### FILED OCTOBER9, 2014 In the Office ofthe ClerkofCourt W AStateCourtofAppeals, Division III

INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) ) No. 31578-9-III Respondent, ) ) 

### v. ) ) ANTHONYLAMARALLEN, SR, ) UNPUBLISHED OPINION ) Appellant.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

### J.

- Deoxyribonucleic acid (DNA) testing is a relatively new technology, butthe many benefits ofDNAtesting have causedthe use ofthese methods to explode in a widevariety ofapplications. Some ofthe mostwell-knownbenefits of DNAtesting have been seeninthe arena ofcriminaljustice. The guilty are found and convicted, andthe innocent are exonerated, all onthebasis ofmicroscopic evidencethat is moreuniquethan a fingerprint. DNAevidence is particularly helpful when a victim misidentifies an assailanthe or she didnotknow. AjuryconvictedAnthony Allen ofthe crimes ofkidnapping and assault. Anthony Allen filed a motion for postconvictionDNAtesting. Allen contendedthat(l)negative DNAresults would, in combinationwith other evidence, raise a reasonableprobabilityNo. 31578-9-111 State 

### v. Allen
that Allen did not committhe crimes; or (2) positive results would, in combination with other evidence, show that he is innocent on a more probable than notbasis. From the 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 would not misidentify him. Thus, the statutory basis to compel DNA testing is not satisfied. FACTS This court addressed Anthony Allen's direct appeal inState v. Allen, noted at 2009 WL 2999187 (Wash. App. Div. 3). The following facts andprocedure below are drawn from that unpublished opinion and supplementedby the current record. On August 19,2007, KarlaJones 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 WandaPhillips, waited inside Hudson's house. Hudson and Jones had known Anthony Allen for many years. When Karla Jones and Dewey Hudson reached the porch ofthe house, Anthony Allen openedthe door and pulled Jones into the entryway. Allen and his companions attacked Jones. Hudson triedto intervene, but Allenknocked him down, slappedhim in the face with a butcher knife, and hit him in thejawwith the butt ofthe butcherknife. Allen then used the butcher knife to slash Jones' hair. Allen threatened to kill Jones if

2No. 3 I578-9-II1 State v. Allen
she "messed" with his aunt again. Clerk's Papers at 112. Allen hit Hudson with apistol. He and the two other assailants then leftHudson's house. Dewey Hudson begged Karla Jones not to call the police; but Jones took her dog,
ran home, and called the police. OfficerEugene Baldwin went to Jones' home within 10 minutes ofJones' phone call. Officer Baldwin saw injuries to Jones' head and face. Jones told OfficerBaldwinthat Allen and another man assaulted her and Hudson. Officer Baldwinjoumeyedto 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 Officer Baldwin that he and Jones were assaulted. Hudson told Officer Baldwin that Allen hithim inthe face and head with a handgun when he had tried to intervene. OfficerBaldwin recovered the butcherknife from the home. The butcher knife had blood on the blade. Two blood swabs ofthat blood were taken, but DNA testing was not conducted. PROCEDURE On September25, the State ofWashington charged Anthony Allen with first degree kidnapping and two counts ofsecond degree assault with a deadly weapon. Dewey Hudson's testimony at trial differed from his statementto Officer Baldwin at the scene ofthe crime. Hudson testified that he incurred his injuries when he triedto
remove Karla Jones from his house. Hudson further testified that he did not remember talking to Officer Baldwin and denied that AnthonyAllen assaulted him. 3No. 31578-9-III State v. Allen
OfficerBaldwin testified that, after he described to Dewey Hudson, on the day of the assault, the extent ofKarla Jones' injuries, Hudson grewreceptive to telling the truth. OfficerBaldwin repeated for thejuryHudson's earlierversion ofevents, in which Hudson intervened to protect Jones, butAllen hit him with a handgun. On December 20, ajury found Anthony Allen guilty offirst degree kidnapping and two counts ofsecond degree assault with a deadly weapon. By special verdict, the jury found thatthe deadly weapon was not a firearm. On November 29, 2012, Anthony Allen moved, under RCW 10.73.170, for postconviction DNAtesting ofthe blood found on the knife. The trial court denied his motion on the ground thattesting could not prove his innocence on a more probable than not basis. LAW AND ANALYSIS RCW 10.73.170 allows a convicted person currently serving a prison sentence to petition the trial court for postconviction DNA testing. Thepetitioner must 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 ofafelony in a Washington state courtwho currently is serving a term ofimprisonment may submit to the courtthat entered thejudgment ofconviction a verified written motion requesting DNA testing, with a copy ofthe motion providedto the state office of public defense. (2) The motion shall: (a) State that: 4No. 31578-9-III State v. Allen (i) The courtruled that DNAtesting did not meet acceptable scientific standards; or (ii) DNAtesting technology was not sufficiently developed to test the DNA evidence in the case; or (iii) The DNAtesting now requested would be significantly more accurate than priorDNA 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 other procedural requirements established by court rule. (3) The court shall grant a motion requesting DNAtesting under this section ifsuch motion is in the form required by subsection (2) ofthis section, and the convictedperson 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 be performed by the Washington state patrol crime laboratory. Contact with victims shall be handled through victim/witness divisions. RCW 10.73.170. The statute was adoptedto qualifY Washington State for federal funding under the Justice ForAll Act of2004. Pub. 1. No. 108-405, 118 Stat. 2260, 2261-62. The Washington statute is modeled after the federal DNAtesting 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 DNAtesting would provide significant
new information; explain why DNA evidence is material to the identity ofthe perpetrator; and comply with applicable court rules. RCW 1O.73.107(2)(a)-(c). Here, the trial court properly determined that Allen met the procedural requirements ofRCW 1

0.73.170(2)(a)(iii), since DNA testing was not done prior to trial.



