State Of Washington, Respondent/cr-appellant v. Tyler Farrar Breckenridge, Appellant/cr-respondent

;,; , n ;
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TYLER M. FARRAR-BRECKENRIDGE, UNPUBLISHED OPINION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.
-2-
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 Wash. 2d 400, 420, 114 P.3d 607
(2005). This court reviews claims for ineffective assistance of counsel de novo. State
v. Sutherbv, 165 Wash. 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 Wash. 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 Wash. 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
Wash. 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
Wash. 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 Wash. 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 Wash. 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 Wash. 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 Wash. 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
Wash. 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 Wash. 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 Wash. 2d at 63. Further, any residual prejudice must be
weighed against the need for judicial economy. State v. Kalakoskv, 121 Wash. 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 Wash. 2d at 63. "When one case is remarkably stronger
than the other, severance is proper." State v. MacDonald, 122 Wash. 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 Wash. 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 Wash. 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 Wash. 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 Wash. 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 Wash. 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 Wash. 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
Wash. 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
Wash. 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 Wash. 2d 537. Further, the trial court instructed the jury to
consider each count separately. Kalakosky, 121 Wash. 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 Wash. 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 Wash. 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 Wash. App. at 646-47. The
counts arose from incidents with two different victims. Warren, 55 Wash. 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 Wash. 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:
>P£V(V\6^a^>T°
CrO v -A- *< ^-y '
-15-