      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON




 STATE OF WASHINGTON,                                  No. 73703-1-1
                                                                                   t—     vu


                      Respondent,                      DIVISION ONE
                                                                                   c-.}

               v.



 DERRICK ALLEN KOLANOWSKI,                             UNPUBLISHED


                      Appellant.                       FILED: January 30. 2017




       Cox, J. — Derrick Kolanowski appeals his conviction for rape and unlawful

imprisonment. Because he fails in his burden to overcome the presumption that

his trial counsel was effective, we reject his ineffective assistance of counsel

claim. We affirm.

       On the night of February 7, 2014, Kolanowski arranged through his

acquaintance Tim Powell to buy marijuana from a woman named S.W.-H.

Powell and S.W.-H were roommates at the time. Powell told Kolanowski to stop

by the trailer where S.W.-H. and Powell lived for the sale.

       Later that night, a man arrived at the trailer around 10:30 or 11:00 p.m.

S.W.-H. was alone at the time. She let him in and sold him the marijuana. The

man did not leave despite her repeated requests for him to do so. Instead, he

sat down at a table and smoked the marijuana. He also offered to pay S.W.-H.

for sex. S.W.-H. repeatedly refused.
No. 73703-1-1/2


      When the man finally arose to leave, he claimed to have trouble opening

the door. When S.W.-H. went to assist him, the man placed her in a chokehold

and punched her when she resisted. S.W.-H. continued to struggle with the

assailant. Nevertheless, he sexually assaulted her and repeated his sexual

assaults overnight until sometime the next morning. He left the scene around

8:00 or 8:30 a.m. the next morning.

      S.W.-H. went to the hospital that morning, where police responded to her

report of the sexual assaults. Police investigated the matter, interviewing S.W.-H

and others. Police also gathered evidence from the crime scene.

       Based on this investigation, police arrested Kolanowski at his workplace.

At the time of his arrest, he was wearing a black sweatshirt. Police seized this

sweatshirt as evidence, and a crime lab tested it for DNA.

      The State charged Kolanowski with rape in the second degree and

unlawful imprisonment of S.W.-H., allegedly occurring on or about February 8,

2014. His primary defense at trial was identity, claiming he was elsewhere at the

time of the crimes. He also maintained that the blood on his sweatshirt at the

time of his arrest was due to injury at work. A jury convicted him as charged.

       Kolanowski appeals.

                  INEFFECTIVE ASSISTANCE OF COUNSEL

       Kolanowski argues that he was denied effective assistance of trial counsel

on two grounds. First, he argues his counsel failed to authenticate extrinsic

impeachment evidence. Second, he argues his counsel failed to object to
No. 73703-1-1/3



inadmissible DNA "match" testimony. We hold that he fails to meet his burden to

show counsel was ineffective in either respect.

      The Sixth Amendment to the United States Constitution guarantees a

criminal defendant's right to not only counsel, but to counsel whose assistance is

effective.1 The Washington Constitution provides an analogous right in article 1,

section 33.2 The United States Supreme Court explained in Strickland v.

Washington that the benchmark of this right is "whether counsel's conduct so

undermined the proper functioning of the adversarial process that the trial cannot

be relied on as having produced a just result."3

      The defendant demonstrates the ineffectiveness of his counsel by meeting

a two-part burden. He must first show that counsel's performance was

unreasonably ineffective and, second, that such ineffectiveness prejudiced the

results of his case.4 Because he must meet both elements, the court need not

address both ifeither is found wanting.5

      The defendant shows that his counsel's representation "fell below an

objective standard of reasonableness" based on the relevant circumstances and

the "prevailing professional norms."6 So long as the representation was


      1 Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984).

       2 State v. Benn, 120 Wn.2d 631, 663, 845 P.2d 289 (1993).

       3 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

       4 Id, at 687.
       5 id, at 697.

       6 Id. at 688.
No. 73703-1-1/4



reasonable, this court should neither "interfere with the constitutionally protected

independence of counsel [nor] restrict the wide latitude counsel must have in

making tactical decisions."7 Thus, this court conducts this inquiry "from counsel's

perspective at the time" of trial and must strongly presume that counsel's conduct

was reasonably effective.8 The defendant can overcome that presumption by

showing "there is no conceivable legitimate tactic explaining counsel's

performance."9 But the defendant must show this or any other deficiency based

on the record established in the proceedings below.10

      The defendant seeking to overturn his conviction must also show a

"reasonable probability that, absent the errors, the factfinder would have had a

reasonable doubt respecting guilt."11 The defendant need not show that he

would more likely have been acquitted than not absent the relevant error.12 He

must also show that that probability was "substantial, not just conceivable."13

Again, he must do so based on the record below.14




      7 id at 689.
      8 Id,; see also State v. McFarland, 127 Wn.2d 322, 337, 899 P.2d 1251
(1995).

