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NOT DESIGNATED FOR PUBLICATION

No. 123,197

 

 

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

RAYMONE RAPHAEL LEVY,

Appellant.

MEMORANDUM OPINION

Appeal from Shawnee District Court; NANCY E. PARRISH, judge. Opinion filed March 25, 2022. 

Affirmed.

Jennifer Bates, of Kansas Appellate Defender Office, for appellant.

Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellee. 

Before GARDNER, P.J., HILL and ISHERWOOD,JJ.

PER CURIAM: When an offender has been convicted of first-degree murder or 

rape, Kansas law directs that a district court shall order DNA testing of biological 

material in the State's possession if that testing may produce noncumulative, exculpatory 

evidence relevant to a prisoner's claim that the prisoner was wrongfully convicted or 

sentenced. Raymone Raphael Levy asked a court to order testing of the victim's clothing 

that she was wearing the day before their encounter that led to his prosecution. 
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In his view, the lack of his DNA on that clothing would be exculpatory and he 

therefore asks us to overturn the district court's order denying his petition for testing. In 

other words, he is seeking testing to show there is no biological material on the items. We 

are unpersuaded that the lack of his DNA on items worn by the victim before her 

encounter with Levy would be exculpatory evidence. The lack of his DNA on these items 

would not prove or disprove any disputed material fact in his prosecution. We affirm the 

district court's denial of his petition. 

The jury found Levy guilty of rape of a young girl.

Levy was convicted of raping his girlfriend's seven-year-old daughter. The girl 

disclosed to school officials that Levy was sexually abusing her. The victim described the 

abuse in detail in a recorded interview with a social worker. The victim was given a 

medical examination the same day she alleged an incident of abuse had occurred. Levy's 

semen was found inside the girl's underwear.

At Levy's preliminary hearing, the victim did not testify. Instead, the State 

admitted her recorded interview with the social worker. The social worker testified that 

the girl first said her "dad" had been abusing her and this led to some early confusion 

about whether she was referring to Levy or her biological father. But the social worker 

explained that this uncertainty was resolved when the girl made it clear that Levy was the 

abuser. 

At trial, the girl identified Levy as her abuser and described her abuse. The 

interview with the social worker was also played for the jury. The girl said the abuse 

happened every day when her mom went to work. She said the last time it happened was 

the night before and the next morning when she, at school, disclosed the abuse. 
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Pertinent to this appeal is a shirt and pants the girl was thought to have worn the 

"day before" she disclosed the abuse. The items were collected by the detective. At trial, 

the girl did not remember what she was wearing when Levy sexually assaulted her. A 

detective testified the shirt and pants were not submitted to the KBI for testing because he 

did not have enough information to believe "that the clothes were related to anything. We 

never even confirmed that those were the clothes that she had been wearing the day 

before, let alone the day that this occurred." The detective was unaware of any allegation 

of abuse that had occurred when the girl would have been wearing that clothing.

For his part, Levy denied any sexual abuse. He offered no explanation for how his 

sperm made its way into the girl's underwear. He claimed he was out the previous night 

planning a friend's birthday and did not have contact with the girl. He testified that on 

that morning, he had masturbated under a blanket on the couch in the living room and, 

after he finished, the girl came out of her bedroom and sat next to him, but he did not 

touch her. She was wearing her night clothes. 

At trial, the defense argued the girl had made up a story about the abuse. "This 

little girl was not raped by Raymore [sic] Levy or anyone else." The closing arguments 

are not in the record on appeal. The jury found Levy guilty of rape of a child, aggravated 

criminal sodomy of a child, and aggravated indecent liberties/lewd fondling with a child. 

His convictions were upheld on appeal. State v. Levy, 292 Kan. 379, 253 P.3d 341 (2011). 

He is now serving his sentence for his crimes. 

Levy seeks an order for postconviction testing.

