State Of Washington, Respondent V Tucker S. Kahler, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 54942-5-II
Respondent,
v.
UNPUBLISHED OPINION
TUCKER S. KAHLER,
Appellant.
PRICE, J. — Tucker Kahler appeals from his conviction of rape of a child in the third degree.
He argues that defense counsel was ineffective at trial for failing to provide evidence related to the
visibility of the victim’s birthday on Facebook. He also argues, and the State concedes, that the
trial court erred by imposing a sentence in excess of the statutory maximum and by imposing a
supervision fee. We disagree with Kahler’s argument as to ineffective assistance of counsel.
However, we agree that the supervision fee should be stricken and that Kahler’s judgment and
sentence should be remanded to the trial court to correct the sentencing error.
FACTS
I. BACKGROUND
Kahler and N.T. met at a Walmart while N.T. was shopping with her grandmother. Later
that day, N.T., who was 14 years old at the time, snuck out of her grandparents’ house in the middle
of the night to Kahler’s car that was parked across the street. Kahler was 26 years old at the time.
Filed
Washington State
Court of Appeals
Division Two
March 8, 2022

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When N.T. got into Kahler’s car, he handed her a White Claw. Kahler drove N.T. to a secluded
place and sexual intercourse occurred.
Kahler was subsequently charged with rape in the second degree and rape of a child in the
third degree.
II. TRIAL
At trial, N.T. testified that Kahler had forced her to have sexual intercourse with him. She
said that when she first met Kahler, she told him she was 14 years old. She admitted that according
to the birthdate listed on her Facebook profile, she was 18, but she said that her privacy settings
on Facebook were set so that only her friends and those with mutual friends with her could see this
false birthdate.
Kahler testified and admitted to having sex with N.T. However, he maintained that it was
consensual and that he had reasonably believed N.T. was at least age 16. These were defenses to
the crimes of rape in the second degree and rape of a child in the third degree respectively. Kahler
testified that N.T. had told him she was 18 when they first met. He also testified that although he
did not have a Facebook account, he had looked up N.T.’s Facebook page prior to the alleged rape
and the birthdate provided on her page was publicly viewable and indicated that she was 18.
In rebuttal, the State presented the testimony of Detective Dave Arand of the Port Angeles
Police Department who showed a screenshot of N.T.’s Facebook profile taken that morning
indicating that her birthdate was not visible to users who did not have mutual friends with N.T.
During cross-examination of Detective Arand, defense counsel asked that the jury be
excused from the courtroom for an offer of proof. With the jury absent, defense counsel explained
that he had viewed N.T.’s profile on Facebook using his own account and N.T.’s birthdate was

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visible even though he was neither friends with N.T. nor had mutual friends with her. Defense
counsel wanted to explore whether he could somehow bring in the evidence from his own
Facebook page.
Continuing with his offer of proof, defense counsel then handed his phone to Detective
Arand, who confirmed that defense counsel was not friends with N.T. Detective Arand looked up
N.T.’s profile and confirmed that he could see her birthdate on defense counsel’s phone. Although
Detective Arand did not confirm that defense counsel did not have mutual friends with N.T.,
defense counsel stated twice that he did not.
The parties and the trial court then engaged in a discussion regarding whether and how
defense counsel could bring in evidence from his own Facebook account. Defense counsel
appeared to have decided that, instead of actually presenting his own Facebook account, he was
going to ask Detective Arand whether he had been able to see N.T.’s birthdate on her profile from
any other accounts. At this point in the discussion, Kahler interrupted and asked to speak with
defense counsel privately.
After this private discussion with Kahler, defense counsel came back and informed the trial
court that he felt like there were several potential issues with bringing in evidence from his own
Facebook page. Defense counsel also expressed doubts about the evidence, saying:
I think that makes more sense, because I just don’t, the more I thought about it,
I just don’t feel comfortable with this because something is just—I just looked, I
don’t see that we have any mutual friends in common, but something had to have
happened to where I could see it and Detective Arand can’t.
2 Verbatim Report of Proceedings (VRP) at 543. After this conversation, the jury returned to the
courtroom, and defense counsel continued cross-examining Detective Arand. Detective Arand
confirmed that the screenshot he had presented was downloaded that morning and did not show

No. 54942-5-II
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what might be viewable when Kahler claimed to have seen the page. Notably, defense counsel
asked no questions about defense counsel’s own Facebook page that had been previously discussed
during the offer of proof.
The jury found Kahler not guilty of rape in the second degree with forcible compulsion
but guilty of rape of a child in the third degree.1
III. SENTENCING
The statutory maximum penalty for Kahler was 60 months and the standard range was 36-
48 months. The trial court sentenced Kahler to 48 months in prison followed by 36 months of
community custody.
The trial court also found Kahler to be indigent and stated that it would not be imposing
any financial obligations apart from the victim assessment penalty. However, the judgment and
sentence included a provision requiring Kahler to pay supervision fees.
Kahler appeals his conviction and sentence.
ANALYSIS
I. INEFFECTIVE ASSISTANCE OF COUNSEL
A. LEGAL PRINCIPLES
The Sixth Amendment to the U.S. Constitution and article I, section 22 of the Washington
Constitution guarantee a defendant the right to effective assistance of counsel. State v. Grier, 171
Wn.2d 17, 32, 246 P.3d 1260 (2011). Prevailing on an ineffective assistance of counsel claim
1 The trial court’s instructions to the jury included the defense’s proposed instruction on the
affirmative defense of mistake of age.

