### FILED 

### OCTOBER 9, 2014 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division Hl

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION

### THREE STATE OF WASHINGTON, ) ) No. 31578-9-111 Respondent, ) ) 

### v. ) ) ANTHONYLAMARALLEN, SR., ) UNPUBLISHED OPINION ) Appellant. ) FEARING, J.

- Deoxyribonucleic acid (DNA) testing is a relatively new technology, but the many benefits ofDNAtesting have caused the use ofthese methods to explode in a wide variety ofapplications. Some ofthe most well-known benefits of DNAtesting have been seen in the arena ofcriminaljustice. The guilty are found and convicted, and the innocent are exonerated, all on the basis ofmicroscopic evidence that is more unique than a fingerprint. DNAevidence is particularly helpful when a victim misidentifies an assailant he or she did notknow. Ajuryconvicted Anthony Allen ofthe crimes ofkidnapping and assault. Anthony Allen filed a motion for postconviction DNA testing. Allen contended that (1) negative DNAresults would, in combination with other evidence, raise a reasonable probabilityNo. 31578-9-III State v. Allen
that Allen did not commit the crimes; or (2) positive results would, in combination with other evidence, show that he is innocent on a more probable than not basis. Fromthe trial court's denial ofthe motion, Allen appeals. We affirm the trial court. Although DNAtesting serves a worthwhile purpose, its employment is not helpful here, since the victims ofthe crimes were acquaintances ofAnthony Allen and wouldnot misidentify him. Thus, the statutory basis to compel DNA testing is not satisfied. FACTS This court addressed Anthony Allen's direct appeal in State v. Allen, noted at 2009 WL 2999187 (Wash. App. Div. 3). The following facts and procedure below are drawn from that unpublished opinion and supplemented by the current record. On August 19,2007, Karla Jones and Dewey Hudson wentto Hudson's Spokane house to retrieve Jones' dog. Unknown to Jones and Hudson, Anthony Allen and two other assailants, Uriah Allen and Wanda Phillips, waited inside Hudson'shouse. Hudson and Jones had known Anthony Allen for many years. When Karla Jones and Dewey Hudson reached the porch ofthe house, Anthony Allen opened the door and pulled Jones into the entryway. Allen and his companions attacked Jones. Hudson tried to intervene, but Allen knocked him down, slapped him in the face with a butcher knife, and hit him in thejawwith the butt ofthe butcher knife. Allen then used the butcherknife to slash Jones' hair. Allen threatened to kill Jones if

2No. 31578-9-II1 State 

### v. Allen
she "messed" with his aunt again. Clerk'sPapers at 112. Allen hit Hudsonwith a pistol. He and the two other assailants then left Hudson's house. Dewey Hudson begged Karla Jones not to call the police; but Jones tookherdog,
ran home, and called the police. OfficerEugene Baldwin went to Jones' home within 10 minutes ofJones' phone call. OfficerBaldwin saw injuries to Jones' head and face. Jones told OfficerBaldwin that Allen and another man assaulted her and Hudson. OfficerBaldwinjoumeyed to Dewey Hudson's house and found Hudson unconscious in his living room with a swollen and bloody face. Hudson first told Baldwin nothing happened. Then recanting, Hudson told OfficerBaldwinthat he and Jones were assaulted. Hudson told Officer Baldwin that Allenhit him in the face and head with a handgun whenhe had tried to intervene. Officer Baldwinrecovered the butcherknife from the home. The butcher knife had blood onthe blade. Two blood swabs ofthat blood were taken, but DNA testing was not conducted. PROCEDURE On September 25, the State ofWashington charged Anthony Allen with first degree kidnapping and two counts ofsecond degree assaultwith a deadly weapon. DeweyHudson's testimony at trial differed from his statement to OfficerBaldwin at the scene ofthe crime. Hudson testified that he incurredhis injuries when he tried to
remove Karla Jones from his house. Hudson further testified that he did notremember talking to Officer Baldwin and denied that AnthonyAllen assaulted him. 3No. 31578-9-111 State v. Allen
OfficerBaldwin testified that, after he described to Dewey Hudson, onthe day of the assault, the extent ofKarlaJones' injuries, Hudson grew receptive to telling the truth. OfficerBaldwinrepeated for thejuryHudson's earlier version ofevents, in which Hudson intervened toprotectJones, but Allen hithimwith a handgun. On December 20, ajury found Anthony Allen gUilty offirst degree kidnapping and two counts ofsecond degree assaultwith a deadly weapon. By special verdict, the jury found that the deadly weapon was not a firearm. OnNovember 29,2012, Anthony Allen moved, under RCW 10.73.170, for postconviction DNAtesting oftheblood found on theknife. The trial court denied his motion on the ground that testing could notprove his innocence on a moreprobable than not basis. LAWAND ANALYSIS RCW 10.73.170 allows a convictedperson currently serving a prison sentence to petition the trial court for postconviction DNAtesting. Thepetitionermust satisfy both procedural and substantive requirements ofthe statute. RCW 10.73.170(2), (3). The statute, adopted in 2000, reads in pertinentpart: (1) A person convicted ofa felony in a Washington state court who currently is serving a term ofimprisonment may submitto the courtthat enteredthejudgment ofconviction a verified written motion requesting DNAtesting, with a copy ofthe motionprovidedto the state office of public defense. (2) The motion shall: (a) Statethat: 4No. 31578-9-III State v. Allen (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 nowrequested would be significantly more accurate than prior DNA testing orwould provide significant new information; (b) Explain why DNA evidence is material to the identity ofthe perpetrator of, or accomplice to, the crime, or to sentence enhancement; and (c) Comply with all otherprocedural requirements established by court rule. (3) The court shall grant a motion requesting DNA testing under this section ifsuch motion is in the form required by subsection (2) ofthis section, and the convicted person has shown the likelihood that the DNA evidence would demonstrate innocence on a more probable than not basis. (5) DNA testing ordered under this section shall beperformed by the Washington state patrol crime laboratory. Contact with victims shall be handled through victim/witness divisions. RCW 10.73.170. The statute was adopted to qualify Washington State for federal funding under the Justice ForAll Act of2004. Pub. L. No. 108-405, 118 Stat. 2260, 2261-62. The Washington statute is modeled after the federal DNA testing statute, 18 U.S.C. § 3600(a). State v. Riofta, 166 Wn.2d 358, 368, 209 P.3d 467 (2009). Procedurally, the petitioner must: state that DNA testing would provide significant
new information; explain why DNA evidence is material to the identity ofthe perpetrator; and comply with applicable courtrules. RCW 10.73.l07(2)(a)-(c). Here, the trial court properly determined thatAllen met the procedural requirements ofRCW 1O.73.l70(2)(a)(iii), since DNAtesting was not done priorto trial.



