### FILED JUNE 8, 2017 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division Ill


### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, Respondent, 

### v. JOSHUAW. BRINK, Appellant. ) ) ) ) ) ) ) ) ) 

### No. 34031-7-111

UNPUBLISHED OPINION

PENNELL, J.

- Joshua Brinkappeals his conviction for second degree assault ofa child. We affirm Mr. Brink's convictionbutremand for resentencing. 

### FACTS In 2012, Mr. Brink livedwithhis then girlfriend, Ashley Brown, and hertwo-yearold son, K.S.D. One afternoon in late November, Mr. Brinkwas at homewith K.S.D. when he calledMs. Brown andreported K.S.D. hadbeenburned. Ms. Brown arrived home and saw K.S.D.'s buttocks were red. Mr. Brink's explanation ofthe incident is as follows: Mr. Brinkhadbrought K.S.D. home from work, and the two were preparingtotake a shower. Mr. Brink removed K.S.D.'s clothes and placedhim onthe toilet. 1 

### Mr. Brinkthenheard a truck

1

### AccordingtoMs. Brown, Mr. Brinkwas "very adamant" K.S.D. betoilettrained. 1Verbatim Report ofProceedings (Dec. 2, 2015) at 147.No. 34031-7-III 

### State v. Brink coming up the driveway. When K.S.D. finished using the toilet, Mr. Brink set K.S.D. in the emptybathtub. Mr. Brinkwentto answer the front door and engaged in a conversation withthe visitor, a friend from work. While talking, Mr. Brinkheard K.S.D.
scream. 

### Mr. Brinkran to the bathroom and noticed steam coming from the bathtub. 

### Mr. Brink observed K.S.D. sitting in the bathtub, crying, with his knees bent and feet against the front ofthe bathtub while his hands were braced against the walls ofthe bathtub. The hot water handle was turned on, and hot water was running betweenhis legs. Mr. Brink immediately grabbed K.S.D. out ofthe bathtub and turned offthe water. He thenplaced K.S.D. in cool water and cared for K.S.D.'s bums before calling Ms. Brown. Ms. Brown and 

### Mr. Brink initially cared for K.S.D.'s bums athome. But after several days Ms. Browntook K.S.D. to the hospital because the bums appearedto be getting worse. Atthe hospital, K.S.D. was treated by Dr. Michelle Messer, a board certified pediatrician with expertise in child abuse and neglect. Dr. Messernoted K.S.D. had sustained serious bums to his buttocks and the underside ofhis penis. As there were no other injuries on K.S.D.'s body, Dr. Messer did not think the bumpattern was consistent with an accidentally inflicted bum in the manner described by Mr. Brink. With an immersion bum, Dr. Messer expected to see sparing in the buttocks and genital region, or
2No. 34031-7-111 State v. Brink

a lack ofbums that occurs when areas ofskin are insulated from the scalding water either by contact with the coolerbathtub surface orby contact with another area ofthe body. She also expectedto see splashmarks ofbums. Based on the incongruity between Dr. Messer's observations and Mr. Brink's explanation, Dr. Messer concludedthe bums were caused by abusive contact. The State charged Mr. Brinkwith second degree child assault with aggravating circumstances. Following a trial where witnesses testified consistent with the abovestated facts, thejury found Mr. Brink guilty as charged. At sentencing, the trial court imposed 120 months ofconfinement and 18 months ofcommunity custody. The trial court stated any good time credited to Mr. Brink during confinementwould be converted to community custody so as notto exceed the statutory maximum of 120 months. Accordingly, the community custodyprovisions ofthejudgmentand sentence include the following notation: "[C]ombinedterm ofconfinement and community custody for any particular offense cannot exceed the statutory maximum. RCW 9.94A.701." Clerk's Papers (CP) at 180. Mr. Brink appeals. ANALYSIS 

### Allegations of prosecutorial misconduct During closing argument the prosecutor stated: "Thephysical evidence, the
3No. 34031-7-III 

### State v. Brink
observed evidence is ofabusive injury. 

### The doctor toldyou beyonda reasonable doubtwithout hesitation, withouthesitation atall that this was notnonaccidental. She gave a thorough and good consideration. 