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requires the defendant to show: (1) deficient performance and (2) prejudice to the defendant. Id.
at 32-33.
Counsel’s performance is deficient if it falls below an objective standard of reasonableness.
Id. at 33. We engage in a strong presumption that counsel’s performance was reasonable. Id.
“ ‘When counsel’s conduct can be characterized as legitimate trial strategy or tactics, performance
is not deficient.’ ” Id. (quoting State v. Kyllo, 166 Wn.2d 856, 863, 215 P.3d 177 (2009)). A
defendant may overcome this presumption by showing no “ ‘conceivable legitimate tactic
explaining counsel’s performance.’ ” Id. (quoting State v. Reichenbach, 153 Wn.2d 126, 130, 101
P.3d 80 (2004)).
“The reasonableness of counsel’s actions may be determined or substantially influenced
by the defendant’s own statements or actions.” Strickland v. Washington, 466 U.S. 668, 691, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In making a determination regarding an ineffective assistance
of counsel claim, we may also consider actions and statements of the defendant which may have
“given counsel reason to believe that pursuing certain investigations would be fruitless or even
harmful.” See Id.
The prejudice prong requires the defendant to show “a reasonable probability that, but for
counsel’s deficient performance, the outcome of the proceedings would have been different.” State
v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009). “ ‘A reasonable probability is a probability
sufficient to undermine confidence in the outcome.’ ” Grier, 171 Wn.2d at 34 (quoting Strickland,
466 U.S. at 694).

No. 54942-5-II
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B. APPLICATION
Kahler maintains that defense counsel was ineffective for failing to present evidence from
defense counsel’s own Facebook page that could have corroborated Kahler’s testimony that N.T.’s
Facebook profile said she was 18. We disagree.
It appears from the record that defense counsel’s decision not to present the evidence or
ask Detective Arand about it on cross-examination can be characterized as a legitimate trial
strategy. Initially, defense counsel appeared to be uncertain about whether, and how, to bring in
the evidence. Then, as he was openly considering using the evidence to cross-examine Detective
Arand, Kahler interrupted the conversation and asked if he could speak with defense counsel
privately. After this private attorney-client conversation, defense counsel immediately informed
the trial court he was not going to attempt to introduce his own Facebook page. It is logical to
infer that defense counsel’s decision not to bring in this evidence immediately following his private
consultation with Kahler was “determined or substantially influenced” by this discussion–
supporting the inference that this was a jointly-discussed strategy, not deficient performance. See
Strickland, 466 U.S. at 691. Because defense counsel’s decision appears to be a legitimate trial
strategy resulting from a conversation with Kahler, he was not deficient for failing to present the
evidence related to his Facebook page.
Even if defense counsel was deficient for not introducing his own Facebook page into
evidence, Kahler has failed to show prejudice. First, the probative value of the evidence was low
because it would have only shown that N.T.’s birthdate was publicly viewable at the time of the
trial. Because Facebook privacy settings are changeable, the evidence would not have established
what was viewable when Kahler claimed to have looked at the profile about a year prior. Second,

No. 54942-5-II
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there were other sources of information from which the jury could evaluate the reasonableness of
Kahler’s purported belief that N.T. was eighteen, especially since N.T. testified in the courtroom
where the jury was able to directly observe her. Third, defense counsel appropriately minimized
the importance of the State’s Facebook exhibit by soliciting and emphasizing testimony that it did
not establish what was publicly viewable at the time of the incident. For these reasons, Kahler has
failed to establish that he was prejudiced by defense counsel’s failure to present the evidence.
II. SENTENCE
Kahler argues that the trial court erred in imposing a sentence beyond the statutory
maximum. The State concedes the error. We agree.
Where a defendant’s sentence includes community custody along with time in prison, the
combined time of both may not exceed the statutory maximum sentence. RCW 9.94A.505(5).
Where the trial court erroneously imposes a sentence in excess of the statutory maximum, we
remand for the trial court to amend the community custody term. State v. Boyd, 174 Wn.2d 470,
473, 275 P.3d 321 (2012).
The trial court sentenced Kahler to 48 months in prison and 36 months of community
custody for a total of 84 months. The statutory maximum was 60 months. Because Kahler’s
sentence was in excess of the statutory maximum, we remand for the trial court to reduce the
community custody term consistent with the statutory maximum.
III. SUPERVISION FEES
Kahler argues that the trial court inadvertently imposed supervision fees as part of the
judgment and sentence. The record shows that the State did not orally request the supervision fees
and the trial court did not intend to impose them at sentencing. The trial court found Kahler

No. 54942-5-II
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indigent and said that the only financial obligation that would be imposed was the victim
assessment fee. The State concedes that the judgment and sentence should be corrected to remove
the supervision fees.
Because it is evident from the record that the trial court did not intend to impose the
supervision fees, we find that the inadvertent imposition of the supervision fees was a procedural
error and order it stricken from the judgment and sentence. See State v. Bowman, 198 Wn.2d 609,
627-30, 498 P.3d 478 (2021).
CONCLUSION
In conclusion, we affirm Kahler’s conviction, and remand for the trial to reduce the
community custody term and order the supervision fees be stricken from the judgment and
sentence.
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.
PRICE, J.
We concur:
GLASGOW, A.C.J.
WORSWICK, J.