FILED

COURT OF APPEALS

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTO1SION 11

STATE OF WASHINGTON, 

DIVISION II

Respondent, 

v. 

COURTNIE DANIELLE CROSBY, 

Appellant. 

D! D APR ! it AM 9: 50

S

No. 44866 -1 - II

BY_ 

UNPUBLISHED OPINION

MELNICK, J. — Courtnie Crosby appeals her convictions for residential burglary, robbery

in the first degree, and violation of a court order. Crosby argues that the trial court violated her

right to present a defense when it denied her continuance motion and that she received ineffective

assistance of counsel. We affirm. 

FACTS

I THE CRIMES

Crosby and Felix Preval had a romantic relationship that ended in late December 2011. 

Crosby and her children resided with Preval in his home until their relationship ended. 

A no contact order prohibited Crosby from contacting Preval. On December 28, 2011, 

Crosby went to Preval' s home to retrieve some of her belongings, but an argument ensued and she

left. Later in the evening, Crosby returned. While Preval and Crosby loaded her belongings into

a vehicle, Darnell Jones and Clayton King attacked Preval. After dragging Preval into his home, 

Jones and King stabbed Preval several times in his abdomen, puncturing his stomach. They also
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took approximately $ 19, 000 in cash from Preval' s home. Crosby entered and remained in the

home throughout the incident. After the stabbing, Crosby did not help Preval, and she fled the

scene. 

The State charged Crosby by amended information with assault in the first degree, 

residential burglary, robbery in the first degree, and felony violation of a court order. Additionally, 

the State alleged that Crosby or an accomplice was armed with a deadly weapon during

commission of the assault, burglary, and robbery. 

II. MOTION FOR CONTINUANCE

Initially set for May 7, 2012, the trial court continued the trial four times because the parties

needed time to prepare for trial and Crosby' s co- defendant was assigned a new attorney. 

Due to a breakdown of communication with Crosby, her attorney enlisted another defense

attorney to assist him on Crosby' s case. On January 29, 2013, Crosby' s original attorney moved

to withdraw and asked that the attorney who assisted on Crosby' s case substitute as counsel. The

new attorney represented to the trial court that she had been involved in the case for approximately

three months, that she had already reviewed the discovery, and that she had talked to Crosby. She

assured the trial court that she could try the case without any additional continuances ifit was set

over about a month. At that time, the defense knew of no new witnesses. The following colloquy

occurred between the trial court and the new attorney: 

THE COURT: [ R]eally, really, really, really, you can be ready on March 4th? If

you were a brand -new lawyer walking into this thing, I really don' t feel like I can

hold you to that. You have actually seen the discovery and talked to the defendant, 

so you should have a basis — 

ATTORNEY]: Your Honor, I would say I have been involved in this case, you

know —I' m going to say approximately three months. 

THE COURT: So, you feel confident. 

ATTORNEY] : [The original attorney] might be able to correct me on that. I have

had discussions with [him] and Ms. Crosby together and separately regarding the

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case, and I have read all of the discovery. I have read through it all. Some of them

in depth with Ms. Crosby. 

THE COURT: Does March 4th work for you? 

ATTORNEY] : Yes, it does. 

Report of Proceedings ( RP) ( Jan. 29, 2013) at 13 - 14. Over the State' s objection, the trial court

granted the motion to withdraw, entered an order authorizing substitution of counsel, and

continued the trial to March 4, 2013. 

On the morning of March 4, Crosby moved for a continuance. In support of her motion, 

the attorney explained that two -and -a -half weeks prior to trial, she learned that Crosby " has a

lifelong history of abuse including abuse and violence with the alleged victim in this case." RP

Mar. 4, 2013, J. Chushcoff) at 5. The attorney argued that she believed Crosby suffered from

battered person syndrome and that it would be an appropriate defense to the charges. At that point, 

she was in the process of gathering Crosby' s mental health records, but because many records were

out of state, she did not yet have all of them. She advised the trial court that two psychologists

agreed with her " analysis of the situation and [ were] willing to support that defense" but they

weren' t available the first two weeks of March. RP ( Mar. 4, 2013, J. Chushcoff) at 5. Crosby

argued that she needed expert testimony to explain why Crosby would make otherwise seemingly

illogical statements to law enforcement. 

The State objected, noting that Crosby' s prior conviction for assault constituted the only

known domestic violence between Crosby and Preval. Crosby did not persuade the trial court that

battered person syndrome would be an applicable defense in the case. The trial court denied the

continuance motion because the case had been pending for approximately one year and "[ t]hat' s

plenty of time for the defense to get ready on this case." RP ( Mar. 4, 2013, J. Chushcoff) at 18. 