      9 State v. Carson. 184 Wn.2d 207, 218, 357 P.3d 1064 (2015).

       10 McFarland. 127 Wn.2d at 337.

       11 Strickland. 466 U.S. at 695.

       12 id, at 693.
      13 Harrington v. Richter. 562 U.S. 86. 112, 131 S. Ct. 770, 178 L.Ed. 2d
624(2011).

       14 McFarland, 127 Wn.2d at 337.
No. 73703-1-1/5


       Determining whether counsel provided ineffective assistance is a mixed

question of law and fact.15 We review de novo whether a defendant received

ineffective assistance of counsel.16

                  Authenticating Extrinsic Impeachment Evidence

       Kolanowski first argues that his trial counsel's failure to secure a witness

to authenticate a screenshot of a Facebook post allegedly made at the time of

the rape was deficient performance. Specifically, he claims this evidence would

have impeached S.W.-H.'s credibility by showing she had access to her phone

and was not within her attacker's grasp at the time of the sexual assaults. We

hold that this record fails to support the claim that counsel's performance was

deficient.


       The issue is whether counsel's failure to secure a witness to authenticate

the time stamp on a March 2015 screenshot of a Facebook page was objectively

unreasonable. In deciding this question, we are confined to the record on appeal

in ascertaining the relevant facts.

       This record shows that S.W.-H testified at trial that she was unable to

contact anyone outside her trailer during the sexual assaults of February 8, 2014.

That was because she was not close to her phone. She also testified that she

could not escape from the assailant because he held her down.

       During pretrial motions, the State sought to exclude Facebook records that

lacked foundation. Counsel for Kolanowski sought to admit a March 2015



       15 State v. Jones, 183 Wn.2d 327, 338, 352 P.3d 776 (2015).

       16 id,; State v. Cross. 156 Wn.2d 580, 605, 132 P.3d 80 (2006).
No. 73703-1-1/6


screenshot of what purported to be a 2:49 a.m., February 8, 2014 record. The

record was purported to be a "liking [by S.W.-H of] a photograph of—posted by

[her]—[a] friend of a football player in a tutu." The relevance of this post was to

undercut the credibility of S.W.-H's testimony that she did not have access to her

phone at 2:49 a.m. on February 8, 2014.

       The focus of the arguments centered on the foundation required to prove

that the 2:49 a.m. time shown on the March 2015 screenshot was the same time

S.W.-H's device liked the posting by her friend on February 8, 2014.

       The parties appeared to acknowledge that Facebook has a privacy policy

disallowing access to its records other than by duly authorized law enforcement

officers. A Facebook website sets forth the protocols for this option. Thus, it

appears that counsel, as opposed to law enforcement officers, could not pursue

this option.

       The discussion moved to another option, a judicial subpoena issued by

the trial court. But it appears that Facebook, headquartered in California, could

ignore or delay responding to a subpoena issued by a Washington trial court.

       Counsel established that he timely sought the cooperation of the State in

pursuing information from Facebook before trial. But this was without success

because the law enforcement officer tasked with serving the subpoena never did

so. The trial court then ordered the State to put counsel in contact with someone

who knew what needed to be done to obtain information from Facebook.

Nothing in this record shows what took place in response to this directive. We

decline to speculate about what took place after the court's directive to the State.
No. 73703-1-1/7



We also decline to speculate what a successful inquiry of Facebook would have

shown on the authentication issue of timing.

        Near the end of the presentation of witnesses, counsel indicated he would

explore the possibility of having his investigator testify about her experience with

Facebook posts. However, no such testimony followed. We must presume

counsel decided that such testimony would not be helpful.

        During closing argument, neither side addressed this Facebook issue.

Rather, counsel for Kolanowski focused on other challenges to the victim's

credibility.

