State of Washington v. Joshua Wade Brink
34031-7
| Wash. Ct. App. | Jun 8, 2017Background
- In 2012 Joshua Brink lived with Ashley Brown and her 2-year-old son K.S.D.; Brink cared for the child the day the child suffered severe burns to his buttocks and underside of his penis.
- Brink said the child was placed in the tub and hot water turned on while Brink answered the door; Brink removed the child and provided care and called Brown.
- Pediatrician Dr. Michelle Messer, expert in child abuse, testified the burn pattern was inconsistent with an accidental immersion and was most consistent with abusive contact.
- A jury convicted Brink of second-degree assault of a child; trial court sentenced him to 120 months confinement plus 18 months community custody.
- Brink appealed, raising prosecutorial misconduct during closing, ineffective assistance for failure to object to certain testimony, evidentiary error over admission of photographs, and sentencing error for a combined term exceeding the statutory maximum.
- The Court of Appeals affirmed the conviction, rejected the misconduct/ineffective assistance/evidence claims, but remanded for correction of the community custody term to conform with statutory limits.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Brink) | Held |
|---|---|---|---|
| Prosecutorial misconduct in closing argument | Prosecutor’s remarks were a permissible attack on the plausibility of defense theory and properly characterized expert testimony as “without hesitation.” | Prosecutor vouched for witness, shifted burden of proof, and introduced facts not in evidence ("the doctor told you beyond a reasonable doubt"). | Court found a brief misstatement was immediately corrected, argument did not impermissibly shift burden, and no reversible misconduct. |
| Ineffective assistance for failure to object to expert speculation | No ineffective assistance because expert’s narrative explained her reasoning; failing to object was reasonable strategy and could undercut expert credibility. | Counsel was deficient for not objecting to speculative/irrelevant expert testimony and to lay-witness opinion as to guilt. | Court held counsel’s choices were within reasonable strategy; Brink did not show prejudice. |
| Failure to object to lay witness opinion (Ashley Brown) | Prosecutor’s question fit within scope and the testimony ultimately aided defense by showing Brown’s changed view relied on experts. | Cross/recross opened only "prior" relationship; redirect eliciting that Brown later believed it was purposeful was improper opinion on guilt. | Court concluded defense had tactical reasons not to object and testimony could help undermine expert testimony; no reversible error. |
| Admission of photographs of injuries | Photographs were probative and supported causation testimony; not excessive. | Photographs cumulative and potentially inflammatory. | Court held the trial court did not abuse its discretion admitting three accurate, probative photos. |
| Sentencing error: combined confinement + community custody exceeds statutory maximum | State conceded error; court must reduce or amend community custody term under RCW 9.94A.701(9). | Brink argued sentence exceeded statutory maximum. | Court remanded for amendment or resentencing so total confinement plus community custody does not exceed statutory maximum; conviction affirmed. |
Key Cases Cited
- In re Pers. Restraint of Brooks, 166 Wn.2d 664 (2009) (trial court must clarify combined confinement and community custody will not exceed statutory maximum)
- State v. Boyd, 174 Wn.2d 470 (2012) (post-RCW 9.94A.701(9) treatment of combined confinement/community custody sentence requirements)
- State v. Gefeller, 76 Wn.2d 449 (1969) (scope of examination and what opens the door to redirect testimony)
- State v. Madison, 53 Wn. App. 754 (1989) (failure to object to testimony requires egregiousness and centrality to warrant reversal)
- State v. Whitaker, 133 Wn. App. 199 (2006) (admission of photographic evidence reviewed for abuse of discretion)