### 5No. 31578-9-III State v. Allen
At issue is whetherAnthony Allen satisfied the substantive requirements ofRCW 10.73.170. In contrast to the statute's lenient procedural requirements, its substantive standard is onerous. State v. Riofta, 166 Wn.2d 358,367,209P.3d467 (2009). RCW 10.73.170(3)provides, "The court shall grant a motion requesting DNA testing underthis section if
... the convicted person has shown the likelihood that the DNA evidence would demonstrate innocence on a more probable than not basis." A motion for testing is not decided in a vacuum. State v. Riofta, 166 Wn.2d at 367-68. The statute requires a trial courtto grant a motion for postconvictiontesting when exculpatory results would, in combination with the other evidence, raise a reasonable probability the petitioner was not the perpetrator. Riofta, 166 Wn.2d at 367-68. The legislature intendedto restrict the availability ofpostconviction DNAtesting to a limited class ofextraordinary cases where the results could exonerate aperson who was wrongfully convicted ofa crime. Riofta, 166 Wn.2d at 369 n.4. Case law supports using a favorable presumption when deciding whetherto grant
a motion for post-conviction DNA testing. We formally holdthat this presumption is part ofthe standard in RCW 10.73.170. A court should lookto whether, considering all the evidence from trial and assuming an exculpatory DNA test result, 

### itis likely the individual is innocent on a more probable than not basis. Ifso, the court should grantthe motion and allow testing to be done. Onlythen can it be determined whetherthe DNA

6No. 31578-9-III State v. Allen actually exculpates the individual and ifthe results could be used to support a motion for
a new trial. In other words, a court should evaluate the likelihood ofinnocence based on a favorable test result, not the likelihood ofa favorable test result in the first place. There is no indication that the trial courtused a standard that included use ofa favorable presumption. In its conclusions oflaw, the trial court stuckto the statutory language, with
no mention ofa presumption offavorability or hypothetical inferences from an exculpatory test result. Since we have found that this presumption is part ofWashington law and shouldbe applied, we are forced to assume the trial court did not apply the proper standard and therefore abused its discretion. In 1993, a 75-year-old widow living alone in Bremerton was repeatedly raped by
an intruder. State v. Crumpton, 172 Wn. App. 408, 410, 289 P.3d 766 (2012), review granted, 177 Wn.2d 1015, 306 P.3d 960 (2013), rev'd, 332 P.3d 448 (2014). The woman
was awoken at around 3: 15 a.m. and saw a man standing in her room. 

### ld. The man covered herhead with bedding and raped her five times, four times anally and once vaginally. 

### ld. In between each rape, he rummaged through different rooms in the house for valuables. 

### ld. The woman was unable to give a good description ofthe rapist due to the dark room and her head being covered during the encounter. 