### So if 

### it didn't happen thatway, which waydid it happen?" 2 Verbatim Report ofProceedings (VRP) (Dec. 2, 2015) at 259 (emphasis added). Mr. Brink claims these comments were improperbecause they (1) vouched for Dr. Messer's credibility, (2) misstated and impermissibly shifted the burden ofproof, and (3) introduced facts not in evidence. To establishprosecutorial misconduct, a defendant mustprove theprosecutor's conduct was improper and prejudiced his right to a fair trial. 

### State v. Jackson, 150 Wn. App. 877, 882, 209 P.3d 553 (2009). Prejudice is established only ifthere is a substantial likelihood the misconduct affected thejury's verdict. 

### Id. at 883. This court reviews a prosecutor's comments during closing argument in the context ofthe total argument, the issues in the case, the evidence discussed in the argument, and thejury instructions. 

### Id. Ifdefense counsel fails to objectto the prosecutor's statements, as was the case here, then reversal is required only ifthe misconduct was so flagrant and ill intentionedthat no instruction could have cured the resulting prejudice. 

### Id. The fact that defense counsel did not objectto a prosecutor's statements "suggests that it was oflittle moment inthe trial." 

### State v. Rogers, 70 Wn. App. 626, 631, 855 P.2d 294 (1993).
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### No. 34031-7-III 

### State v. Brink
The majority ofMr. Brink's misconduct claims fail because they are based on a mischaracterization ofthe record. The prosecutor clearly misspoke when he stated "[t]he doctor told you beyond a reasonable doubt." 2 VRP (Dec. 2, 2015) at 259. Recognizing this error, the prosecutor immediately corrected himselfand explainedthe doctor's testimony was "withouthesitation." 

### Id. The context ofthe prosecutor's comments, coupled by the lack ofobjection from the defense, supports ourunderstanding that the prosecutor simply made a misstatement that was immediately corrected, as opposedto an intentional misrepresentation. As a consequence, nojudicial intervention or correction
was necessary. Apart from seizing on the prosecutor's corrected misstatement, Mr. Brink argues the prosecutor improperly shifted the burden ofproofby asking, "ifit didn'thappen that way, which way did it happen?" 

### Id. We disagree with this assessment. It 

### is true a prosecutor must not suggest the defense has a duty to present evidence. However, "a prosecutor is entitled to point out the improbability or lack ofevidentiary support for the defense theory ofthe case." 

### State v. Osman, 192 Wn. App. 355, 366-67, 366 P.3d 956 (2016). That is whathappened here. The prosecutor's rhetorical question simply pointed out that the evidence did not support any reasonable inference otherthan guilt. This was
an appropriate line ofargument. 

### Id. (Prosecutorpermissibly asked, "If

### a struggle or
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### No. 34031-7-III State v. Brink

some type ofconfrontation didn't occur in the car how did that earring come out ofher
ear and get left on the floor and how did she break those fingernails ifan encounter did not, and a struggle, did not occur?").2 

### Ineffective assistance ofcounsel Mr. Brink claims he received ineffective assistance ofcounsel when defense counsel failed to object to (1) 

### Dr. Messer's speculative and irrelevant testimony and (2) Ms. Brown's testimony expressing an opinion on his guilt.3 

### This court reviews claims ofineffective assistance ofcounsel de novo. State v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009). Toprevail on such a claim, a defendant must show (1) defense counsel's representation was deficient and (2) the deficient representation prejudiced the defendant. State v. Grier, 171 Wn.2d 17, 32-33, 246 P.3d 1260 (2011). Deficientperformance is that which falls below an objective standard ofreasonableness. Id. at 33. This courtpresumes counsel's performance was

2

### Mr. Brink also compares the prosecutor's argument to an impermissible "fill-inthe-blank" argument. See State v. Venegas, 155 Wn. App. 507, 523-25, 228 P.3d 813 (2010) (such an argument is improper because it erodes the presumption ofinnocence and implies a defendant is responsible for supplying a reason not to convict). Butreading the prosecutor's closing argument as a whole, it is evident the prosecutor did not argue the juryhad to come up with a reason to acquit Mr. Brink. 3 

### Mr. Brink also argues it was ineffective for defense counsel to fail to object to the aforementioned aspects ofthe prosecutor's closing argument. Because the prosecutor's argument was not improper, counsel was not ineffective for failing to object. 6No. 34031-7-III 

### State v. Brink

not deficient. 

