. C.L. snuck out of her house and went to Farrar-Breckenridge's

house. C.L. testified that she played beer pong with Farrar-Breckenridge until she

eventually threw up. C.L. and Farrar-Breckenridge began kissing and had penile-

vaginal intercourse on the living room couch. Afterwards, they watched TV for a few

minutes and then went upstairs to Farrar-Breckenridge's bedroom, where they had

intercourse again, including anal intercourse. C.L. testified that she never told him to

stop but also that she "didn't know what to do." Report of Proceedings (RP) (February

19, 2014) at 57. At one point, she tried to pull away, but Farrar-Breckenridge stopped

her.


       C.L. did not tell anyone what happened for about two weeks. She eventually told

her older cousin about it on Thanksgiving. In February 2013, C.L.'s parents learned

about the incident and reported it to police.

       In December 2013, Farrar-Breckenridge was charged with two counts of third

degree rape of a child involving C.L. and one count of third degree rape of a child

involving B.B. under RCW 9A.44.079.1 Defense counsel never moved to sever any


       1 "A person is guilty of rape of a child in the third degree when the person has
sexual intercourse with another who is at least fourteen years old but less than sixteen
years old and not married to the perpetrator and the perpetrator is at least forty-eight
months older than the victim." RCW 9A.44.079(1). The parties did not dispute the ages
of the victims or the defendant. The only issue at trial was whether sexual intercourse
occurred.

                                           -3-
No. 71842-8-1/4



counts. A jury convicted Farrar-Breckenridge on all three counts as charged. The court

imposed a sentence of 60 months.

                                        ANALYSIS


       Farrar-Breckenridge argues for reversal of the convictions on grounds he was

denied his constitutional right to effective assistance of counsel. He contends that by

failing to move to sever three counts of child rape in the third degree, his attorney's

performance was deficient and the outcome of the trial would have been different but for

this deficiency. We conclude that Farrar-Breckenridge failed to show that his attorney's

performance was either deficient or prejudicial. First, the record indicates that defense

counsel's decision to forego severance was a reasonable tactical decision. Indeed, the

record shows that the defense theory of the case was essentially that the two victims—

B.B. and C.L., who were close friends—colluded to manufacture the allegations against

Farrar-Breckenridge. Second, Farrar-Breckenridge cannot demonstrate prejudice

because it is unlikely the trial court would have granted a severance motion.

       I.     Standard of Review

       Effective assistance of counsel is guaranteed by both the federal and state

constitutions. In re Pers. Restraint of Woods, 154 Wn.2d 400, 420, 114 P.3d 607

(2005). This court reviews claims for ineffective assistance of counsel de novo. State

v. Sutherbv, 165 Wn.2d 870, 883, 204 P.3d 916 (2009). "To prevail on a claim of

ineffective assistance of counsel, counsel's representation must have been deficient,

and the deficient representation must have prejudiced the defendant." State v. Aho,

137 Wn.2d 736, 745, 975 P.2d 512 (1999); Strickland v. Washington, 466 U.S. 668,

687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). "To establish ineffective representation,

                                          -4-
No. 71842-8-1/5



the defendant must show that counsel's performance fell below an objective standard of

reasonableness. To establish prejudice, a defendant must show that but for counsel's

performance, the result would have been different." State v. McNeal, 145 Wn.2d 352,

362, 37 P.3d 280 (2002) (citations omitted). Failure to establish either prong of the test

is fatal to an ineffective assistance of counsel claim. Strickland, 466 U.S. at 700.

       II.    Deficient Performance

       Because defense counsel relied on a plausible conspiracy theory between the

two victims, foregoing severance was a reasonable strategic decision that advanced the

defense's strategy. As such, Farrar-Breckenridge was not deprived of effective

assistance of counsel.

       Scrutiny of counsel's performance under the deficiency prong is extremely

deferential. A defendant asserting ineffective assistance of counsel must overcome a

strong presumption that counsel's performance was reasonable. State v. Grier, 171

Wn.2d 17, 33, 246 P.3d 1260 (2011). Accordingly, Farrar-Breckenridge "must show

there was no legitimate strategic or tactical reason for counsel's action." Sutherbv, 165

Wn.2d at 883.

