1 NOT DESIGNATED FOR PUBLICATION

No. 1 2 3, 197

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

S TATE OF K ANSAS

, Appell ee

,

v.

R

AYMONE R APHAEL L EVY

, Appell ant

.

MEMORANDUM OPINION

Appeal from S hawnee District Court; N ANCY E. P ARRISH

, judge. Opinion filed March 25, 202 2

.

Affirmed

.

J

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

N

atalie Chalmers , assistant solicitor general, and D erek Schmidt , attorney general, for appellee.

B efore G ARDNER

, P .J

., H ILL and I SHERWOOD

, J J.

P ER C URIAM : 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 wr ongfully convicted or

sentenced. R aymone 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.2 In his view, the lack of his DNA on that clothing would be excu lpatory 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 foun d 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

a bout whether she was referring to Levy or her biological fat her. 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 a buse. 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 a buse.3 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 rel ated 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 wear ing 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 ro o m 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, t he defense argued the girl had made up a story about the abuse. " This

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

are not in the record on appeal. The jury found Levy guilty o f r ape of a child, aggravated

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

.

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

He is now serving his sentence for his crimes.

Levy s eeks 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 repre sented by counsel. Levy informed the

district court that he wanted the girl's underwear retested and her shirt and pants tested.4 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 "bio logical 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 argue s 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 D NA 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. S tate v.

Johnson , 299 Kan. 890, 8 92, 327 P.3d 421 (2014). We begin our analysis with an5 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 S tate ; and

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

retesting with new DNA techniques that provide a reaso nable 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 o f

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 con ditions 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 unfavor able or favorable to the

petitioner

, the court has several options on what it can order.6 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 th ey 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 evid ence 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 c ases 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

postconvictio n 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. S tate v. Hernandez , 303 Kan. 609, 6 20

- 21, 366

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

produce noncumulative exculpatory evidence. H ernandez

, 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. " B runer v. State , 277

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

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

to be tested. " S tate v. Lackey , 295 Kan. 816, 8 24, 286 P.3d 859 (2012).7 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. J ohnson

, 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 the n make a probabilistic determination

about what jurors would do given the new evidence. S tate v. George

, 308 Kan. 62, 6 8,

418 P.3d 1268 (2018)

. The mere absence of DNA on an item can be exculpatory.

H ernandez

, 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 ." 2 77 Kan. at 606.

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

then, weigh s 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 co nducting an evidentiary hearing. The Supreme

Court remanded the case for appointment of counsel and an evidentiary hearing on the8 request for DNA testing because Bruner had alleged all that the statute required. 2 77 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 vic tim'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 testi ng 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 ag ainst [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. 2 9 5 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.

L ackey

, 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.9 Exculpatory does n ot 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 nev er 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 testimo ny 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 tes ting of the hairs, claiming the clerk misidentified

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

affirmed. G eorge

, 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. 3 08 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. 3 08 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.)

3 08 Kan. at 71

. The court remanded on the issue of whether the evidence would be

cumulative. 3 08 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 sexual10 assa ult 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

postco nviction 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. H ernandez

, 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

di sprove 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.'" 3 03 Kan. at 620.

But o ur Supreme Court r eversed. 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. H ernandez

, 303 Kan. at 617

- 18. Because

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

exculpatory, and the abse nce of DNA evidence could be exculpatory. 3 03 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 dis prove 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." 3 03

Kan. at 620.

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

standards. 3 03 Kan. at 621.11 Again, these two cases show that when a court is considering whether to order

testing, the petitioner does not have a high burden of persu asion 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 H ernandez , 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. 3 03 Kan. at 611. This is where

the facts here become dissimilar to t he 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. His12 recorded interview is not in our record. T he 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 bio logical 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 examinin g 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. " 3 03 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."

3 03 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 not13 contested by the State, is qualified to petition for such DNA testing" so long as the other

statutory requirements are met

. 3 03 Kan. 609, Syl. ¶ 2.

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

,

34 Kan. App. 2d 368, 3 72, 119 P.3d 679 (2005), the panel had concluded that a petitioner

did not need to make specif ic 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. S ee G oldsmith v. State , 34 Kan. App. 2d 789,

7 93

- 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. S tate v. Rivera , No. 111,857, 2015 WL

5009324, at * 3 (Kan. App. 2015) (unpub lished opinion); S tate 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." 2 012 WL 687836, at * 4.14 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 mat erial 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." 2 015

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 stat utory

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 3 03

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 o n 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 be15 performed on nonbiological material. The statute provides no relief to a peti tioner 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 noncumula tive 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

si mply tend to prove his DNA is not on the items.

Affirmed.