### ld. Anthony Allen argues thatDNAevidence would show that he was mistakenly identified as the assailant. TheRiofla court accepted that mistaken eyewitness 7No. 3 I578-9-II1 State v. Allen
identification is a leading cause ofwrongful conviction. 166 Wn.2d at 371; see also Brandon 

### L. Garrett, JudgingInnocence, 108 COLUM. 

### L. 

### REv. 55, 60 (2008). The court addressed mistaken eyewitness identification by analyzing both the impact ofa favorable DNAtest and the likelihood ofmisidentification. Riofta controls our decision. Alexander Riofta stole a vehicle in which he found a white hat. He wore the white hat when he, accompanied bytwo others, pulled up to the house ofVeasna Sok. Sokpreviously agreed totestifY against Riofta for gang-related activity. When Sok's little brother, the victim, exited the house, Riofta fired three shots at him, missing each time. The victim recognized Riofta as his neighbor offour orfive years. Riofta fled the scene leaving behindthe white hat and revealing his shaved head. Thehatwas later identified as belonging tothe owner ofthe stolen vehicle. The State did not analyze the hat for DNA evidence. Riofta was found guilty offirst degree assault with a firearm. Riofta thenpetitioned for postconviction DNAtesting ofthe white hat. TheRiofla court analyzed the impact ofDNAtesting by recognizing that other people's DNA could be found on the hat, and thatAlexander Riofta's DNA may notbe found on the hat. Most likely, Riofta was not the only personto wear the hat. The hat's original owner could have worn the hat along with either ofthe two accomplices in the
car. Thepresence ofother's DNA would not showthe defendant's innocence on a more probable than not basis. Perhaps more importantly, the Riofta court underlined the fact that the victim 8No. 31578-9-III State v. Allen
knew Alexander Riofta. The two lived in the same neighborhood and had known each other for four or five years. Riofta had visited the victim's home several times to meet with his brother. The victim had ample time to recognize both Riofta and his voice at the time ofthe attack. When police first interviewed Sok, he promptly provided Riofta's
name and an accurate physical description. Riofta should bejuxtaposedwith State v. Thompson, 173 Wn.2d 865,271 P.3d 204 (2012). In the latter case, the state high courtreversed the denial ofBobby Ray Thompson's request for DNAtesting ofvaginal swabs. Thompson had been convicted of first degree rape. The victim was unsure ofher ability to identify the attacker and her tentative description did not match Thompson. We review a trial court's decision on a motion for postconviction relieffor abuse ofdiscretion. State v. Hardesty, 129 Wn.2d 303, 317, 915 P.2d 1080 (1996); Riofta, 166 Wn.2d at 370. The lower court did not abuse its discretion underthe facts ofthis case. Just as the lack ofDNA orthe presence ofotherperson's DNA on the hat in Riofta did not make the defendant's innocence more probable; the lack oforthe existence of Anthony Allen's DNA on the knife does not make it more probable than notthat Allen is innocent. Allen argues that the presence ofhis blood on the knife would make it unlikely that he wieldedthe knife during the assaults. He alternatively argues that, ifDNAtesting excludes him as a contributorto the DNA, the exclusion would exonerate him as the assailant. Both arguments are illogical. 9No. 31578-9-III State 

### v. Allen
Thepresence ofAnthony Allen's DNA on the knife would only show thatAllen
was close enough to the altercation to be involved. Allen does not claim to be a victim. Therefore, thepresence ofhis DNA would further implicate him as the assailant. If Allen's DNA is not found on the knife it would merely show that his DNA was not**transferred~** it would not show that he did not wield the knife. Ifanother person's DNA
was found on the knife, it would only show that at some pointprior to the assault
someone else handled the knife. Allenwas one ofthree assailants, all ofwhom were in Hudson's house and could have handled the knife before it ultimately ended up in Allen's hands. A kitchen utensil is often used by multiple people and would have multiple
sources ofDNA. Anthony Allen argues that DNA evidence would show thathe was mistakenly identified as the assailant. Like

### Riofta, the evidence in this case shows that Dewey Hudson and Karla Jones knew Allen for many years. Hudson and Jones identified Allen
as the assailant during the initial investigation, and Jones identified him at trial. Since Jones testified that Allen threatened to kill her, hearing his voice further confirmed an identification. The priorrelationship between Hudson, Jones, and Allen reduced the possibility thatAllen was mistakenly identified as the assailant.

10No. 3 1 578-9-III State v. Allen
STATEMENT OF ADDITIONAL GROUNDS (SAG) Anthony Allen brings two claims in hisSAG. First, Allen claims the trial court's denial ofhis motion for postconviction DNA testing violates his due process rights under the Fourteenth Amendmentto the United States Constitution and article I, section 3 ofthe Washington Constitution. This courtrejected this same argument in Riofta v. State, 134 Wn. App. 669, 692,142 PJd 193 (2006), review granted inpart, 161 Wn.2d 1001,166 PJd718 (2007), aff'd, 166 Wn.2d 358, 209 P.3d467 (2009). Second, Anthony Allen claims he was not afforded effective assistance of appellate counsel in violation ofthe Sixth Amendmentto the United States Constitution and article I, section 22 ofthe Washington Constitution. IfAllen believes he received ineffective assistance on appeal then he should file apersonal restraintpetition withthis courtpursuant to RAP 16.4. The current record is insufficient to address this issue. Allen's SAG presents no error for which this court could provide relief. CONCLUSION We affirm the trial court's denial ofAnthony Allen'spetition for DNAtesting. A majority ofthe panel has determined this opinion will notbe printed in the Washington Appellate Reports, but it will be filed for public record pursuant to



### 11, 

## . No. 31578-9-II1 State v. Allen
RCW 2.06.040.

WE CONCUR:

# ~~~ Brown, A.C.J. Lawrence-Berrey, 

### J.

12