       Here, the record shows that throughout the trial, defense counsel advanced the

theory that B.B. and C.L. manufactured the rape allegations against Farrar-

Breckenridge as revenge for denying B.B.'s sexual advances. This theory afforded the

defense a basis to argue motives and fabrication.

       For example, in his motions in limine, defense counsel suggested that the rape

allegations were part of a coordinated plan to attack his client:



                                           -5-
No. 71842-8-1/6



               After C.L. disclosed her alleged rape to her mother, [C.L.'s mother]
      went on a witch-hunt for all of the girls in Granite Falls who she believed
      were raped by Tyler. B.B. was mentioned as a possible candidate to
      bolster her daughter's allegations and [C.L.'s mother] brought B.B. to the
      Granite Falls police department.

Clerk's Papers (CP) at 164. Just before trial, defense counsel alerted the trial court that

he planned to open the door to evidence of B.B.'s disclosure to C.L.:

              When we [the defense] talked to [C.L.], she stated that [B.B.] told
      her something to the effect of, [s]he told me Tyler tried to sleep with her or
      tried to touch her and that she tried to push him off.
              And then I asked [C.L.] specifically, Did [B.B.] say they had sex?
      And [C.L.] said no.

             I expected . . . that [the State] would be asking [B.B.] some
      questions about her disclosure and what had happened that day with
      Tyler.
             I am essentially volunteering that I'm going to open the door as it
      relates to her disclosure to [C.L.].

               I think the Court can see my strategy behind that, why I'm doing
       that.


RP (February 19, 2014) at 5-6 (emphasis added). Defense counsel expounded on this

theory during closing argument:

                Why are they doing this? . . . Why would they lie? I don't know ....
       Here's my hypothesis. Tyler's account of what happened that night with
       [B.B.] is actually consistent with everybody who testified except [B.B.]. So
       if [B.B.] went up to his room and wanted to sleep there and he said, "No, I
       don't want you there. I just got done having sex with your sister." Kicks
       her out. He said she was upset. She was very upset. She was mad.
       She's mad at Tyler.... [I]s it plausible to think that [B.B.] would be upset
       that the man who continues to sleep with her sister rejected her? I don't
       know. I wasn't a teenage girl. The lie gets little traction. She says she
       tells her sister.... Her story is not getting traction with the person who is
       most likely to believe her, her sister. She tells her best friend, [C.L.], she
       doesn't remember when. They do everything together, they share secrets
       together, they spend time together. They get drunk together, they sneak
       out of houses. Who can hold Tyler accountable? . . . Look at the timing of
       these allegations. Look at the timing of the disclosure. [C.L.] alleges this
       happened on November 14th. What day did [B.B. disclose the details of
No. 71842-8-1/7



       her rape]? November 30th, two weeks afterwards. Three or four days
       after the Thanksgiving that [C.L.] disclosed to [B.B.]. Within seven days,
       within a week, these disclosures are out. It could be coincidence and it
       could not. I don't know. I don't know their motive .... I'm not Perry
       Mason. I'm not Matlock. I'm not going to get them on the stand and break
       them down until they finally weepingly confess to a lie . . . That's not how
       this process works.

RP (February 24, 2014) at 167-69. Defense counsel continued, assuring the jury that

even if they did not believe his hypothesis, they could still return a not guilty verdict

because the victims' testimony was insufficient on its own:

               Even if you disagree with my theory and you think it's not helpful,
       that I'm full of garbage or my theory is at least full of garbage, you can still
       find Tyler not guilty. And the way you do that is because the State has not
       met its burden of proof. There is not enough evidence to prove that this
       young man raped those two young girls.

             So what are the facts? Two girls, best friends, who do everything
       together say they were raped by the same man and they're the same
       amount of proof, none. Just their word. That is all.

RP (February 24, 2014) at 170-76. Defense counsel made the theory clear during

closing argument: B.B. wanted revenge against Farrar-Breckenridge for spurning her

sexual advances, so she and her best friend, C.L., manufactured false rapes allegations

and coincidentally disclosed those allegations within a week of each other.

