      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MICHAEL ZIELINSKI,                                UNPUBLISHED OPINION                  t3*              =£r~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
No. 73517-9-1/2


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
No. 73517-9-1/3


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
No. 73517-9-1/4


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
No. 73517-9-1/5


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
No. 73517-9-1/6


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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