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Again on March 4, Crosby renewed her continuance motion and requested two additional

weeks to prepare. Her attorney represented to the trial court that once she became Crosby' s trial

counsel and started working with her to prepare for trial, she learned more about Crosby' s

background and realized that there was " an issue pertaining to battered women' s syndrome [ that

is] ... definitely . relevant in terms of explaining Ms: Crosby' s conduct before, during, and after

the events that caused the charges to be brought." RP ( Mar. 4, 2013, J. Culpepper) at 8. She

intended to use battered person syndrome to explain why Crosby gave conflicting and untrue

statements to law enforcement. At that time, no potential expert witnesses had performed

psychological examinations of Crosby. The trial court again denied the continuance motion and

stated that battered person syndrome would not be applicable to Crosby' s defense. 

III. THE TRIAL

Preval testified that on December 28, 2011, prior to Crosby' s arrival, he saw two men

outside his home. During the attack, Crosby didn' t help Preval; he thought that he heard Crosby

say she wanted to call the police, " but not with any kind of energy." RP ( Mar. 6, 2013) at 123. 

Preval also heard Jones tell Crosby not to call the police and that he didn' t want to hurt her. 

According to Preval, Crosby faced him during the stabbing. Preval had not previously told Crosby

about the cash he kept in his home. While Preval recuperated from his injuries in the hospital, 

Crosby contacted him via text message and told him that one ofthe men raped her. 

The State presented further evidence of Crosby' s involvement in the incident through the

testimony of Detectives Robert Baker and Health Holden, who described Crosby' s changing

accounts of the incident. During Detective Baker' s first interview with Crosby on February 1, 

2012, Crosby said Jones and King dragged Preval inside and then came back outside and forced

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her into the residence. Crosby gave Detective Baker a detailed account of an alleged sexual assault

committed upon her. The intensity of Crosby' s emotions varied throughout the interview. 

Following the interview, Detective Baker obtained a warrant to locate and seize evidence

of the alleged sexual assault. However, swabs of suspected liquids from the carpet in the room in

which Crosby claimed she was sexually assaulted returned no evidence to substantiate that a sexual

assault had occurred. 

On March 8, Detective Holden interviewed Crosby while Detective Baker watched. 

Crosby " made it very clear that she had nothing to do with [the men involved in the incident]" and

that she " had not contacted them." RP ( Mar. 11, 2013) at 282. She again claimed that she was

sexually assaulted. Crosby said that she did not receive anything taken during the incident. 

Immediately following the interview with Detective Holden, Detective Baker again

interviewed Crosby. Detective Baker told Crosby that law enforcement knew that she had set up

the robbery. Crosby said that she received twenty -three $ 100 bills from Jones and King following

the incident. She said that Jones is a friend, and she sought his help to get her belongings back

from Preval. She admitted that she planned to rob Preval of money. Crosby told Detective Baker

that she met Jones and King prior to the incident, and she told them they would have to jump

Preval outside and bring him into the residence. Crosby drove Jones and King to Preval' s

residence, and dropped them off a few blocks away. Later in the interview, Crosby admitted that

she lied about the sexual assault. Finally, on March 9, Crosby told Detective Baker that Jones told

her to go to the back bedroom during the incident and make it sound like she had been assaulted. 

Crosby testified at trial. She apprised the jury of her feelings and emotions at the times of

the interviews, but not about any mental health diagnoses or her history of abuse. She testified

that discussions with Jones and King about robbing Preval were a joke. Crosby said she did not

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know that Preval kept cash in his residence and that Jones had pulled her hair and forced her to

take an envelope of cash to prevent her from going to law enforcement. Crosby admitted to taking

the cash and spending some of it. Crosby acknowledged the falsity of the sexual assault story and

said that Jones told her to tell Detective Baker that she was raped. Crosby testified that she did

not tell Preval about any sexual assault. She said that she lied to Detective Baker because she

feared Jones and King, and that she continued to lie in subsequent interviews because she thought

she needed to provide consistent statements. Crosby testified that she agreed with what Detective

Baker suggested during the first interview only because he " kept banging on the table" and she

wanted him to stop. RP ( Mar. 12, 2013) at 429. 

The jury found Crosby not guilty of assault in the first degree, but guilty of robbery in the

first degree while armed with a deadly weapon, residential burglary while armed with a deadly

weapon, and violation of a court order. The trial court sentenced her to a standard range sentence

of 77 months in custody. Crosby appealed. 