       This conspiracy theory required comparing the two victims' narratives alongside

one another in the same trial so as to highlight the suspicious nature of the

"coincidence[s]" defense counsel relied on in closing argument. Because the record

demonstrates that defense counsel rejected separate trials in furtherance of this

strategy, Farrar-Breckenridge has failed to overcome the strong presumption that his

attorney's decision was tactical. See Sutherbv, 165 Wn.2d at 883.
No. 71842-8-1/8



       Farrar-Breckenridge primarily relies on Sutherbv. There, our Supreme Court

held that counsel was ineffective when he failed to move for severance of child

pornography charges from child molestation charges. Sutherbv, 165 Wn.2d at 884.

Farrar-Breckenridge argues that, as in Sutherbv, there was no possible advantage in

holding a single trial on all three counts of rape of a child in the third degree because

"the evidence of the unrelated acts would not have been admissible at separate trials."

Br. of Appellant, 15. Indeed, the Sutherbv court noted that "[t]he State's argument

suggesting a tactical choice presupposes that evidence of the possession of child

pornography would have been allowed in any separate trial on the child rape and

molestation charges, but. . . this is a debatable premise." Sutherbv, 165 Wn.2d at 884.

       But a joint trial on counts that could be severed does not necessarily lack any

strategic advantage simply because some evidence would be inadmissible at separate

trials. Although that may be a factor, the basis of the court's holding in Sutherbv is that

defense counsel was deficient when he failed to move for severance after the State

indicated that it planned to use the child pornography evidence to show predisposition

for molestation:


              There is no indication of any possible advantage to the defendant in
       having a joint trial on all charges, given the State's announced intent to
       use the pornography counts to show Sutherby's predisposition to molest
       children. Even the trial judge appeared to expect a severance motion
       because he asked at a pretrial hearing if severance was a possibility. We
       hold that counsel's failure to move for severance meets the deficiency
       prong.

Sutherbv, 165 Wn.2d at 884. Because of the highly prejudicial nature of the charges in

Sutherbv and the State's announced intent to exploit that prejudice, there was no

possible advantage to a joint trial. But, here, the record shows there was a tactical

                                          -8-
No. 71842-8-1/9



advantage to a joint trial and defense counsel based his primary trial strategy on that

advantage. Further, unlike in Sutherbv, there is no indication that the State used any

one count to improperly influence the jury's decision on another count. Under these

circumstances, defense counsel's performance was not deficient.

       III.   Prejudice

       Farrar-Breckenridge's claim also fails under the prejudice prong. To demonstrate

prejudice, Farrar-Breckenridge must show (1) a severance motion would likely have

been granted, and (2) if severance had been granted, there is a reasonable probability

the jury would not have found him guilty beyond a reasonable doubt. Sutherbv, 165

Wn.2d at 884. We conclude that he can show neither.


                  A. Whether a severance motion would have been granted

       Multiple offenses may be joined when they are "of the same or similar character,

even if not part of a single scheme or plan." CR 4.3(a)(1). But joining multiple offenses

may prejudice a defendant "if use of a single trial invites the jury to cumulate evidence

to find guilt or infer a criminal disposition." State v. Russell, 125 Wn.2d 24, 62-63, 882

P.2d 747 (1994). To determine whether joinder results in prejudice to a defendant, a

trial court must consider "(1) the strength of the State's evidence on each count; (2) the

clarity of defenses as to each count; (3) court instructions to the jury to consider each

count separately; and (4) the admissibility of evidence of the other charges even if not

joined for trial." Russell, 125 Wn.2d at 63. Further, any residual prejudice must be

weighed against the need for judicial economy. State v. Kalakoskv, 121 Wn.2d 525,

539, 852 P.2d 1064 (1993). We conclude it is unlikely a severance motion would have

been granted.

                                          -9-
No. 71842-8-1/10



                   1. The strength of the State's evidence on each count

       For this factor, the court need not consider the overall strength of the State's

case. Rather, the question is whether the strength of the State's case on each count

was similar. See Russell, 125 Wn.2d at 63. "When one case is remarkably stronger

than the other, severance is proper." State v. MacDonald, 122 Wn. App. 804, 815, 95

P.3d 1248(2004).