Levy has filed a pro se petition for postconviction DNA testing. The petition did 

not specify what evidence Levy wanted tested. The district court held a nonevidentiary 

hearing on the petition at which Levy was represented by counsel. Levy informed the 

district court that he wanted the girl's underwear retested and her shirt and pants tested. 
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The State conceded the underwear, a red shirt, and a pair of blue jeans were in its 

custody.

The district court denied Levy's petition. The court held that the underwear did not 

qualify for testing under K.S.A. 2020 Supp. 21-2512(a) because it was previously tested, 

and the testing methods had not progressed since that time. We are not concerned with 

the question of retesting of the underwear in this appeal. The court also noted that the 

shirt and pants were not the clothes that the girl slept in, but what she had been wearing 

the day before. The court held the shirt and pants did not qualify for testing because there 

was no "biological material" to be tested. 

Did the court err when it denied Levy's petition?

To us, Levy argues that the district court read the applicable statute—K.S.A. 2020 

Supp. 21-2512—too narrowly. He contends that the court erred when it concluded that 

the items to be tested contained no biological material and a court should err on the side 

of ordering testing. With no further explanation, he simply asserts that the absence of 

DNA on the shirt and pants would be exculpatory. 

In response, the State argues the shirt and pants do not constitute "biological 

material" under K.S.A. 2020 Supp. 21-2512(a), that Levy never asserted that there was 

any biological material on the clothing, and that testing to determine whether biological 

material is present is not DNA testing. The State does not concede that there could be 

biological material on the clothes. The State alternatively argues that testing could not 

"produce noncumulative, exculpatory evidence" under K.S.A. 2020 Supp. 21-2512(c).

We consider this to be a question of law subject to unlimited review. State v. 

Johnson, 299 Kan. 890, 892, 327 P.3d 421 (2014). We begin our analysis with an 
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examination of the appropriate statute. From there, we move on to review the cases that 

have interpreted that law. And then, we apply the law to the facts leading to this appeal. 

We must first review the law of postconviction DNA testing. 

One Kansas statute permits a person in state custody, at any time after conviction 

for first-degree murder or rape, to petition a court for "forensic DNA testing 

(deoxyribonucleic acid testing) of any biological material" that

(1) relates to the murder or rape investigation or prosecution;

(2) is in the possession of the State; and

(3) was not previously subjected to DNA testing or can be subjected to 

retesting with new DNA techniques that provide a reasonable likelihood of 

more accurate or probative results. K.S.A. 2020 Supp. 21-2512(a).

The statute continues, the court "shall order DNA testing . . . upon a determination 

that testing may produce noncumulative, exculpatory evidence relevant to the claim of 

the petitioner that the petitioner was wrongfully convicted or sentenced." K.S.A. 2020 

Supp. 21-2512(c). 

Subsection (f)(1) and (f)(2) of the statute set out what a court can do if the results 

of the testing are unfavorable or favorable to the petitioner. 

In short, the statute sets out how a court is to proceed with these cases. A court 

considering such a petition must first determine whether certain conditions are met, such 

as the crime of conviction and the existence of any items to be tested. Then, it must 

decide whether testing may produce noncumulative exculpatory evidence that is relevant. 

After that, depending on the whether the results are unfavorable or favorable to the 

petitioner, the court has several options on what it can order. 
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Here, there is no question that Levy is in state custody for a rape conviction and 

that the shirt and pants were collected during the rape investigation, and that they are in 

the possession of the State and were not previously subjected to DNA testing. So all of 

those statutory requirements have been met. This means that the only question before us 

is, may testing of these items produce noncumulative, exculpatory evidence relevant to 

Levy's claims of wrongful conviction? To answer this question, we must review the cases 

interpreting this statute.

Caselaw directs courts to sequentially examine several factors when deciding 

postconviction DNA testing cases.

Several cases have interpreted this statute. As the cases have been decided, certain 

points of law have emerged. Our Supreme Court has said the statute has created a 

sequence of questions that a court may have to answer when dealing with petitions for 

postconviction DNA testing. First, should the court order testing? If so, how are any test 

results to be weighed? These questions are distinct, and their methods of resolution 

should not be conflated. 