ANALYSIS

I. RIGHT TO PRESENT A DEFENSE

A. Standard of Review

A defendant in a criminal trial has a constitutional right to present a defense. State v. 

Rehak, 67 Wn. App. 157, 162, 834 P. 2d 651 ( 1992). " The right of an accused in a criminal trial

to due process is, in essence, the right to a fair opportunity to defend against the State' s

accusations." Chambers v. Mississippi, 410 U. S. 284, 294, 93 S. Ct. 1038, 35 L. Ed. 2d 297 ( 1973). 

However, a criminal defendant's right to present a defense is not absolute; a defendant seeking to

present evidence must show that the evidence is " at least minimal[ ly] relevant ' to a fact at issue

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in the case. State v. Jones, 168 Wn.2d 713, 720, 230 P. 3d 576 ( 2010) ( quoting State v. Darden, 

145 Wn.2d 612, 622, 41 P. 3d 1189 ( 2002)). 

A trial court' s denial of a continuance motion may infringe on a defendant' s right to

compulsory process and right to present a defense " if the denial prevents the defendant from

presenting a witness material to [ her] ... defense." State v. Downing, 151 Wn.2d 265, 274 -75, 87

P. 3d 1169 ( 2004). We determine whether a trial court's denial of a continuance motion violated a

criminal defendant's constitutional right to present a defense on a case -by -case basis, examining

the circumstances present in the particular case.'" Downing, 151 Wn.2d at 275 n.7 ( quoting

State v. Eller, 84 Wn.2d 90, 96, 524 P. 2d 242 ( 1974)). We review the trial court's decision to grant

or deny a continuance motion for an abuse of discretion. Downing, 151 Wn.2d at 272. A trial

court abuses its discretion when its decision is manifestly unreasonable or based on untenable

grounds or reasons. State v. Lord, 161 Wn.2d 276, 283 -84, 165 P. 3d 1251 ( 2007). And we review

de novo claims of a denial of Sixth Amendment rights, including the right to present a defense. 

See e. g., Jones, 168 Wn.2d at 719; State v. Iniguez, 167 Wn.2d 273, 280, 217 P. 3d 768 ( 2009). 

B. The Trial Court' s Continuance Ruling Did Not Violate Crosby' s Right to Present

a Defense

Crosby argues that by denying her continuance motion to secure records of her history of

abuse and to procure expert testimony on battered person syndrome, the trial court abused its

discretion which resulted in a violation of her constitutional right to present a defense. We

disagree. 

E] ven where the denial of a motion for continuance is alleged to have deprived a

criminal defendant of his or her constitutional right to compulsory process, the

decision to deny a continuance will be reversed only on a showing that the accused

was prejudiced by the denial and /or that the result of the trial would likely have

been different had the continuance not been denied. 
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State v. Tatum, 74 Wn. App. 81, 86, 871 P. 2d 1123 ( 1994). Here, the trial court did not abuse ,its

discretion by denying the motion for a continuance. Crosby can demonstrate neither prejudice nor

that the result of the trial would likely have been different. 

A subset of post- traumatic stress disorder ( PTSD), battered person syndrome is a

collection of behavioral and psychological characteristics exhibited by victims of a prolonged, 

repetitive pattern of physical and emotional abuse at the hands of their partners." State v. Riker, 

123 Wn.2d 351, 358, 869 P.2d 43 ( 1994). Evidence of abuse and battered person syndrome can

be admitted to support a claim of self - defense. In re Pers. Restraint ofFaircloth, 177 Wn. App. 

161, 169, 311 P. 3d 47 (2013) ( citing State v. Janes, 121 Wn.2d 220, 238 -41, 850 P. 2d 495 ( 1993)). 1

Self- defense requires, along with other evidence, that " the defendant reasonably perceived . 

imminent danger of great personal injury." Faircloth, 177 Wn. App. at 169. "[ T] he syndrome [is] 

admitted only in cases in which the batterer and the victim have developed a strong relationship, 

usually over a period of years." Riker, 123 Wn.2d at 360. Expert testimony on this syndrome

outside ofthe context of a relationship between the batterer and the victim is not admissible. Riker, 

123 Wn.2d at 363. Furthermore, evidence of battered person syndrome is not admissible for

purposes of "' general credibility. ' State v. Green, 182 Wn. App. 133, 155, 328 P. 3d 988 ( 2013) 

quoting State v. Hanson, 58 Wn. App. 504, 508, 793 P. 2d 1001 ( 1990)), review denied, 337 P. 3d

325 ( 2014). 