       Here, the State presented similar cases on each count such that neither case

was noticeably stronger than the other. The victims' testimony served as the primary

evidence for each count. Both C.L. and B.B. testified to their experiences, and Farrar-

Breckenridge testified disputing their accounts. No physical evidence supported either

victim's testimony. No eyewitnesses corroborated either victim's account of what

happened. Therefore, because the strength of the State's case was similar on each

count, this factor weighs in favor of joinder.

                   2. The clarity of the defenses as to each count

       This factor also weighed in favor of joinder because Farrar-Breckenridge's

defense to each count was the same. "The likelihood that joinder will cause a jury to be

confused as to the accused's defenses is very small where the defense is identical on

each charge." Russell, 125 Wn.2d at 64. Farrar-Breckenridge concedes this factor

because he presented identical defenses.

                   3. The court's instructions to the jury

       This factor weighs in favor of joinder because the trial court instructed the jury to

consider each count separately. Jury instruction 3 provides:



                                            -10-
No. 71842-8-1/11



               A separate crime is charged in each count. You must decide each
               count separately. Your verdict on one count should not control your
               verdict on any other count.

CP at 99. This instruction adequately directed the jury to consider each count

separately, and we presume that the jury followed the court's instructions. State v.

Montgomery, 163 Wn.2d 577, 596, 183 P.3d 267 (2008) ("we should presume the jury

followed the court's instructions absent evidence to the contrary.")

       Farrar-Breckenridge argues that despite this instruction, he was nevertheless

prejudiced because the trial court failed to instruct the jury that evidence of one crime

could not be used to decide guilt for the other crime. He again relies on Sutherbv,

where the court found prejudice even though the trial court provided an identical

instruction to the one given in this case. Sutherbv, 165 Wn.2d at 885-86. But the court

in Sutherbv did not hold that the trial court's failure to include a limiting instruction

prejudiced Sutherby. Rather, the court concluded that Sutherby was prejudiced by the

State's improper argument despite the trial court's adequate instructions:

             Third, though the jury was instructed to decide each count
       separately, the State consistently argued that the presence of child
       pornography on Sutherby's computers proved he sexually abused his
       granddaughter, stating it "shows motive."

Sutherbv, 165 Wn.2d at 885. Sutherbv does not support the proposition that the lack of

an additional limiting instruction is prejudicial.

       Further, we note that Farrar-Breckenridge never requested the instruction he now

contends was necessary to avoid prejudice. In Russell, the court concluded the trial

court did not err when it denied a motion to sever under similar circumstances:

               The third factor to consider is whether the court properly instructed
       the jury to consider each count separately. The defense now claims that

                                             -11-
No. 71842-8-1/12



       the trial court should have instructed the jury to "decide separately what
       the evidence in the case shows about the crime." See United States v.
       Johnson, 820 F.2d 1065, 1071 (9th Cir. 1987). Since the defense never
       proposed such an instruction, however, and since the instruction it did
       propose is both the one that the trial court gave and a correct statement of
       the law, we find no error.

Russell, 125 Wn.2d at 66. Therefore, given the trial court's adequate instructions and

Farrar-Breckenridge's failure to propose additional instructions, we cannot say the trial

court would have granted a motion to sever.

                 4. The admissibility of other evidence if not joined

       Farrar-Breckenridge primarily argues that severance would have been granted

because the evidence of each count would be inadmissible in separate trials, and a

single trial with all the evidence prejudiced the outcome.

