FILED 


OCTOBER 9, 2014 


In the Office of the Clerk of Court 


W A State Court of Appeals, Division III 


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 


DIVISION THREE 


STATE OF WASHINGTON, ) 

) No. 31578-9-III 

Respondent, ) 

) 

v. ) 

) 

ANTHONY LAMAR ALLEN, SR, ) UNPUBLISHED OPINION 

) 

Appellant. ) 

FEARING, J. - Deoxyribonucleic acid (DNA) testing is a relatively new 

technology, but the many benefits ofDNA testing have caused the use ofthese methods 

to explode in a wide variety ofapplications. Some ofthe most well-known benefits of 

DNA testing have been seen in the arena of criminal justice. The guilty are found and 

convicted, and the innocent are exonerated, all on the basis ofmicroscopic evidence that 

is more unique than a fingerprint. DNA evidence is particularly helpful when a victim 

misidentifies an assailant he or she did not know. 

A jury convicted Anthony Allen ofthe crimes of kidnapping and assault. Anthony 

Allen filed a motion for postconviction DNA testing. Allen contended that (l) negative 

DNA results would, in combination with other evidence, raise a reasonable probability 
No. 31578-9-111 

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. From the 

trial court's denial of the motion, Allen appeals. We affirm the trial court. Although 

DNA testing serves a worthwhile purpose, its employment is not helpful here, since the 

victims of the crimes were acquaintances of Anthony 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 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from that unpublished opinion and supplemented by the current record.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 went to 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's house. Hudson 

and Jones had known Anthony Allen for many years. 

When Karla Jones and Dewey Hudson reached the porch of the 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 the jaw with the butt of the butcher knife. 

Allen then used the butcher knife to slash Jones' hair. Allen threatened to kill Jones if 

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No. 3 I 578-9-II1 

State v. Allen 

she "messed" with his aunt again. Clerk's Papers at 112. Allen hit Hudson with 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 took her dog, 

ran home, and called the police. Officer Eugene Baldwin went to Jones' home within 10 

minutes of Jones' phone call. Officer Baldwin saw injuries to Jones' head and face. 

Jones told Officer Baldwin that Allen and another man assaulted her and Hudson. 

Officer Baldwinjoumeyed 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 Officer Baldwin that he and 

Jones were assaulted. Hudson told Officer Baldwin that Allen hit him in the face and 

head with a handgun when he had tried to intervene. Officer Baldwin recovered the 

butcher knife from the home. The butcher knife had blood on the blade. Two blood 

swabs of that blood were taken, but DNA testing was not conducted. 

PROCEDURE 

On September 25, the State of Washington charged Anthony Allen with first 

degree kidnapping and two counts of second degree assault with a deadly weapon. 

Dewey Hudson's testimony at trial differed from his statement to Officer Baldwin 

at the scene ofthe crime. Hudson testified that he incurred his injuries when he tried to 

remove Karla Jones from his house. Hudson further testified that he did not remember 

talking to Officer Baldwin and denied that Anthony Allen assaulted him. 

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No. 31578-9-III 

State v. Allen 

Officer Baldwin testified that, after he described to Dewey Hudson, on the day of 

the assault, the extent ofKarla Jones' injuries, Hudson grew receptive to telling the truth. 

Officer Baldwin repeated for the jury Hudson's earlier version of events, in which 

Hudson intervened to protect Jones, but Allen hit him with a handgun. 

On December 20, a jury found Anthony Allen guilty of first degree kidnapping 

and two counts of second degree assault with a deadly weapon. By special verdict, the 

jury found that the deadly weapon was not a firearm. 

On November 29, 2012, Anthony Allen moved, under RCW 10.73.170, for 

postconviction DNA testing of the blood found on the knife. The trial court denied his 

motion on the ground that testing 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. The petitioner must satisfY both 

procedural and substantive requirements of the statute. RCW 10.73.170(2), (3). The 

statute, adopted in 2000, reads in pertinent part: 

(1) A person convicted ofa felony in a Washington state court who 

currently is serving a term of imprisonment may submit to the court that 

entered the judgment of conviction a verified written motion requesting 

DNA testing, with a copy of the motion provided to the state office of 

public defense. 

(2) The motion shall: 

(a) State that: 

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No. 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 now requested would be significantly more 

accurate than prior DNA testing or would provide significant new 

information; 

(b) Explain why DNA evidence is material to the identity of the 

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 DNA testing under 

this section if such motion is in the form required by subsection (2) of this 

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 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 adopted to qualifY Washington State for federal 

funding under the Justice For All Act of 2004. Pub. 1. 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 of the 

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. 

