                                                                                               Filed
                                                                                         Washington State
                                                                                         Court of Appeals
                                                                                          Division Two

                                                                                         February 22, 2017




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                            DIVISION II
    STATE OF WASHINGTON,                                               No. 48470-6-II

                                   Respondent,

           v.

    DAVID DEVON JACKSON,                                          UNPUBLISHED OPINION

                                   Appellant.

          WORSWICK, P.J. — David Jackson appeals from his second degree rape conviction,

asserting that his defense counsel was ineffective for (1) failing to consult with an independent

expert witness before trial and (2) failing to object to hearsay testimony. We affirm.

                                                 FACTS

          A.O.1 was sixteen years old when her boyfriend coerced her to engage in prostitution. On

August 20, 2014, when A.O. was eighteen years old, she was approached by a man sitting in his

car at a Tacoma gas station. A.O. recognized the man, who was later identified as Jackson, from

a social media website she used to find prostitute customers. A.O. entered Jackson’s car, and

Jackson drove south on Interstate 5.




1
    We use the victim’s initials to protect her interest in privacy.
No. 48470-6-II



       According to A.O., Jackson became dominant and controlling during the drive. A.O. told

Jackson she wanted to get out of the car but he refused, stating that “he owned [her].” Report of

Proceedings at 41. Jackson took her cell phone from her. Jackson gave her pills and sexually

assaulted her multiple times during the drive before letting her out of the car in Vancouver,

Washington.

       A.O. went to a nearby gas station where an employee called 911 for her. A.O. was

transported to a hospital. While at the hospital, A.O. was examined by Jillian Zeisler, a sexual

assault examination nurse. Zeisler collected blood, urine, and potential DNA (deoxyribonucleic

acid) samples from A.O. A.O. detailed the sexual assault allegations to Zeisler. Based on A.O.’s

allegations, the State charged Jackson with three counts of first degree rape and one count of first

degree kidnapping with sexual motivation.

       Before trial, the State filed a motion in limine to admit statements A.O. had made to

Zeisler under ER 803(a)(4), the medical diagnosis or treatment exception to the hearsay rule.

Defense counsel requested a hearing to determine the admissibility of A.O.’s statements to

Zeisler. After argument on the motion, the trial court ruled that some of A.O.’s statements were

admissible under ER 803(a)(4).2

       At trial, Zeisler testified about some of the statements A.O. had made to her during the

sexual assault examination. Zeisler stated that A.O. complained of pain on the right side of her

head due to being hit against a window and being scratched by Jackson’s nails; Zeisler noted that




2
 As discussed below, Jackson did not designate the December 2 pretrial hearing for the record
on appeal. The facts are gleaned from court clerk minutes.

                                                 2
No. 48470-6-II



she saw three separate abrasions around A.O.’s chin and neck area. Zeisler also noted that

A.O.’s genitalia appeared raw and excoriated. Zeisler testified that A.O. had stated her vagina

was too sore to allow Zeisler to examine her with a speculum. Zeisler further noted that A.O.

was experiencing anal spasms. Zeisler concluded that A.O.’s injuries were consistent with her

account of what had happened to her. But on cross-examination, Zeisler clarified that she could

not determine whether A.O. had internal injuries to her vagina consistent with her allegations due

to A.O.’s decision to decline being examined with a speculum.

       David Stritzke, a forensic scientist at the Washington State Patrol Crime Laboratory,

testified that semen found on A.O.’s jacket matched Jackson’s DNA. The trial court granted the

State’s request for second degree rape jury instructions as lesser-included charges to the three

counts of first degree rape. The jury returned verdicts finding Jackson not guilty of three counts

of first degree rape and not guilty of first degree kidnapping with sexual motivation, but guilty of

one count of second degree rape.3 Jackson appeals.

                                            ANALYSIS

       Jackson contends that his defense counsel rendered constitutionally ineffective assistance

for failing to consult with an independent expert witness before trial and for failing to object to

testimony he contends was inadmissible hearsay. We disagree.




3
  The jury returned a verdict finding Jackson not guilty of one count of second degree rape, and it
left the verdict form blank for another count of second degree rape.

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No. 48470-6-II



                                     I. STANDARD OF REVIEW

       We review ineffective assistance of counsel claims de novo. State v. Thach, 126 Wn.

App. 297, 319, 106 P.3d 782 (2005). To demonstrate ineffective assistance of counsel, Jackson

must show both that (1) his counsel’s performance was deficient in that it fell below an objective

standard of reasonableness based on all the circumstances and (2) the deficient performance

resulted in prejudice in that there was reasonable possibility that the outcome of his trial would

have differed but for counsel’s deficient performance. Strickland v. Washington, 466 U.S. 668,

687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Reichenbach, 153 Wn.2d 126, 130, 101

P.3d 80 (2004). If Jackson fails to demonstrate either showing, we need not inquire further.

State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996).

       We strongly presume that counsel is effective. Reichenbach, 153 Wn.2d at 130. To

overcome this presumption, the defendant bears the burden of “establishing the absence of any

‘conceivable legitimate tactic explaining counsel’s performance.’” State v. Grier, 171 Wn.2d 17,

42, 246 P.3d 1260 (2011) (emphasis added) (quoting Reichenbach, 153 Wn.2d at 130). If the

defendant’s claim rests on evidence or facts not in the existing trial record, filing a personal

restraint petition is the defendant’s appropriate course of action. Grier, 171 Wn.2d at 29; State v.

McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).

                    II. CONSULTATION WITH INDEPENDENT MEDICAL EXPERT

       Jackson first contends that defense counsel was ineffective for failing to consult with an

independent medical expert before trial, arguing that this failure prejudiced his case because,

absent such consultation, his counsel could not effectively cross-examine Zeisler. On the record



                                                  4
No. 48470-6-II



before us, Jackson cannot demonstrate that his counsel was constitutionally ineffective on this

basis.

         Fatal to Jackson’s first claim of ineffective assistance of counsel is the absence of any

evidence in the record that defense counsel failed to consult with an independent expert witness

before trial. That defense counsel did not name an independent medical expert on the defense

witness lists does not show that counsel failed to consult with one before trial. It is conceivable

that defense counsel consulted with such a potential expert witness but decided not to call the

witness to testify at trial because the witness would not provide any evidence favorable to the

defense.

         Moreover, even if the record definitively showed that defense counsel had failed to

consult with an independent medical expert before trial, Jackson cannot demonstrate any

prejudice flowing from that failure. There is nothing in the record to support Jackson’s claim

that consultation with an independent medical expert would have provided information

beneficial to defense counsel’s cross-examination of Ziegler. In this regard, Jackson’s reliance

on In re Pers. Restraint of Brett, 142 Wn.2d 868, 16 P.3d 601 (2001), is unavailing. There, our

Supreme Court held that defense counsel was ineffective for failing to adequately investigate the

defendant’s mental and physical impairments and for failing to present competent expert

testimony regarding the same. In re Brett, 142 Wn.2d at 880. But In re Brett is clearly

distinguishable from the present case because our Supreme Court’s holding in In re Brett relied

on the postconviction reference hearing testimony of several medical professionals. 142 Wn.2d

at 874-80.



                                                   5
No. 48470-6-II



       Because Jackson’s assertions that (1) his defense counsel failed to consult with an

independent medical expert and that (2) such consultation would have assisted cross-examination

so as to create a reasonable likelihood of affecting the jury’s verdict are speculative and without

any support in the record, he fails to demonstrate ineffective assistance on this ground.

                                            III. HEARSAY

       Next, Jackson contends that his defense counsel was ineffective for failing to object to

testimony that he asserts was inadmissible hearsay.4 Specifically, Jackson argues that his

defense counsel was ineffective for failing to object to Zeisler’s testimony regarding certain

statements A.O. had made during the sexual assault examination. Again, we disagree.

       “Hearsay” is defined as “a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”

ER 801(c). Hearsay is not admissible “except as provided by [evidentiary] rules, by other court

rules, or by statute.” ER 802. Statements made for medical diagnosis and treatment are

admissible as exceptions to the hearsay rule under ER 803(a)(4).5 “A party demonstrates a

statement to be reasonably pertinent [to diagnosis or treatment] when (1) the declarant’s motive

in making the statement is to promote treatment and (2) the medical professional reasonably




4
  Jackson does not assign error to his defense counsel’s alleged failure to object to hearsay
testimony. However, it is clear from the context of his argument that he is raising the issue.
5
  Specifically, ER 803(a)(4) provides a hearsay exception for “[s]tatements made for purposes of
medical diagnosis or treatment and describing medical history, or past or present symptoms,
pain, or sensations, or the inception or general character of the cause or external source thereof
insofar as reasonably pertinent to diagnosis or treatment.”

                                                   6
No. 48470-6-II



relied on the statement for purposes of treatment.” State v. Williams, 137 Wn. App. 736, 746,

154 P.3d 322 (2007).

        Although Jackson claims that his defense counsel was ineffective for failing to object to

Zeisler’s hearsay testimony, the record shows that defense counsel had requested a pretrial

hearing to address the State’s motion in limine to admit such testimony under ER 803(a)(4).

Minutes from the pretrial hearing show that Zeisler testified regarding A.O’s statements, counsel

for the defense and the State argued about the admissibility of those statements, and the trial

court ruled in favor of admissibility.

        Jackson, however, did not designate a transcription of this pretrial hearing for the record

on appeal. See State v. Tracy, 158 Wn.2d 683, 691, 147 P.3d 559 (2006) (Appellant has the

burden of providing adequate record for review.). We therefore cannot determine on the record

before us whether the hearsay statements now challenged on appeal were addressed during the

trial court’s ruling on the State’s motion in limine and, if so, the trial court’s reasons for

admitting or excluding such statements. Accordingly, we cannot determine whether defense

counsel performed deficiently for failing to challenge the admissibility of such statements at trial.

Because Jackson’s claim rests on evidence not in the record on appeal, his appropriate course of

action would be to file a personal restraint petition. Grier, 171 Wn.2d at 29; McFarland, 127

Wn.2d at 335.

        Because Jackson fails to meet his burden of producing a record sufficient to review

whether his defense counsel was ineffective for failing to object to certain hearsay testimony, he




                                                   7
No. 48470-6-II



cannot demonstrate ineffective assistance on this basis. Accordingly, we affirm Jackson’s

conviction for second degree rape.

        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.



                                                                      Worswick, P.J.
 We concur:



 Johanson, J.




 Sutton, J.




                                                  8