### 5No. 31578-9-III State 

### v. Allen
At issue is whether Anthony Allen satisfied the substantive requirements ofRCW 10.73.170. In contrast to the statute's lenientprocedural requirements, its substantive standard is onerous. State v. Riofla, 166 Wn.2d 358,367,209 P.3d 467 (2009). RCW 10.73.170(3)provides, "The court shall grant a motion requesting DNA testing under this section if
...the convicted person has shown the likelihood that the DNA evidence would demonstrate innocence on a moreprobable than not basis." A motion for testing is not decided in avacuum. State v. Riofla, 166 Wn.2d at 367-68. The statute requires a trial court to grant a motion for postconviction testing when exculpatory results would, in combination with the other evidence, raise a reasonable probability the petitionerwas not the perpetrator. Riofla, 166 Wn.2d at 367-68. The legislature intended to restrict the availability ofpostconviction DNA testing to a limited class ofextraordinary cases where the results could exonerate aperson who was wrongfully convicted ofa crime. Riofla, 166 Wn.2d at 369 

### nA. Case law supports using a favorable presumption when deciding whetherto grant
a motion for post-conviction DNA testing. We formally hold that this presumption is part ofthe standard in RCW 10.73.170. A court should look to whether, considering all the evidence from trial and assuming an exculpatory DNA test result, it is likely the individual is innocent on a more probable than notbasis. Ifso, the court should grant the motion and allow testing to be done. Only then 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 court used a standard that included use ofa favorable presumption. In its conclusions oflaw, the trial court stuck to the statutory language, with
no mention ofa presumption offavorability orhypothetical inferences from an exculpatory test result. Since we have found that this presumption is part ofWashington law and should be 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 1015,306P.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 herroom. Id. The man covered her head with bedding and raped her five times, four times anally and once vaginally. Id. In between each rape, he rummaged through different rooms in the house for valuables. Id. The woman was unable to give a good description ofthe rapist due to the darkroom and her head being covered during the encounter. Id. Anthony Allen argues that DNAevidence would show that he was mistakenly identified as the assailant. The Riofla court accepted that mistaken eyewitness 7No. 31578-9-

### III 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 DNA test 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 tothe house ofVeasna Sok. Sokpreviously agreed to testify 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 or five years. Riofta fled the scene leaving behindthe white hat and revealing his shaved head. The hat was later identified as belonging to the owner ofthe stolen vehicle. The State did not analyze the hat for DNA evidence. Riofta was found guilty offirst degree assault with a firearm. Rioftathenpetitioned for postconviction DNA testing ofthe white hat. TheRiofta court analyzed the impact ofDNAtesting by recognizing that other people's DNA couldbe found on the hat, and that AlexanderRiofta's DNA may not be found on the hat. Most likely, Riofta was not the only person to wearthe hat. Thehat's original owner could have worn the hat along with either ofthe two accomplices in the
car. Thepresence ofother's DNA would not show the defendant's innocence on a more probable than not basis. Perhaps more importantly, theRiofta court underlinedthe fact thatthe 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 atthe time ofthe attack. Whenpolice first interviewed Sok, he promptly provided Riofta's
name and an accurate physical description. Riofta should bejuxtaposed with State v. Thompson, 173 Wn.2d 865, 271 P.3d 204 (2012). In the latter case, the statehigh courtreversed the denial ofBobby Ray Thompson's request for DNA testing 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 under the 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 onthe knife does not make it more probable than not that Allen is innocent. Allen argues that the presence ofhis blood on the knife would make itunlikely that he wielded the 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. 3 I578-9-III State v. Allen
The presence ofAnthony Allen's DNA on the knife would only show that Allen
was close enough to the altercation to be involved. Allen does not claim to be a victim. Therefore, the presence ofhis DNAwould further implicate him as the assailant. If Allen's DNA is not found on the knife it would merely show that his DNAwas 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. Allen was one ofthree assailants, all ofwhom were in Hudson's house and couldhave 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 that he was mistakenly identified as the assailant. LikeRiofta, 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 attrial. 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. We mustview the evidence in the light that the DNA testing will be favorable

10No. 31578-9-III State v. Allen
STATEMENT OF ADDITIONAL GROUNDS (SAG) Anthony Allen brings two claims in his SAG. First, Allen claims the trial court's denial ofhis motion for postconvictionDNA 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 inRiofta v. State, 134 Wn. App. 669, 692,142 P.3d 193 (2006), review grantedinpart, 161 Wn.2d 1001, 166 P.3d 718 (2007), ajJ'd, 166 Wn.2d 358, 209 P.3d 467 (2009). Second, Anthony Allen claims he was not afforded effective assistance of appellate counsel in violation ofthe Sixth Amendment to the United States Constitution and article I, section 22 ofthe Washington Constitution. IfAllen believes he received ineffective assistance on appeal then he should file a personal restraint petition with this courtpursuant to RAP 16.4. The current record is insufficient to address this issue. Allen's SAG presents no error for which this court couldprovide relief. CONCLUSION We affirm the trial court's denial ofAnthony Allen's petition for DNAtesting. A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to

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### No. 31578-9-111 State v. Allen
RCW 2.06.040.

WE CONCUR:

# ~)~**~(\** Brown, A.C.J. Lawrence-Berrey, J.

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