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No. 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 lenient procedural 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 more probable than not basis." A motion for testing is 

not decided in a vacuum. 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 petitioner was not 

the perpetrator. Riofla, 166 Wn.2d at 367-68. The legislature intended to restrict the 

availability ofpostconviction DNA testing to a limited class of extraordinary cases where 

the results could exonerate a person who was wrongfully convicted of a crime. Riofla, 

166 Wn.2d at 369 nA. 

Case law supports using a favorable presumption when deciding whether to grant 

a motion for post-conviction DNA testing. We formally hold that this presumption is 

part of the 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 not basis. If so, the court should grant the 

motion and allow testing to be done. Only then can it be determined whether the DNA 

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No. 31578-9-III 

State v. Allen 

actually exculpates the individual and if the results could be used to support a motion for 

a new trial. 

In other words, a court should evaluate the likelihood of innocence based on a 

favorable test result, not the likelihood of a favorable test result in the first place. There 

is no indication that the trial court used a standard that included use of a favorable 

presumption. In its conclusions of law, the trial court stuck to the statutory language, with 

no mention of a presumption of favorability or hypothetical inferences from an 

exculpatory test result. Since we have found that this presumption is part of Washington 

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 1015,306 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. 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 of the rapist due to 

the dark room and her head being covered during the encounter. Id. 

Anthony Allen argues that DNA evidence would show that he was mistakenly 

identified as the assailant. The Riofla court accepted that mistaken eyewitness 

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No. 31578-9-III 

State v. Allen 

identification is a leading cause of wrongful conviction. 166 Wn.2d at 371; see also 

Brandon L. Garrett, Judging Innocence, 108 COLUM. L. REv. 55, 60 (2008). The court 

addressed mistaken eyewitness identification by analyzing both the impact of a favorable 

DNA test and the likelihood of misidentification. 

Riofta controls our decision. Alexander Riofta stole a vehicle in which he found a 

white hat. He wore the white hat when he, accompanied by two others, pulled up to the 

house ofVeasna Sok. Sok previously 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 of four or five 

years. Riofta fled the scene leaving behind the white hat and revealing his shaved head. 

The hat was later identified as belonging to the owner of the stolen vehicle. The State did 

not analyze the hat for DNA evidence. Riofta was found guilty of first degree assault 

with a firearm. Riofta then petitioned for postconviction DNA testing of the white hat. 

The Riofta court analyzed the impact ofDNA testing by recognizing that other 

people's DNA could be found on the hat, and that Alexander Riofta's DNA may not be 

found on the hat. Most likely, Riofta was not the only person to wear the hat. The hat's 

original owner could have worn the hat along with either of the two accomplices in the 

car. The presence of other's DNA would not show the defendant's innocence on a more 

probable than not basis. 

Perhaps more importantly, the Riofta court underlined the fact that the victim 

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No. 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 of the attack. When police first interviewed Sok, he promptly provided Riofta's 

name and an accurate physical description. 

Riofta should be juxtaposed with State v. Thompson, 173 Wn.2d 865, 271 P.3d 

204 (2012). In the latter case, the state high court reversed the denial of Bobby Ray 

Thompson's request for DNA testing of vaginal 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 relief for 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 of DNA or the presence of other person's DNA on the hat in Riofta 

did not make the defendant's innocence more probable; the lack of or the existence of 

Anthony Allen's DNA on the knife does not make it more probable than not that Allen is 

innocent. Allen argues that the presence of his blood on the knife would make it unlikely 

that he wielded the knife during the assaults. He alternatively argues that, if DNA testing 

excludes him as a contributor to the DNA, the exclusion would exonerate him as the 

assailant. Both arguments are illogical. 

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No. 3 I 578-9-III 

State v. Allen 

The presence of Anthony 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 of his 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. If another person's DNA 

was found on the knife, it would only show that at some point prior to the assault 

someone else handled the knife. Allen was one of three assailants, all of whom 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 of DNA. 

Anthony Allen argues that DNA evidence would show that he 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 prior relationship between Hudson, Jones, and Allen reduced the 

possibility that Allen was mistakenly identified as the assailant. 

We must view the evidence in the light that the DNA testing will be favorable 

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No. 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 of his motion for postconviction DNA testing violates his due process rights under 

the Fourteenth Amendment to the United States Constitution and article I, section 3 ofthe 

Washington Constitution. This court rejected this same argument in Riofta v. State, 134 

Wn. App. 669, 692,142 P.3d 193 (2006), review granted in part, 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 of the Washington Constitution. If Allen believes he received 

ineffective assistance on appeal then he should file a personal restraint petition with this 

court pursuant 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 of Anthony Allen's petition for DNA testing. 

A majority of the 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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