### Id. A defendant may rebut this presumption by showing theperformance
was not a matter oflegitimate strategy ortactics. 

### Id. To demonstrate prejudice, a defendant must show his trial counsel'sperformance was so inadequate thatthere is a reasonable probabilitythe result at trial would have been different. 

### State v. Kolesnik, 146 Wn. App. 790, 800, 192 P.3d 937 (2008). A failure to prove either element defeats a claim ofineffective assistance. 

### Id. 

### Speculative and irrelevant expert testimony Mr. Brink first argues defense counsel was ineffective for failing to objectto the following portion ofDr. Messer's testimony: One ofthe things I thought about is sometimes it's difficult taking care ofa two year old. I've had a few ofthose in my life, andthey canbe a challenge. You know, sometimes they poop at inappropriate moments or they gettheirhands in the diaper, and it goes everywhere, and youhave to clean that up, and people get mad. I could see where somebody could be so mad they wouldtake the kid and use scalding hot waterto clean him up. That wouldproduce this. That's one way. Do I know for sure what happenedto do that? No, I don't. I wasn't there, butthat would be one way to cause this kind ofburn. 1VRP (Dec. 1, 2015) at 77. Mr. Brink's criticisms fail to fully account for Dr. Messer's testimony. During questioning by the State, Dr. Messer engaged in a lengthy narrative aboutthe various scenarios that could have lead up to K.S.D.'s injuries. She started with theories that could 7J 

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### State v. Brink
have resulted in K.S.D. accidentally injuring himself. But none ofthose matched the physical evidence. She then described the above-quoted scenario as apossible explanation for how the injuries could have occurred. Unlike the innocent explanations, this explanation was consistent with the physical evidence. Viewed in context, Dr. Messer's testimony came across as an explanation ofher deductive reasoning process. 

### It
was notpresented as a theory ofMr. Brink's actual mind-set or motivation. The prosecutor did not rely on Dr. Messer's theory ofmotivation in arguing its case to the Jury. Reversal in such circumstances is generally unwarranted. 

### See State v. Madison, 53 Wn. App. 754, 763, 770 P.2d 662 (1989) (only in egregious circumstances, on testimony central to the State's case, will the failure to object constitute incompetence ofcounsel justifying reversal). Even ifDr. Messer's testimony had played a greaterrole in the case, reversal would be unwarranted as defense counsel's failure to object was reasonably strategic. There was no testimony indicating Mr. Brink found it difficult to take care ofa two-year old or that K.S.D. ever had a problem soiling himself. The only potentially related testimony came from Ms. Brown, who stated Mr. Brink was adamant K.S.D. be toilet trained. The feelings attributed to Mr. Brink by Ms. Brown were hardly unusual. Many parents oftwo-year-olds emphasize toilet training. Butthat does not mean they are prone


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### State v. Brink

to abuse. The lack ofevidence supporting Dr. Messer's theory ofmotivation hadthe potential to undercut her credibility and emphasize the speculative nature ofher testimony. 

### Improper opinion testimony Mr. Brink next argues defense counsel was ineffective for failing to objectto improper opinion testimony. Onrecross-examination, the following exchange occurred between Ms. Brown and defense counsel: Q Priorto this incident happening, when you and [K.S.D.] and Mr. Brink were all living together, how did the relationship seem between your son, [K.S.D.], and Mr. Brink? A Great, and that's why it was very hard for me to understandthe situation orto assume thatthe incident was on purpose ornotbecause, you know, I would think that ifa child was getting abused by somebody, that child would not wantto be around thatperson, but at the same time, he was still wanting to be around Josh, you know. He would want to go outside and play with Josh. Q So whatyou're saying, if

### I understand correctly,justto sort ofcondense it is until this incident, it seemed everything was okay. There was no reason to suspect otherwise? A Forthe mostpart, yes. 1VRP (Dec. 2, 2015) at 167. Onredirect, theprosecutor asked the following: Q Ms. Brown, has yourunderstanding changed? A Yes. 9No. 34031-7-III 

### State v. Brink
Q Canyou explainthat? A 

### Ibelieve now after listening to the experts and seeing, you know, the reports and everything that it was done on purpose. 