       But "[t]he fact that separate counts would not be cross admissible in separate

proceedings does not necessarily represent a sufficient ground to sever as a matter of

law." Kalakosky, 121 Wn.2d at 538. "Our primary concern is whether the jury can

reasonably be expected to 'compartmentalize the evidence' so that evidence of one

crime does not taint the jury's consideration of another crime." State v. Bythrow, 114

Wn.2d 713, 721, 790 P.2d 154 (1990) (quoting Johnson, 820 F.2d at 1071). In

Kalakosky, the court held that the trial court did not abuse its discretion when it denied a

motion to sever five separate counts of rape even though much of the evidence of the

rapes would have been inadmissible in separate trials on each count. Kalakosky, 121

Wn.2d 536-38. The court concluded "it was not a particularly complicated task to keep

the testimony and evidence of the five crimes separate" because each victim "described

quite a different episode even though there was much in the rapist's methods that was


                                          -12-
No. 71842-8-1/13



the same." Kalakosky, 121 Wn.2d 537. Further, the trial court instructed the jury to

consider each count separately. Kalakosky, 121 Wn.2d at 538.

       Like in Kalakosky, the jury here could compartmentalize the different alleged

acts. Both victims testified, describing different sexual acts that occurred almost a year

apart. And, as mentioned above, the jury was instructed to consider each count

separately. Under these circumstances, we conclude that the potential inadmissibility of

some evidence at separate trials did not prevent joinder.

                   5. Judicial economy

       Finally, we note that judicial economy considerations supported joinder here.

See, e.g., Kalakosky, 121 Wn.2d at 537 (judicial economy may be a factor when

considering whether to sever separate counts).

       Because Farrar-Breckenridge and both victims socialized in the same circle of

friends, many of the witnesses would likely have been required to testify at both trials,

had the counts been severed. For example, C.L. and B.B. would have testified at both

trials because they disclosed to each other and C.L. was at Farrar-Breckenridge's

house the night B.B. was raped. Similarly, Farrar-Breckenridge's brother would

probably have testified in both trials because he was also present at the house the night

B.B. was raped and C.L. disclosed to him. C.L.'s mother also would have testified at

both trials given her relationship to both victims. Given the other factors above, the

need for judicial economy outweighed the relatively low risk of prejudice to Farrar-

Breckenridge.

       Although the trial court had the discretion to grant severance, we conclude the

above factors, taken together, weigh in favor of joinder. Farrar-Breckenridge has failed

                                          -13-
No. 71842-8-1/14



to show a likelihood that the trial court would have granted a severance motion under

the circumstances present here.

                   B. Whether the outcome of separate trials would have been different

      Even if the trial court had granted severance, Farrar-Breckenridge cannot show

that the outcome would have been different. We addressed a similar circumstance in

State v. Warren, 55 Wn. App. 645, 779 P.2d 1159 (1989), and found no prejudice. In

Warren, the defendant was charged with one count of attempted second degree rape

and one count of first degree statutory rape. Warren, 55 Wn. App. at 646-47. The

counts arose from incidents with two different victims. Warren, 55 Wn. App. at 647. On

appeal, Warren argued he was denied effective assistance of counsel when his attorney

failed to move to sever the two counts. We affirmed the convictions, concluding that

because the defendant and the victims testified, it was unlikely two separate juries

would have come to a different conclusion:

             Even if it is assumed, however, that severance would have been
      granted, appellant was not prejudiced by counsel's alleged deficient
      performance. Given the nature of the charges, the State's evidence was
      relatively strong. Both of the victims testified, were subject to cross
      examination, and gave concise accounts of Warren's conduct. In his
      defense, Warren took the stand and denied the charges outright. The jury
      thus had a full opportunity to assess the demeanor and credibility of all the
      parties. We can find no basis to conclude that the jury might reasonably
      have performed this assessment differently had the charges been tried
      separately.

Warren, 55 Wn. App. at 655.

      The same is true here. Both C.L. and B.B. testified and were subject to cross-

examination. Farrar-Breckenridge testified and denied the allegations. The jury here

had a full opportunity to assess the credibility of all the witnesses. Farrar-Breckenridge


                                          -14-
No. 71842-8-1/15



failed to identify any specific reason why separate juries would have performed this

assessment differently.

                                     CONCLUSION


       Because Farrar-Breckenridge cannot show either that his defense counsel was

deficient or prejudice, we conclude he was not deprived of effective assistance of

counsel. We affirm the judgment and sentence.




WE CONCUR:




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                                          -15-