First, some general observations from the cases provide a context for an 

understanding of this law. The right to DNA testing is not limited to cases in which there

is a substantial question of innocence. State v. Hernandez, 303 Kan. 609, 620-21, 366 

P.3d 200 (2016). A petitioner need not show with certainty that the requested testing will

produce noncumulative exculpatory evidence. Hernandez, 303 Kan. at 617. "Likewise,

the statute does not require the prisoner to make specific allegations regarding how the

DNA testing would produce noncumulative, exculpatory evidence." Bruner v. State, 277 

Kan. 603, Syl. ¶ 4, 88 P.3d 214 (2004). Rather, "the district court is charged with the 

responsibility of assessing the exculpatory and cumulative nature of each item proposed 

to be tested." State v. Lackey, 295 Kan. 816, 824, 286 P.3d 859 (2012). 
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To make this assessment, a court must understand the qualities of exculpatory 

evidence. Evidence is exculpatory when it "'tends to disprove a fact in issue which is 

material to guilt or punishment.'" Evidence need not be exonerating to be exculpatory. 

The court may not weigh evidence to determine whether DNA testing may produce 

exculpatory evidence. Johnson, 299 Kan. at 894. That the DNA evidence may be of little

evidentiary value does not matter when the court is initially determining whether to order

testing. The resolution of Levy's appeal turns on the definition of exculpatory evidence.

The next step in the procedure requires further decision making by the court. Once

DNA results are obtained, the district court can then make a probabilistic determination

about what jurors would do given the new evidence. State v. George, 308 Kan. 62, 68,

418 P.3d 1268 (2018). The mere absence of DNA on an item can be exculpatory.

Hernandez, 303 Kan. at 617. The Bruner court commented that "[w]hile some aspects

of K.S.A. 2003 Supp. 21-2512 might allow a 'fishing expedition,' we must conclude such

an expedition is one the legislature has concluded is worth conducting." 277 Kan. at 606. 

To summarize the process then, the court first determines whether to test, and 

then, weighs what evidence comes from the testing. 

Two cases show the broad nature of this statute.

The Bruner and Lackey cases reveal the Supreme Court's approach to the 

application of this statute. Bruner was convicted of the murder of his wife based on 

circumstantial evidence. Bruner sought postconviction DNA testing of blood samples, 

skin samples from the victim's hands, and hair samples the police had collected, but 

Bruner did not make specific assertions about what noncumulative, exculpatory evidence 

would be produced from such testing. The district court summarily denied Bruner's 

motion without appointing counsel or conducting an evidentiary hearing. The Supreme 

Court remanded the case for appointment of counsel and an evidentiary hearing on the 
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request for DNA testing because Bruner had alleged all that the statute required. 277 Kan. 

at 606, 608. In other words, Bruner had said enough to obtain an order for testing. 

We turn to the second case, Lackey. Lackey was convicted of murder and rape of a 

college student. The victim was last seen by her boyfriend. The KBI matched sperm 

found inside the victim's vagina and biological material found on the victim's underwear 

to Lackey's DNA. But short hairs that were found on the victim's body were not tested by 

the KBI. The district court summarily denied Lackey's pro se petition for postconviction 

DNA testing of the short hairs and for retesting of all the collected samples against the 

victim's boyfriend's DNA. A panel of this court affirmed, rejecting Lackey's request to 

test the short hairs because: 

"DNA testing on the short hairs would not produce exculpatory evidence in this case 

when Lackey's DNA was consistent with the DNA found in [the victim's] vagina and 

underneath her fingernails[,] . . . especially so since Lackey had denied knowing [the 

victim] and denied being in Kansas when the crimes against [the victim] were 

committed." State v. Lackey, 42 Kan. App. 2d 89, 97, 208 P.3d 793 (2010).