        It is clear from our review of this record on appeal that counsel sought

admission of the March 2015 screenshot to undermine S.W.-H's testimony about

her inability to obtain access to her phone because her assailant held her down

during the sexual assaults of February 8, 2014. If she "liked" a post at 2:49 a.m.

on that date, the time stamp on the screenshot could have been relevant to her

credibility.

        But there is neither evidence of what authentication evidence of timing

would prove or what more counsel could have done to obtain this authentication

evidence under the circumstances. In sum, on this record, Kolanowski fails in his

burden to overcome the presumption that counsel provided effective assistance.

He has failed to show counsel's performance was not objectively reasonable.

        The cases Kolanowski cites confirm this conclusion. State v. Thomas17 is

instructive. In that case, defense counsel had called a witness to offer expert



        17 109 Wn.2d 222, 229-30, 743 P.2d 816 (1987).
No. 73703-1-1/8


testimony showing that Kerry Thomas could not have formed the intent

necessary to sustain her conviction.18 The trial court declined to qualify the

proffered expert because she was only a trainee in her profession.19 The

verbatim transcript from the trial, quoted at length in the opinion, "demonstrate[d]

that defense counsel was unaware of his 'expert's' lack of qualifications."20 The

supreme court characterized this as a "fail[ure] to conduct appropriate

investigations" rather than a strategic choice.21

       Division Two of this court considered the related question whether a

defense attorney acts unreasonably when she fails to satisfy the procedural

requirements to admit crucial evidence in State v. Horton.22 Thomas Horton had

been convicted of raping and molesting a child.23 A mandated reporter had

informed Child Protective Services (CPS) that the child, S.S., might be a victim of

abuse.24 A doctor with CPS found penetrating trauma to S.S.'s hymen.25 But

S.S. gave conflicting accounts to the doctor and a forensic investigator on the

cause of that trauma.26 S.S. told the investigator she had been having sexual


       18 id,
       19 Id, at 229.
       20 id, at 231.

       21 id, at 230.
       22 116 Wn. App. 909, 68 P.3d 1145 (2003).

       23 id, at 910.
       24 id, at 911.
       25 Id,

       26 id,

                                              8
No. 73703-1-1/9


intercourse with a boy other than the defendant.27 She also told the doctor that

Horton had sexually abused her and that she had not been sexually active with

anyone else.28 The record in the case evidenced the precise content of these

inconsistent statements.29

      Confronted with these conflicting accounts, CPS concluded that the

allegations were unfounded.30 But the State charged Horton with rape and child

molestation. During cross-examination at trial, Horton's attorney asked S.S. if

she had engaged in sexual activity with anyone beside Horton.31 S.S. answered

no, and defense counsel did not challenge her response.32

       Later, defense counsel attempted to call the forensic investigator and

S.S.'s childhood friend so that they might relate S.S.'s statements about sexual

activity with her boyfriend.33 But counsel did not comply with ER 613(b) because

he failed to give S.S. "an opportunity to explain or deny her pretrial statements by

calling them to [her] attention while [she] was on the stand, or by arranging for




       27 id, at 913.
       28 id, at 911.
       29 id, at 913
       30 id, at 911.

       31 id, at 913.
       32 id,
       33 Id. at 914.
No. 73703-1-1/10


[her] to remain in attendance after testifying."34 On this basis, the trial court

excluded the testimony.35 The jury found Horton guilty.36

       Horton appealed, arguing that his counsel had rendered deficient

assistance by failing to provide a proper foundation for the admission of S.S.'s

prior inconsistent statements.37 Division Two of this court agreed, concluding

that the record provided no suggestion that counsel's non-compliance with ER

613(b) supported some "strategy or tactic designed to further [Horton's]

interests."38 Instead, the court observed that counsel had sought to impeach

S.S.'s testimony with extrinsic evidence but had failed to lay the proper

foundation.39 The court concluded that procedural non-compliance "was entirely

to Horton's detriment; that compliance with ER 613(b) would have been only to

his benefit."40

       The Horton court discussed two cases in the Indiana Court of Appeals,

Ellvson v. State41 and Wright v. State.42 In the first, the trial court had convicted




       34 id, at 916.
       35 id, at 914.

       36 id, at 912.
       37 id,
       38 id, at 917.
       39 id, at 916-17.

