IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON, r*0 0"i C-i
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No. 73517-9-1
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MICHAEL ZIELINSKI, UNPUBLISHED OPINION t3* =£r~
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Appellant. FILED: October 3, 2016 <»
Spearman, J. — To succeed on a claim of ineffective assistance of
counsel, a defendant must show that (1) the lawyer's performance fell below an
objective standard of reasonableness and (2) there was a reasonable probability
that but for the deficient performance, the outcome of the proceeding would have
been different. If the defendant cannot prove both prongs, the claim fails. Here,
appellant Michael Zielinski was convicted of multiple counts of child rape. He
claims that as a result of his lawyer's failure to object to certain hearsay
evidence, the lawyer's representation was ineffective. But even if the failure to
object constituted a deficient performance, Zielinski cannot show that but for the
error, the outcome of the proceeding would have been different. We affirm.
FACTS
Michael Zielinski married Annette Griffith and had three children: two sons
and a daughter, A.G., who was born July 2, 1996. RP 228. They all lived together
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in a home in Des Moines, Washington. Zielinski and Griffith's marriage began
deteriorating and in March of 2009, Griffith and the children moved out of the
family home into her parent's house in Federal Way. Griffith stored most of the
family's belongings in the garage. In June 2012, Griffith and A.G. discussed her
old bed from the Des Moines home that had been in storage. A.G. told her
mother that she "didn't want anything to do with [her] bed." Verbatim Report of
Proceedings (VRP) at 494. She did not tell her mother why. Later, in February
2013, A.G. admitted to her mother's fiancee that Zielinski had touched her
inappropriately. She eventually disclosed that Zielinski had sexually assaulted
her three to four nights per week from 2001 to 2009. The sexual assaults took
place in A.G.'s bed.
Zielinski was charged with three counts of first degree child rape-domestic
violence, and one count of second degree child rape-domestic violence. At trial,
A.G. testified that she was in kindergarten when her father started molesting her.
He touched her inappropriately on a regular basis and gradually progressed from
the outside to the inside of her clothing. A.G. testified that she was in third grade
when her father first raped her. She remembers it being very painful, and she
whimpered and bit into a pillow to stay quiet. A.G. also testified about steps she
took to hide the abuse; like doing her own laundry and cleaning blood from her
mattress.
When asked at trial why she had not reported the abuse sooner, A.G.
testified that she first assumed it was normal father-daughter behavior. When she
began to question it, she remained silent because she was afraid no one would
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believe her, or that her father would follow through with threats to hurt her or
other family members if she said anything. RP 414, 443, 451, 461, 479.
When A.G.'s mother testified at trial, the prosecutor questioned her
regarding her conversation about A.G.'s bed that had been in storage:
[Prosecutor:] Okay, so when you were preparing to move you and
[J.Z.] and [A.G.] to the house in Burien, was there a discussion that
you had with [A.G.] about some of the items in the house?
[Griffith:] Yes. I was trying - you know, I was -- we were kind of
excited to be out on our own again, and so I called her. I said, "Hey,
you are going to be able to use your bed set again," because it had
just been in storage, and she said, "I don't want anything to do with
that bed." And I said, "Do you want to talk about it?" And she said,
"No, I'm not ready." And this was on a phone call. And so I let it go.
[Prosecutor:] And did that strike you as odd or unusual at the time?
[Griffith:] It made me sad because I jump to conclusions and I
realized she's - she is carrying a burden that she wasn't ready to
talk to me about.
VRP at 269-70. There was no defense objection to A.G.'s hearsay. Shortly
thereafter, the following exchange occurred:
[Prosecutor]. Okay, now you were talking with her on the
phone; without saying what specifically she said, how would
you describe her demeanor or her tone when you were
talking about this bed set?
[Griffith]. Just very short. No explanation, she just said, "I
don't want anything to do with that bed."
[Defense Counsel]: Objection, hearsay, move to strike.
VRP at 272. The trial court sustained defense counsel's objection and struck the
statement. Later at trial, A.G. testified that upon seeing the bed, "I told my mom I
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didn't want anything to do with my bed." VRP at 494. Following trial, the jury
found Zielinski guilty as charged. Zielinski appeals.
DISCUSSION
We review an ineffective assistance of counsel claim de novo. State v.
White. 80 Wn. App. 406, 410, 907 P.2d 310 (1995). The defendant has the
burden of establishing ineffective assistance of counsel. State v. Humphries. 181
Wn.2d 708, 719-720, 336 P.3d 1121 (2014). To prevail, a defendant must show
that (1) counsel's performance "fell below an objective standard of
reasonableness and (2) there was prejudice, measured as a reasonable
probability that the result of the proceeding would have been different."
Humphries. 181 Wn.2d at 720 (citing Strickland v. Washington. 466 U.S. 668,
687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Judicial review of an attorney's
performance is highly deferential. Strickland. 466 U.S. at 689. The performance
of an attorney "is not deficient ifit can be considered a legitimate trial tactic."
Humphries. 181 Wn.2d at 720 (citing State v. Hendrickson. 129 Wn.2d 61, 77-78,
917 P.2d 563 (1996)).
Zielinski asserts that he received ineffective assistance of counsel
because his attorney failed to object to an instance of hearsay in Griffith's
testimony, and this prejudiced the outcome of trial. The claim fails because even
ifdefense counsel's failure to object was deficient, Zielinski cannot show a
reasonable probability that the error affected the outcome of trial.
Zielinski argues that because the trial hinged on A.G.'s credibility, any
evidence tending to corroborate A.G.'s testimony could have changed the
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outcome of trial. While Griffith's hearsay statement tended to corroborate A.G.'s
testimony that she didn't "want anything to do with [her] bed," Zielinski's
argument that the testimony on that issue tipped the balance on the jury's
assessment of A.G.'s credibility is unpersuasive. The issue was tangential to
whether Zielinski committed the alleged crimes against A.G., so much so that the
subject was not mentioned by either party in closing statements. A.G. testified at
length about the alleged crimes and was subject to cross-examination. The jury
had ample opportunity to weigh her testimony and assess her credibility. On the
record before us, we cannot conclude that there is a reasonable probability that
the outcome of trial would have been different had defense counsel objected to
Griffith's hearsay.
Costs on Appeal
Zielinski argues that we should not impose appeal costs against him
because he is indigent. The State does not request costs in its response brief.
Appellate courts may require an adult offender convicted of an offense to
pay appellate costs. RCW 10.73.160(1). The commissioner or clerk will award
costs to the State if the State is the substantially prevailing party on appeal,
"unless the appellate court directs otherwise in its decision terminating review."
RAP 14.2. A determination of a criminal defendant's indigency is entrusted to the
trial judge whose finding of indigency we respect unless we are shown good
cause not to do so. State v. Sinclair. 192 Wn. App. 380, 393, 367 P.3d 612
review denied. 185 Wn.2d 1034, 377 P.3d 733 (2016). We "give a party the
benefits of an order of indigency throughout the review unless the trial court finds
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the party's financial condition has improved to the extent that the party is no
longer indigent." RAP 15.2(f).
The trial court issued an order finding Zielinski indigent and authorizing
him to appeal in forma pauperis. The trial court has not found that his financial
condition has improved or is likely to improve. We therefore presume that
Zielinski remains indigent. He is 49 years old. His sentence is 25 years, after
which he will be required to register as a sex offender, submit to community
supervision, and pay fees for community supervision. It is unlikely that his
financial condition will improve. Under these circumstances, we conclude that an
award to the State of appellate costs is not appropriate.
Affirmed.
WE CONCUR:
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