But our Supreme Court reversed that decision. The court held "exculpatory 

evidence" is not limited to evidence that definitively exonerates the defendant when 

weighed against other evidence in the case and in light of the defendant's theory of the 

case. 295 Kan. at 823. The court remanded the case for an evidentiary hearing to 

determine whether DNA testing of the short hairs was required under K.S.A. 21-2512. 

Lackey, 295 Kan. at 824. 

Both Bruner and Lackey reveal that a petitioner, at least at first, does not have to 

show many reasons why testing should be ordered. But the petitioner has to show that 

testing may reveal evidence, or even the absence of evidence, that suggests innocence. 
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Exculpatory does not mean exonerating. 

In two cases, George and Hernandez, our Supreme Court emphasized that the 

purported DNA evidence need only be marginally exculpatory. George was convicted of 

rape of a convenience store clerk in the storeroom. Pieces of hair from the floor of the 

storeroom were collected as evidence but never tested by the KBI. George's DNA was 

not found on fluid samples collected during the sexual assault examination. Rather, the 

fluid samples matched the clerk's boyfriend's DNA. George's first trial ended in a 

mistrial. At the retrial, there was no testimony on the DNA evidence. The State's case 

depended on surveillance video and the clerk's testimony. George filed a pro se petition 

for postconviction DNA testing of the hairs. The district court appointed George counsel 

and held a hearing. George sought testing of the hairs, claiming the clerk misidentified 

him as the perpetrator. The district court denied the motion and a panel of this court 

affirmed. George, 308 Kan. at 63-65. The panel ruled that DNA testing of the hairs

would be "marginally exculpatory" because George denied interacting with the clerk. But

the panel found the evidence would be cumulative. 308 Kan. at 67-68.

The Supreme Court agreed that if DNA testing showed the hairs were not a match

to George, the result of the testing would be exculpatory because it would tend to show

he had not been at the spot where the rape occurred. 308 Kan. at 68. The court held that

"[b]ecause Kansas law does not allow for the weighing of evidence until after DNA test

results are obtained, exculpatory by the smallest margin is sufficient." (Emphasis added.)

308 Kan. at 71. The court remanded on the issue of whether the evidence would be

cumulative. 308 Kan. at 75. We take this to mean that even the slightest indication of

exculpation would call for testing.

Another case showing the minimalist view of our Supreme Court is Hernandez. 

Hernandez was convicted of the rape of his 13-year-old daughter. Police did not submit

bedding collected from the home for forensic testing because the last incident of sexual
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assault was two weeks before the search and Hernandez wore a condom. The State's case

rested mainly on the credibility of the witnesses. The defense argued that the child

fabricated the sexual abuse allegations. Hernandez filed a pro se petition for

postconviction DNA testing of the bedding. The district court denied the petition after

appointing counsel to represent Hernandez and conducting a nonevidentiary hearing. A

panel of this court affirmed. Hernandez, 303 Kan. at 613. The panel explained:

"'Hernandez asked that the sheets be tested for his DNA, his wife's DNA, and C.H.'s

DNA. The discovery of Hernandez' DNA on the sheets would have been detrimental to

his defense. But the absence of Hernandez' DNA on the sheets would not tend to prove or

disprove any fact at issue that was material to his guilt or innocence. Likewise, the

presence or absence of C.H.'s DNA or the wife's DNA on the sheets would not have

disproved C.H.'s allegations against Hernandez.'" 303 Kan. at 620.

But our Supreme Court reversed. The court held the State's argument—that the

absence of Hernandez' DNA on the bedding would not have changed the verdict—invited

the district court to apply an incorrect legal standard to requests made under K.S.A. 2020

Supp. 21-2512. The district court cannot weigh evidence until after testing has been

conducted and the results are known. Hernandez, 303 Kan. at 617-18. Because

Hernandez denied engaging in any sex acts with his daughter, DNA evidence could be

exculpatory, and the absence of DNA evidence could be exculpatory. 303 Kan. at 619-20.

