       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


STATE OF WASHINGTON,
                                                 No. 68024-2-1
                     Respondent,
                                                 DIVISION ONE
              v.



BRIAN CHADWICK DUBLIN,
                                                 UNPUBLISHED OPINION

                     Appellant.                  FILED: June 10, 2013



       Becker, J. —Brian Dublin appeals his convictions for first degree burglary

and attempted first degree rape of GG, an adolescent girl. Finding the evidence

on these counts sufficient, and finding no fault with the trial court's decision noyo

sever them from similar counts involving two other young women, we affirm. ^
                                                                                        -y.




       According to testimony presented at trial, at about 3:00 a.m. on Octobeio        ?i-^

18, 2003, 18-year-old AB was awakened from sleep in her family home on            -~ rE>"
Vashon Island to find a male intruder in her bedroom. The intruder was holdinja               ':
knife. He raped AB, threatened her not to tell anyone, and then departed. AB

woke her stepfather and disclosed the rape. She was taken to the hospital.

Rape test samples revealed DNA (deoxyribonucleic acid) from an unidentified

male. The case went cold.

       At about 3:15 a.m. on July 2, 2006, 12-year-old GG was awakened from

sleep in her family home on Vashon Island to find a male intruder in her
No. 68024-2-1/2



bedroom. The bedroom had previously belonged to GG's older sister. The

intruder told GG he had already stabbed her sister, grabbed her genital area, and

told her to take off her clothing and bend over. GG escaped and ran to her

parents' bedroom. The intruder fled. Her parents called 911. No suspect was

identified. The case went cold.

      At about 2:00 a.m. on January 10, 2010, 16-year-old EP was awakened

from sleep in her family home on Vashon Island to find a male intruder lying on

top of her in her bed. He threatened to kill her, raped her, and then fled. EP

went to her parents' bedroom and reported the attack. EP was taken to the

hospital. Rape test samples revealed male DNA matching the profile of AB's

attacker in 2003.


       EP named appellant Brian Dublin as a possible suspect. EP was

acquainted with Dublin, then in his late twenties. She had seen Dublin, wearing

a beard and a dark pullover, at a party where she had been drinking on the night

of her attack. During the encounter, EP felt her attacker's beard and saw that he

wore dark clothing. Surveillance footage from a bar that night showed a bearded

Dublin in a dark sweatshirt buying drinks. Dublin had closed his tab at the bar

shortly before EP was raped.

       King County Sheriffs detectives obtained a sample of Dublin's DNA. It

matched the samples taken from both AB and EP. Detectives then searched

Dublin's home. A small notebook was discovered inside a shoe box in a storage

loft near Dublin's bed. The notebook contained a list of names. AB's full name
No. 68024-2-1/3



was at the top of the list. The initials "GG" were midway down the list. EP's full

name was listed last.


       In December 2010, Dublin was presented at a lineup that GG attended.

This was more than four years after her attack. GG identified Dublin as one of

two suspects but was unable to definitively identify him.

       Dublin was charged with three counts of first degree burglary, two counts

of first degree rape as to AB and EP, and one count of attempted first degree

rape as to GG. He was also charged with attempted indecent liberties as to a

fourth young woman, CB, who alleged that Dublin attempted to take her clothes

off while she was drunk at a party. The burglary charges each included an

allegation that the offense was committed for purposes of sexual gratification.

       Before trial, Dublin moved to sever the two counts involving GG. The

court denied the motion.


       A trial lasting 14 days was held in September 2011. Dublin testified the

sexual encounters with AB and EP were consensual liaisons that had taken


place in his truck. He admitted knowing GG's older sister, but he denied any

encounter with GG. He denied owning the notebook or authoring the list of

names.



       The jury convicted Dublin as charged except as to the count involving CB.

A mistrial was declared as to that count.


       Dublin appeals his convictions on the two counts concerning GG.
No. 68024-2-1/4



                          SUFFICIENCY OF THE EVIDENCE

       Dublin contends the State's evidence was inadequate to prove that he

was the perpetrator of the burglary and attempted rape of GG.

       In asking whether evidence is sufficient to sustain a conviction, we review

the evidence in the light most favorable to the State. State v. Drum, 168 Wn.2d

23, 34, 225 P.3d 237 (2010). The relevant question is whether any rational fact

finder could have found the essential elements of the crime beyond a reasonable

doubt. Drum. 168 Wn.2d at 34-35. In claiming insufficient evidence, the

defendant necessarily admits the truth of the State's evidence and all reasonable

inferences that can be drawn from it. Drum, 168 Wn.2d at 35. Direct evidence

and circumstantial evidence are considered equally reliable. State v. Delmarter,

94 Wn.2d 634, 638, 618 P.2d 99 (1980).

       Applying these standards, we conclude the State's evidence linking Dublin

to the crimes against GG was sufficient. The foot tracks detectives found outside

GG's house matched Dublin's shoe size. GG reported to detectives that her

attacker smelled of cigarette smoke, and Dublin was a smoker. The attacker's

remarks to GG demonstrated that he knew GG had a sister, and Dublin's social

acquaintance with GG's older sister was established at trial. Dublin was familiar

with the location of GG's home, having picked up the sister to attend parties in

years before. The list of names in the small notebook found in Dublin's home

included GG's initials.
No. 68024-2-1/5



       Dublin was one of two individuals GG picked out of a lineup four years

after the attack. His dark hair and pale complexion were consistent with the

description GG gave of the man whose face she briefly saw in the dark room

during the attack. A detective watching Dublin during the lineup observed him

"blink and swallow hard" when he heard the lines he would have to repeat out

loud: "Shut up or I'm going to fucking kill you," and "Your sister is all stabbed up."

