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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UNPUBLISHED OPINION FILED: February 29. 2016 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. —Whenevaluating whether to grant a motion forpostconviction 

### deoxyribonucleic acid (DNA) testing under RCW 10.73.170, atrial court must presume that the DNA evidence soughtwould befavorable to the convicted individual. Because the record in this case does notreflect 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, atapproximately 3:00 a.m., 18-year-old A.B. was asleep in 

### the home of hermother and stepfather in an isolated, wooded area ofVashon Island. 

### Sheawoke to see a man standing in herdark bedroom. The man washolding a knife 

### and wearing abaseball cap and adust mask over his mouth. In alow, raspy voice, the man told A.B. tostay quiet and take offher clothes. He also told herthat hehad tied up the rest ofherfamily. 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 thatA.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 assaultwith 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, atwhose house shehad attended a couple ofparties andwhose young child she had occasionally babysat. A 

### subsequent search ofDublin's home revealed a notebook containing a list ofnames, 

### 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. A jury 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 DNAtesting ofthe underwear, sheets and stuffed animal from A.B.'s bedroom. On November 17, 2014, thetrial court denied the motion without oral argument. Thetrial 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 ofAppeals. 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. Dublinappeals.
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 thejudgment of conviction. The motion must explain "why DNAevidence is material to the identity ofthe 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 DNAtesting 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 inthe record that the trial court applied the favorable 

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

### language, but made no mention of a presumption offavorability orhypothetical 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:

2

We alsonote thatRCW 10.73.170(2)(a) establishes a procedural predicate to thetrial 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 courtruled that DNA testing did not meetacceptable scientific standards; or 

### (ii) DNAtesting technology was not sufficiently developed to testthe DNA evidence in the case; or (iii) The DNAtesting now requested would besignificantly more accurate than prior DNAtesting orwould provide significant new information[.] The trial court made no findings thatthemotion met any ofthesecriteria and theparties do not address the issue on appeal. It may bethat Dublin's motion issufficienttosatisfy 

### the statutory predicate. SeeRiofta at365-66. Nonetheless, on remand it is incumbent 

### upon the trial courtto explicitly make this finding before considering the substance ofthe motion.