The court explained its reasoning by offering examples:

"For instance, the presence of DNA from Hernandez and/or his wife on their bed, 

coupled with the absence of C.H.'s DNA, would tend to disprove that Hernandez sexually 

abused C.H. on that bed. Similarly, the presence of DNA from C.H. and/or her boyfriend 

on her bed, without any DNA from Hernandez, would be exculpatory evidence." 303 

Kan. at 620.

The court remanded for the district court to conduct a hearing using the correct legal 

standards. 303 Kan. at 621. 
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Again, these two cases show that when a court is considering whether to order 

testing, the petitioner does not have a high burden of persuasion for a court to order 

testing. Even the absence of DNA may signal innocence and is therefore exculpatory. 

We note that the facts in Hernandez are similar to the case here. Identity was in 

dispute here, in the sense that Levy denied committing the acts. In Hernandez, the 

defendant argued the child victim fabricated the allegations. 

Recognizing this similarity does not end our analysis. A court cannot weigh the 

evidence when deciding whether DNA testing is warranted. But there must be some 

possibility that the DNA evidence could tend to prove or disprove a disputed material 

fact. See Hernandez, 303 Kan. at 620. In Hernandez, the victim said the assaults took 

place in her bedroom and on Hernandez' bed. The absence of the victim's DNA on 

Hernandez' sheets and the absence of Hernandez' DNA on the victim's sheets could have 

tended to disprove that sex acts occurred in his or her bed. 303 Kan. at 611. This is where 

the facts here become dissimilar to the facts in Hernandez.

Here, the absence of Levy's DNA on the girl's clothing could tend to show that he 

did not rape her the day before while she was wearing that clothing. But is that a fact that 

was in dispute? We do not think so. 

We do not see how the absence of Levy's DNA on the girl's clothing could prove 

or disprove a disputed material fact in this case. The girl said Levy had assaulted her the 

night before. And she said it happened whenever her mom was at work. But the girl did 

not specifically allege that Levy raped her while she was wearing the shirt and pants in 

question. They were her day clothes. At trial, she could not remember what she was 

wearing during the assaults. Her recorded interview is not in our record. The detective 

testified the State could not tie that shirt and pants to any specific allegation of abuse. 

Levy did not testify that the girl was wearing that clothing at the times in question. His 
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recorded interview is not in our record. The absence of Levy's DNA on the shirt and 

pants does not show anything. There was no evidence she was wearing those clothes 

during one of the assaults. There was no disputed material fact about that clothing. The 

absence of DNA on that clothing would not be exculpatory even by the smallest margin.

Is Levy asking for the testing of biological material?

We understand that the statute speaks in terms of testing biological material. We 

believe this is because DNA evidence can only be obtained from biological material. The 

State emphasizes that Levy has not shown there is any biological material on the girl's 

shirt and jeans. We turn to that question by first examining the caselaw that deals with 

this subject. We must point out an observation by our Supreme Court. The Hernandez

court commented:

"There is an apparent split of authority in our Court of Appeals on whether . . . a

petitioner bears the burden to prove the existence of biological material on the items to be

tested, i.e., whether an inmate is entitled to a test to establish the absence of any

biological material." 303 Kan. at 614-15.

But the court did not resolve the question because

"Hernandez' petition recited that the items to be tested were 'believed to contain

biological material.' The State's response did not refute the existence of biological

material, but rather it noted that the CSI's report indicated possible DNA evidence on

C.H.'s sheet and Hernandez' comforter. Moreover, at the jury trial, the CSI did not dispute

defense counsel's assertion that there was a potential for DNA on the collected items."

303 Kan. at 615.

The court further held: "An inmate in state custody after a conviction for rape, who states 

a belief that biological material exists that can be tested for DNA, which allegation is not 
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contested by the State, is qualified to petition for such DNA testing" so long as the other 

statutory requirements are met. 303 Kan. 609, Syl. ¶ 2.