GG testified that hearing Dublin repeat the statements "brought back a lot" and

triggered a fear response that was greater than when the other suspects in the

lineup said the same words.

       Dublin does not assign error to the court's pretrial ruling under Evidence

Rule 404(b) that the jury could properly consider the three attacks as probative of

a common identity because of the similarities between them. All three attacks

were home invasions. All three victims were asleep in their beds between

approximately 2:00 and 3:15 a.m. All three lived in isolated, wooded areas on

Vashon Island in homes that were customarily left unlocked at night. All three

were included on the list of names found in Dublin's house. The order their


names appeared on the list was consistent with the chronological order in which

their attacks occurred. Similar to AB's assailant who brandished a knife, GG's

assailant implied possession of a knife by saying he had "stabbed up" her sister.

AB and GG were both told to "shut up." In the incidents involving AB and GG,

the assailant threatened the victim by saying he had already harmed members of

the victim's family; he instructed them to take their shirts and pants off before the
No. 68024-2-1/6



rape was to begin; and he spoke in a deep, rough whisper, described by AB as

"raspy" and by GG as "husky." These numerous similarities provide further

evidence identifying Dublin as the intruder who attempted to rape GG.

       Dublin submits it is significant that in GG's case there was no penetration

and no DNA evidence directly linking Dublin to the attack. This disparity is not

significant. GG's attacker told her to take her clothes off and "bend over." The

jury could reasonably infer that the only reason there was no penetration or DNA

evidence in GG's case was because she managed to escape. The minor

differences in how the three victims described their attacks do not undermine the

substantial evidence identifying Dublin as the perpetrator of the burglary and

rape of GG. We conclude the evidence was sufficient.



                   INEFFECTIVE ASSISTANCE OF COUNSEL


       Before trial, Dublin moved to sever the charges involving GG. The court

denied the motion. Dublin's counsel did not renew the motion "before or at the


close of all the evidence," as permitted by Criminal Rule 4.4(a)(2). Failure to

timely renew the motion waives the issue for purposes of appeal. CrR 4.4(a)(2);

State v. Brvant, 89 Wn. App. 857, 864, 950 P.2d 1004(1998). review denied. 137

Wn.2d 1017 (1999). Dublin contends this lapse deprived him of his constitutional

right to effective assistance of counsel.

       To establish ineffective assistance of counsel, a party must show both that

counsel's performance was objectively deficient and that it resulted in prejudice.
No. 68024-2-1/7



Strickland v. Washington. 466 U.S. 668, 690-92, 104 S. Ct. 2052, 80 L. Ed. 2d

674 (1984): In re Pet, of Coe. 175 Wn.2d 482, 490, 286 P.3d 29 (2012). The

failure by Dublin's attorney to renew the motion to sever does not support an

ineffective assistance claim because Dublin cannot show that the motion would

properly have been granted had it been made. State v. Price. 127 Wn. App. 193,

203, 110 P.3d 1171 (2005), affd, 158Wn.2d630, 146 P.3d 1183(2006).

         Severance is discretionary. State v. Bythrow, 114Wn.2d 713, 717, 790

P.2d 154 (1990). A motion to sever should be granted only if the defendant

shows that a trial involving the combined counts would be so manifestly

prejudicial as to outweigh the concern for judicial economy. Bythrow, 114Wn.2d

at 718. In determining whether the potential for prejudice requires severance, a

trial court must consider (1) the strength of the State's evidence on each count,

(2) the clarity of defenses as to each count, (3) court instructions to the jury to

consider each count separately, and (4) the admissibility of evidence of the other

charges even if not joined for trial. Russell, 125 Wn.2d at 62.

         First, the State produced strong evidence independently linking Dublin to

each attack. Russell. 125 Wn.2d at 62. Although there was no DNA evidence

from the attack on GG, the circumstantial evidence was ample as discussed

above.


         Second, Dublin absolutely denied having a sexual encounter with GG,

distinguishing his defense to the charges involving her from his defense, with

regard to the two rape victims, that sex was consensual. Third, the court
No. 68024-2-1/8



properly instructed the jury to consider each count separately. Showing that they

took this instruction seriously, the jury deadlocked on the count of attempted

indecent liberties involving CB.

       Fourth, the court ruled the evidence concerning GG, AB, and EP was

cross admissible under Evidence Rule 404(b) because it went to the identity of

the assailant. Therefore, even if the charges involving GG had been severed,

the evidence concerning AB and EP could have been introduced at a separate

trial of those charges.

       In short, the potential for prejudice was not so great as to outweigh the

concern for judicial economy. Because Dublin cannot show that the motion to

sever would have been granted had it been renewed, there is no merit to his

claim of ineffective assistance of counsel.

       Affirmed.




                                                ^JteCl
WE CONCUR:




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