       40 id,
       41 id, at 923; Ellvson v. State, 603 N.E.2d 1369, 1371 (1992).
       42 581 N.E.2d 978 (1991).

                                              10
No. 73703-1-1/11



Matthew Ellyson of raping his wife and burglarizing her home.43 The case record

indicated that when authorities conducted rape exams soon after the alleged

incident, they found the results "negative as to sexual intercourse that evening."44

Defense counsel attempted to introduce the exam results during the state

investigator's testimony at trial but failed to do so.45

       On appeal, Ellyson argued that his attorney had acted incompetently by

failing to "produce the witnesses necessary to authenticate and show the

relevancy of" the rape exams.46 The reviewing court rejected the notion that

such failure was "merely the result of poor strategy or bad tactics."47 Rather, the

decision to introduce the rape exam results was itself a "valid strategic decision"

but one executed ineffectively.48 That "gaffe" in execution rendered the

assistance of counsel objectively unreasonable.49

       In Wright, the second Indiana case, the state charged Russell Wright with

child molestation.50 At trial, defense attempted to call a witness to testify to

statements given by the victim, inconsistent with her allegations of molestation.51


       43 Ellvson, 603 N.E.2d 1369.

       44 id, at 1372.
       45 id,

       46 id, at 1373.
       47 Jd, at 1374.

       48 id,
       49 id, at 1374-75.
       50 581 N.E.2dat978.

       51 Id. at 979.


                                              11
No. 73703-1-1/12


But, as in Horton, the trial court excluded this testimony because defense

counsel had failed to first cross-examine the witness as to these statements.52

Defense counsel made an offer to prove at which time the witness testified that

the victim had admitted to fabricating her accusation.53 Reversing the conviction,

the appellate court characterized defense counsel's failure to comply with

procedure as a "blunder[]."54

       In all these cases, the reviewing court had a record clearly establishing

what the relevant evidence would show, such as the results of the rape exam in

Ellyson or the contents of the offered testimony in the other cases. In all, the

defense counsel actually acted to introduce the relevant evidence at trial, rather

than merely discussing its possible admission with the court. In each, defense

counsel failed to act in an objectively reasonable way that led to exclusion of the

evidence.


      This case is different. Authentication of the Facebook timestamp was at

issue. Without proper authentication the post was not relevant to the victim's

credibility. But we simply cannot determine from this record what evidence the

timestamp would have provided.

       Moreover, this record does not show any unreasonable failure to gain

admission of the evidence. Rather, this record shows that counsel took

reasonable steps to gain admission of the evidence. In observing the



       52 id,
       53 JdL at 979-80.

       54 Id. at 980.


                                            12
No. 73703-1-1/13


presumption of effective assistance of counsel, we cannot discount that counsel

may have ultimately decided that authentication of the Facebook record would

not have advanced the defense case. In short, Kolanowski has failed in his

burden to show deficient performance of counsel. Accordingly, we need not

reach the other prong of the test: prejudice.

                              DNA "Match" Testimony

       Kolanowski next argues that his trial counsel was ineffective for failing to

object when a forensic scientist for the State testified that the blood on

Kolanowski's sweatshirt cuff "matched" Kolanowski's blood sample. Specifically,

he contends this evidence was inadmissible without the scientist also providing a

probability estimate. We hold that he has failed to overcome the presumption

that counsel was effective.

       "[W]here the defendant claims ineffective assistance based on counsel's

failure to challenge the admission of evidence," we apply a modified three-part

version of the Strickland test.55 Under this test:

       the defendant must show (1) an absence of legitimate strategic or
       tactical reasons supporting the challenged conduct, (2) that an
       objection to the evidence would likely have been sustained, and (3)
       that the result of the trial would have been different had the
       evidence not been admitted.1561

       The first element is at issue here. Megan Inslee, a forensic scientist from

the State's crime lab, testified to DNA testing done on various items of evidence



       55 State v. Saunders. 91 Wn. App. 575, 578, 958 P.2d 364 (1998) (internal
citations omitted); see State v. Hendrickson. 129 Wn.2d 61, 80, 917 P.2d 563
(1996); McFarland. 127 Wn.2d at 336-37.