1 Battered woman syndrome and battered child syndrome both "find their basis in abuse - induced

PTSD and elicit a similar response from the abuse victim." Janes, 121 Wn.2d at 235. " Given

the close relationship between the battered woman and battered child syndromes, the same

reasons that justify admission ofthe former apply with equal force to the latter." Janes, 121

Wn.2d at 235. 

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The trial court acted reasonably by denying Crosby' s continuance motion. Crosby was in

custody and the trial had been pending for almost one year. The trial date had already been

continued four times. Despite learning this new information two - and -a -half weeks prior to the

trial date, Crosby did not move for a continuance until the day of trial. The potential expert

witnesses had not yet evaluated Crosby and were opining based on only what Crosby' s counsel

had represented to them. At the time she moved for a continuance, Crosby failed to establish the

admissibility or materiality of these experts' testimony. Because the trial court' s decision to deny

the continuance motion was not manifestly unreasonable or based on untenable grounds, the trial

court did not abuse its discretion. 

Additionally, when reviewing the record and the particular circumstances of the case, 

Crosby has not shown that any prejudice resulted from the denial of her continuance motion. The

records and expert testimony regarding battered person syndrome were not relevant to her defense. 

Crosby did not claim self - defense. - Furthermore, the record demonstrates that Crosby did not

participate in the use of force against Preval and she did not perceive imminent danger of great

personal injury by Preval. In fact, Crosby wanted to offer expert testimony on battered person

syndrome to explain her behavior during and after the incident, e. g. why she did not call the police, 

why she accepted money from Jones and King, and why she gave conflicting statements to

Detectives Holden and Baker. This use of battered person syndrome is irrelevant to her defense

and expert testimony would not be relevant in this context. See Riker, 123 Wn.2d at 358. Because

the evidence Crosby would have offered if the trial court granted her continuance motion is not

minimally relevant to a fact at issue in the case, she cannot show that she was prejudiced by the

denial or that the result ofthe trial would likely have been different. The trial court did not violate

Crosby' s right to present a defense or abuse its discretion, and Crosby was not prejudiced. 

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II. THE TRIAL COURT' S RULING DID NOT RESULT IN INEFFECTIVE ASSISTANCE OF COUNSEL

A. Standard of Review

Crosby also contends that the trial court decision to deny the continuance resulted in her

attorney providing ineffective assistance of counsel. To prevail on an ineffective assistance of

counsel claim, Crosby must show that counsel' s performance was so deficient that it "`fell below

an objective standard ofreasonableness ' and that the deficient performance prejudiced her. State

v. Thomas, 109 Wn.2d 222, 226, 743 P. 2d 816 ( 1987) ( quoting Strickland v. Washington, 466 U.S. 

668, 688, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984)). There is a strong presumption that defense

counsel's performance was not deficient. State v. McFarland, 127 Wn.2d 322, 335, 899 P. 2d 1251

1995). To establish prejudice, the defendant must show a reasonable probability that the deficient

performance affected the outcome ofthe trial. Thomas, 109 Wn.2d at 226. We review ineffective

assistance of counsel claims de novo. State v. Sutherby, 165 Wn.2d 870, 883, 204 P. 3d 916 (2009). 

B. Crosby Did Not Receive Ineffective Assistance of Counsel

Crosby argues ineffective assistance of counsel because her counsel could not adequately

represent her without evidence and expert testimony to establish battered person syndrome. We

disagree and hold that Crosby did not receive ineffective assistance of counsel. 

Performance may be deficient if "counsel failed to conduct appropriate investigations to

determine what defenses were available, adequately prepare for trial, or subpoena necessary

witnesses." State v. Maurice, 79 Wn. App. 544, 552, 903 P.2d 514 ( 1995). When the courts have

held that a failure to investigate or call a potential witness constituted ineffective assistance, the

witness has been crucial to the presentation of a legitimate defense. See, e. g., Thomas, 109 Wn.2d

at 232. As discussed above, battered person syndrome is not a legitimate defense in the

circumstances of Crosby' s case because she did not present a defense of self - defense. Therefore, 

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her counsel was not deficient because any evidence regarding battered person syndrome was not

admissible. Because Crosby fails to establish that her counsel' s performance was deficient, her

ineffective assistance of counsel claim fails. 

We affirm Crosby' s convictions. 

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. 

We concur: 

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Melnick, J. 41