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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent,

v.

BRIAN CHADWICK DUBLIN,

Appellant.

No. 72850-4-1

DIVISION ONE

UNPUBLISHED OPINION

FILED: February 29. 2016

Spearman, C.J. —When evaluating whether to grant a motion for postconviction

deoxyribonucleic acid (DNA) testing under RCW 10.73.170, a trial court must presume

that the DNA evidence sought would be favorable to the convicted individual. Because

the record in this case does not reflect that the trial court applied this presumption, we

reverse and remand for the trial court to consider Brian Dublin's request under the

proper standard.

FACTS

On October 8, 2003, at approximately 3:00 a.m., 18-year-old A.B. was asleep in

the home of her mother and stepfather in an isolated, wooded area ofVashon Island.

She awoke to see a man standing in herdark bedroom. The man was holding a knife

and wearing a baseball cap and a dust mask over his mouth. In a low, raspy voice, the

man told A.B. to stay quiet and take off her clothes. He also told her that he had tied up

the rest of her family. The man put his mouth on A.B.'s neck, breasts and vaginal area,

and then proceeded to rape her vaginally.
No. 72850-4-1/2

A.B. was taken to the hospital where her neck, breasts and vaginal area were

swabbed for DNA. Officers took several items from A.B.'s room including the sheets and

pillowcases from the bed, a five foot tall stuffed panda that A.B. said the suspect put his

head on, and a pair of gray underwear that officers believed could have belonged to the

suspect. Analysis of spermfound in the vaginal swab and saliva found in the skin swabs

revealed DNA belonging to a single unidentified male. The other itemsfrom the

bedroom were not tested for DNA.

Aburglary and sexual assault with similar characteristics to that ofA.B. took

place on Vashon Island in 2006 against 12-year-old G.G., and again in 2010 against 16-

year-old E.P. E.P. recognized the assailant as Dublin, at whose house she had

attended a couple of parties and whose young child she had occasionally babysat. A

subsequent search of Dublin's home revealed a notebook containing a list of names,

including A.B.'s full name, G.G.'s initials and E.P.'s first name. ADNA sample taken

from Dublin matched the DNA extractedfrom A.B.'s skin and vaginal swabs and E.P.'s

vaginal swabs.

The State charged Dublin with first degree rape, attempted first degree rape and

first degree burglary with sexual motivation. Ajury convicted Dublin and this court

affirmed his convictionsin an unpublished opinion.1

On October 14, 2014, acting pro se, Dublin filed a motion under RCW 10.73.170

seeking post-conviction DNA testing of the underwear, sheets and stuffed animal from

A.B.'s bedroom. On November 17, 2014, the trial court denied the motion without oral

argument. The trial court's order read as follows:

1State v. Dublin, noted at 175Wn. App. 1013, 2013WL 2919004 (June 10, 2013).

Clerk's Papers (CP) at 40-48.
No. 72850-4-1/3

The Court considered the Defendant's Motion, the case files herein, and

the decision in this case from the Court of Appeals. The motion was

forwarded to the plaintiffState, but no response was received so the Court

assumes that the State had no objection to the Defendant's motion.

However, the Court finds that the defendant has not shown the likelihood

that the DNA evidence would demonstrate the defendant's innocence on a

more probable than not basis.

CP at 108. The State filed a belated response on November 21, 2014, but the record

does not show that itwas reviewed or considered by the trial court. Dublin appeals.

DECISION

RCW 10.73.170(1) allows a convicted person currently serving a prison sentence

to file a motion requesting DNAtesting with the court that entered the judgment of

conviction. The motion must explain "why DNAevidence is material to the identity of the

perpetrator of... the crime" and show that "the DNA evidence would demonstrate

innocence on a more probable than not basis." RCW 10.73.170(2)(b), (3). When

determining if it is likely the DNA evidence would demonstrate innocence, a trial court

must "presume that the DNA evidence would be favorable" to the convicted person.

State v. Crumpton. 181 Wn.2d 252, 258, 332 P.3d 448 (2014). The trial court should

then consider whether the presumably favorable DNA evidence would raise a

reasonable probability the person was not the perpetrator in light of all of the other

evidence presented at trial. Crumpton, 181 Wn.2d at 258.

We review a trial court's decision on a motion for post-conviction DNA testing for

abuse of discretion. State v. Thompson, 173 Wn.2d 865, 870, 271 P.3d 204 (2012). A

trial court abuses its discretion if its decision was reached by applying the wrong legal

standard. State v. Gentry. 183 Wn.2d 749, 764, 356 P.3d 714 (2015).

-3-
No. 72850-4-1/4

Here, there is no indication in the record that the trial court applied the favorable

presumption in ruling on Dublin's motion. In its order, the trial court recited the statutory

language, but made no mention of a presumption offavorability or hypothetical

inferences from an exculpatory test result. Accordingly, we are forced to conclude the

trial court did not apply the proper standard and therefore abused its discretion.

Crumpton. 181 Wn.2d at 263-64. We reverse and remand to the trial court to apply the

correct standard.2

Jp&jA^O^ CO,

WE CONCUR:

2We also note that RCW 10.73.170(2)(a) establishes a procedural predicate to the trial court's

consideration ofDublin's motion. Statev. Riofta. 166 Wn.2d 358, 364, 209 P.3d 467 (2009). That section

requires that:

(2) The motion shall:

(a) State that:

(i) The court ruled that DNA testing did not meet acceptable scientific

standards; or

(ii) DNA testing technology was not sufficiently developed to test the DNA

evidence in the case; or

(iii) The DNA testing now requested would besignificantly more accurate

than prior DNA testing orwould provide significant new information[.]

The trial court made no findings thatthe motion met any ofthese criteria and the parties do not address the issue on appeal. It may bethat Dublin's motion issufficient tosatisfy the statutory predicate. See Riofta at 365-66. Nonetheless, on remand it is incumbent

upon the trial court to explicitly make this finding before considering the substance of the

motion.