The split in the decisions is shown in several cases. For example, in State v. Smith, 

34 Kan. App. 2d 368, 372, 119 P.3d 679 (2005), the panel had concluded that a petitioner 

did not need to make specific allegations about the nature of or existence of biological 

material to be tested because a criminal defendant may not know about the extent, if any, 

that biological evidence had been collected. See Goldsmith v. State, 34 Kan. App. 2d 789, 

793-94, 124 P.3d 516 (2005).

But at least two panels of this court had concluded that K.S.A. 21-2512 applied 

only to testing of known biological material. State v. Rivera, No. 111,857, 2015 WL 

5009324, at *3 (Kan. App. 2015) (unpublished opinion); State v. Lingenfelter, No. 

105,551, 2012 WL 687836, at *4 (Kan. App. 2012) (unpublished opinion). 

Lingenfelter was convicted of raping his 16-year-old niece. He sought 

postconviction DNA testing of clothing she had been wearing when she was raped. He 

argued that if another man's semen was found on her clothing, it could have come from 

the actual rapist. The Lingenfelter panel held:

"The statute neither contemplates nor describes petitions that seek to have physical

evidence examined for the possible existence of biological material that, if discovered,

could then be subject to testing. In other words, a petition requesting that a forensic

examiner look at an object to see if it contains blood, other bodily fluids, or some other

biological material falls outside the scope of K.S.A. 21-2512." 2012 WL 687836, at *3.

The Lingenfelter panel cautioned that a contrary reading would "remarkably expand the

statute." 2012 WL 687836, at *4.
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Rivera was also convicted of rape. Rivera sought postconviction DNA testing of

the victim's bedding, claiming he was innocent and that either no DNA material would be

found or none could be attributed to him. The Rivera panel held:

"Rivera's arguments necessarily fail because he has not identified any known biological

material on the bedding that could be tested. He sought DNA testing of the bedding by

asserting there will be an absence of biological material on those sheets to test, thus his

request for testing does not fall within the scope of K.S.A. 2014 Supp. 21-2512." 2015 

WL 5009324, at *3.

We do not follow the logic of Rivera and Lingenfelter. If a petitioner asserts that 

someone else committed the crime and states a belief that the other person's DNA will be 

found on the item to be tested, then testing would be appropriate if the other statutory 

conditions are met. Under those circumstances, biological material could be present on 

that item.

But here, Levy did not assert a belief that biological material was present on the 

girl's shirt and pants in his motion for DNA testing, at the hearing, or in his appellate 

brief. Because Levy did not state "a belief that biological material exists that can be 

tested for DNA" and the State does not concede that there is biological material on the 

clothing, this case falls into the territory that the Hernandez court did not decide. See 303 

Kan. 609, Syl. ¶ 2. 

Must a district court order testing of nonbiological material—such as the clothing 

in this case—to establish the absence of the petitioner's DNA when that petitioner has not 

stated a belief that biological material exists on the item which can be tested for DNA and 

the State does not concede there is biological material on the item? 

In our view, the statute simply does not cover the type of testing Levy wants 

performed. The statute only provides for "forensic DNA testing." DNA testing cannot be 
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performed on nonbiological material. The statute provides no relief to a petitioner when 

DNA testing is impossible. We agree with the district court's ruling on this point. But, in 

our view, the fact that testing of these two items cannot lead to exculpatory evidence is 

controlling in this appeal. 

To sum up, we recognize that our Supreme Court in its various rulings on the 

postconviction DNA testing statute has set a low threshold for a petitioner to cross in 

order to obtain an order for testing. Even so, to order testing, there must be an 

understanding by the court that noncumulative exculpatory evidence may be discovered 

from the testing. A possibility of such a discovery seems sufficient according to the cases. 

But that evidence must tend to prove or disprove a material fact. In other words, it must 

have some exculpatory quality. Does it tend to show the petitioner's innocence?

Because we believe that testing of the victim's shirt and jeans she may have worn 

the day before her encounter with Levy would not yield any exculpatory evidence, we 

must reject Levy's petition and affirm the district court. The absence of his DNA would 

simply tend to prove his DNA is not on the items. 

Affirmed.