       56 id,

                                             13
No. 73703-1-1/14


collected by police during their investigation of the crimes. For certain tests, she

testified both to whether there was a "match" between items tested and known

blood samples and the probability estimates whether the same genetic profile

would appear in the population. But neither her testimony nor her lab report

included a probability estimate for the DNA test on the blood sample found on

Kolanowski's sweatshirt that he was wearing at the time of arrest. Kolanowski

argues that counsel either should have objected to this incomplete testimony or

moved to exclude it once this witness testified. He argues the failure to do so

was objectively unreasonable. We disagree.

       Whether and when to object are classic examples of trial strategy.57 Thus,

the issue is whether counsel had any "legitimate strategic or tactical reason[]" for

failing to seek exclusion of the "match" testimony.58

       The State correctly argues that counsel may have determined it strategic

to let the DNA evidence of a match to Kolanowski to go unchallenged so the jury

would believe that the blood on the sweatshirt was Kolanowski's. This is

consistent with the defense's theory that Kolanowski injured himself at work.

This also fits within the defense of identity, attempting to place Kolanowski

elsewhere at the time of the crimes.

       Had counsel objected based on the incomplete evidence, it is likely the

court would have sustained the objection based on the controlling law that

Kolanowski cites in this appeal. Because the forensic scientist had already



       57 See State v. Madison. 53 Wn. App. 754, 763, 770 P.2d 662 (1989).

       58 McFarland. 127 Wn.2d at 336.


                                             14
No. 73703-1-1/15


testified to probability estimates for the other DNA tests, there is no reason to

believe that she could not have also provided the missing evidence for the DNA

test on Kolanowski's sweatshirt. Thus, an objection was unlikely to have

advanced the defense case.


       Alternatively, in the unlikely event that the court would have admitted the

evidence without the probability estimate after a proper objection, the jury could

have concluded that the blood was S.W.-H.'s. That would have been highly

prejudicial to the defense, as there was no other DNA evidence definitively

linking Kolanowski to the victim.

       Kolanowski counters that the trial court might have excluded all of Inslee's

testimony regarding the blood. For the reasons we already discussed, that was

highly unlikely, on this record.

       In sum, Kolanowski fails to meet his burden under the first prong of the

controlling test to show the absence of legitimate strategic or tactical reason for

counsel's choice not to exclude the incomplete evidence in this case.

       Having failed to meet the first prong of the three part test, we need not

consider the remaining prongs of Kolanowski's claim. He has failed to overcome

the presumption of effective assistance of counsel.

                                      COSTS

       Kolanowski argues that the court should decline to award the State

appellate costs should he not prevail. We agree.




                                             15
No. 73703-1-1/16


       RCW 10.73.160(1) gives appellate courts discretion to decline to impose

appellate costs on appeal.59 Under State v. Sinclair, there is a presumption that

indigency continues unless the record shows otherwise.60

       Here, the trial court found Kolanowski "unable by reason of poverty to pay

for any of the expenses of appellate review." Kolanowski's conviction,

incarceration, and resultant loss of meaningful income make him further unable

to pay such costs and expenses. Nothing in this record overcomes the

presumption of Kolanowski's indigence. Thus, an award to the State for

appellate costs is inappropriate under these circumstances.

      The State cites numerous cases in rebuttal but none are persuasive. In all

three cases, the defendants challenged the constitutionality of cost statutes.61

Two of these cases concerned the imposition of mandatory and not discretionary

fees in cases where the defendant had failed to show his indigence.62

       Here, Kolanowski proved his indigency as the trial court found in its order

of indigency. He does not challenge the constitutionality of a cost statute but

merely argues that this court should use its statutory discretion to decline an

award of costs. We do so.




       59 State v. Nolan, 141 Wn.2d 620, 629, 8 P.3d 300 (2000).

       60 192 Wn. App. 380, 393, 367 P.3d 612 (2016).
       61 State v. Blank, 131 Wn.2d 230, 233, 930 P.2d 1213 (1997); State v.
Shelton, 194 Wn. App. 660, 666, 378 P.3d 230 (2016); State v. Stoddard, 192
Wn. App. 222, 226, 366 P.3d 474 (2016).
       62 Shelton, 131 Wn. App. at 669; Stoddard. 192 Wn. App. at 225.

                                            16
No. 73703-1-1/17



       We affirm the judgment and sentence. We also deny costs of appeal to

the State.


                                                      Cc&cs-
WE CONCUR:




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