### Id. at 168. The State claims the defense opened the door to Ms. Brown's testimony. We disagree. The defense asked Ms. Brown about the relationship between K.S.D. and Mr. Brink "prior" to the burning incident. 

### Id. at 167. This did not open the door to the prosecution introducing testimony about whatMs. Brown's impressions were regarding the incident or what she learned afterwards. 

### See State v. Gefeller, 76 Wn.2d 449,455, 458 P.2d 17 (1969). Although the prosecutor's question improperly elicitedMs. Brown's opinion about the testimony ofother witnesses, defense counsel's failure to object was reasonably strategic. Ms. Brown's testimony made clearthat the only basis she had for doubting Mr. Brink's innocence was the testimony ofthe experts. Her independent experience was to the contrary. This testimony provided Mr. Brink an additional reason for whythejury should disbelieve the experttestimony as speculation and find Mr. Brinknot guilty.

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### No. 34031-7-III State v. Brink Evidentiary error 

### Mr. Brink contends the trial court abused its discretion by admitting multiple photographs ofK.S.D.'s injuries. We disagree. Although the photographs were somewhat cumulative, they were not excessive. Only three separate photographs were shown to thejury. All accurately depicted K.S.D.'s injuries. And all were probative, as they supported Dr. Messer's theory ofcausation. While the subject matter ofthe photographs was unpleasant, there is no indication the State used the photographs to inflame thejury. Given these circumstances, the trial court acted within its discretion in admitting the photographs. State v. Whitaker, 133 Wn. App. 199, 227-29, 135 P.3d 923 (2006). Sentencing error 

### Mr. Brink contends, and the State agrees, that the trial court erred in imposing a total term ofconfinement and community custody that exceeds the statutory maximum. Mr. Brink was convicted ofsecond degree assault ofa child. That crime carries a statutory maximum term ofincarceration of 120 months. RCW 9A.36.130(2); 9A.20.02l(l)(b). In addition, a community custody term of 18 months is authorized. RCW 9.94A.701(2); RCW 9.94A.030(55)(ix).

11No. 34031-7-III 

### State v. Brink Here, the trial court sentenced Mr. Brinkto 120 months ofconfinement and 18 months ofcommunity custody. This exceeds the statutory maximum. The court included a notation on thejudgment and sentence indicating the total term ofconfinement and community custody actually served could not exceed the statutory maximum. Such a notation was sufficient under

### In re PersonalRestraint of Brooks, 166 Wn.2d 664,211 P.3d 1023 (2009).4 

### State v. 

### Boyd, 174 Wn.2d 470,472,275 P.3d 321 (2012). However, that changed after the passage ofRCW 9.94A.701(9) in 2009. 

### Id. Following enactment ofthis statute, the

### Brooks notationprocedure no longer complied with statutory requirements. 

### Id. Because Mr. Brinkwas sentenced after RCW 9.94A.701(9) became effective, the trial court was required to reduce his term ofcommunity custody to avoid a sentence in excess ofthe statutory maximum. The court erred in not doing so. Remand to the trial court is required to either amend the community custodyterm orresentence Mr. Brink consistent with RCW 9.94A.701(9). 

### Id. at 473.5

4 

### Brooks held when the trial court imposes an aggregate term ofconfinement and community custody that potentially exceeds the statutory maximum, it must include a notation clarifying that the total term ofconfinement and community custody actually served may not exceedthe statutory maximum. 166 Wn.2d at 674-75. 5 Should the trial court optto strike the term ofcommunity custody, Mr. Brink's presence will not be required at the hearing. 12No. 34031-7-III 

### State v. Brink


### CONCLUSION Mr. Brink's conviction is affirmed. This matter is remanded to the trial court for either amendment ofthe community custody term orresentencing. Mr. Brink's request to deny appellate costs is granted. A majority ofthe panel has determined this opinionwill not be printed in the Washington Appellate Reports, but it will be filed for public recordpursuantto RCW 2.06.040.
Pennell, J. WE CONCUR:


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