      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                       )
                                           )     DIVISION ONE                                (i)

                      Respondent,          )                                         .."11

                                           )     No. 75903-5-1                               ca
                 V.                        )                                                            ,
                                           )                                                 rz:r. r
                                                 PUBLISHED OPINION                           > 1T1
                                                                                             cn rri
KEVIN JORY BRAA,                           )                                                      ›.0

                                           )
                      Appellant.           )                                                 cp c)
                                           )     FILED: February 12, 2018
                                           )
       DWYER, J. — Kevin Braa appeals from the superior court's order denying

his postconviction motion to conduct a DNA (deoxyribonucleic acid) test of

evidence in his case. Braa contends that the superior court erred by reasoning

that such testing is not available in self-defense cases because a favorable test

result would not identify a different person as the perpetrator of the crime. Braa

also contends that the superior court erred by denying his motion on the ground

that he did not show that a favorable DNA test result would, on a more probable

than not basis, establish his innocence.

       We conclude that the superior court erred by ruling that, in effect,

postconviction DNA testing is not available in self-defense cases. However, we

also conclude that the superior court did not err by ruling that a favorable DNA

test result would not, on a more probable than not basis, establish Braa's

innocence.
No. 75903-5-1/2

       Accordingly, we affirm the superior court's decision to deny the requested

testing.



       The circumstances of Braa's crime of conviction are set forth in an

unpublished opinion, State v. Braa, noted at 150 Wn. App. 1035, 2009 WL

1591369, as follows:

               On the evening of November 11, 2006, Kevin Braa was
       sitting at the bar reading a book in Kuhnle's Tavern in Marysville.
       Simeon Whitney was there playing pool with his brother, Roger
       Enick, and a friend, Kenny Celestine. Whitney, Enick, and
       Celestine are Native American and went to Kuhnle's Tavern
       because it is a hangout for Native Americans.
               Enick and another bar patron argued over a game of pool,
       and the other patron used racial slurs about Native Americans. At
       some point, Braa went over to the pool table and made offensive
       comments toward Enick. Whitney pushed Braa out of the way and
       told him,"Leave my homeboy alone." Braa told Whitney,"Go back
       to Mexico where you belong. You're a sub-human." When the
       bartender heard this, she told Braa that he would be asked to
       leave if he continued to talk that way. Braa did not comply, so she
       escorted him to the back door. A minute or two later, Whitney
       went out through the same door.
               A fight ensued between Whitney and Braa outside behind
       Kuhnle's Tavern. Witnesses saw Whitney repeatedly punch Braa
       and pull Braa's shirt up over his head. After the fight, Whitney
       started toward the back door of Kuhnle's, and Braa went over to
       his truck. Braa fired four to six shots at or toward the back door.
       Some witnesses saw Braa standing by his truck with the door
       open and his arm extended as he fired. Whitney staggered
       through the back door and collapsed by the bathrooms. When the
       bartender heard the gunshots and saw Whitney on the floor, she
       ducked down and called 911. Two witnesses saw Braa drive away
       in a white Chevy S-10 pickup.
               A police officer who happened to be a few blocks away
       heard the gunshots and responded to the scene. Whitney had a
       pulse but was bleeding from the abdominal area and was
       nonresponsive. He was airlifted to Harborview and died en route.
       Later, an autopsy determined Whitney had suffered four gunshot
       wounds. The wounds showed that the bullets traveled from back
       to front through Whitney's body. One bullet and fragments from
       another were recovered from his abdomen. Another bullet exited

                                        2
No. 75903-5-1/3

      through the front of his abdomen. The cause of Whitney's death
      was shock, trauma, and loss of blood due to the gunshot wounds.
               Officers found bullet jacket fragments near where Whitney
      had lain. There were shell casings in the parking lot, as well as
      the book the defendant had been reading at the bar. Detectives
      recovered three bullets and bullet shrapnel from the back door
      area and the carpet just inside the back door. There were two
      indentations in the metal of the back door, which were consistent
      with bullet strikes. Detectives also located a bullet hole in an
      interior wall just inside the back door. Forensic analysis later
      confirmed that the bullet taken from Whitney's abdominal wall and
      the bullet found by the back door were fired from the same gun.
      The four shell casings found in the parking lot were compared and
      it was forensically determined that all had been fired from one gun.
               Braa lived in a two-bedroom trailer that he shared with a
      roommate, Lenny Graff. Braa returned home around 10:30 on the
      night of the crime and asked Graff to get some beer, which Graff
      did. Graff recalled that Braa looked like he had been in a fight,
      with black eyes and a bloody nose. When Graff returned with the
      beer, Braa had changed his clothes and no longer looked dirty or
      bloody. Graff asked what had happened, and Braa told him that
      he had "killed a subhuman." When Graff asked what a subhuman
      was, Braa responded, "It means if you're not white, you're not
      right." He told Graff he had been jumped by some Mexicans who
      wanted to steal his wallet. He refused to discuss further the topic
      of killing someone and asked Graff to lie and say he had been
      home all night.
               That night, Braa parked his car several feet further from the
      roadway than he usually did, and he did not move it for the next
      three days. On November 14, 2006, officers arrived at Braa's
      trailer to execute a search warrant and arrest him. They could see
      Braa inside, through the kitchen window. They announced their
      presence over the patrol car PA systems. They also used a
      "hailer," a box equipped with a loudspeaker, a handle for throwing,
      and hundreds of feet of cable, to communicate with Braa. Several
      times, an officer announced,"Kevin Braa, this is the Sheriff's
      Office. We have a warrant for your arrest. Identify yourself and
      surrender," but Braa did not come out. Officers shone lights into
      the home, and a helicopter was also used to illuminate the area.
      After Braa failed to respond to repeated voice commands, officers
      deployed two pepper spray projectile canisters through a window
      of the trailer. Braa came outside a few seconds later, complied
      with officers' verbal instructions, and was taken into custody.
               Four and a half months later, while doing yard work, Graff
      discovered a plastic garbage bag under the deck of the trailer.
      Inside, he discovered Braa's 9mm semiautomatic Ruger handgun.


                                        3
No. 75903-5-1/4

      He called 911, and police picked up the gun. Forensic analysis
      confirmed that the bullet extracted from Whitney's abdominal wall
      had been fired from that weapon and that one of the four spent
      shell casings found in the parking lot had also been fired from that
      weapon. The other bullets and casings were not analyzed
      because it had already been determined that they had been fired
      from the same weapon as the tested bullet and casing. An expert
      in trajectory analysis testified that at least one bullet had been shot
      from a height of about four and a half feet, within 10 feet of where
      bullet fragments were imbedded in the wall inside the tavern. The
      evidence was consistent with the trajectory from a gun held by a
      person of average height while standing up.
              At trial, Braa conceded that he shot the gun and argued that
      it had been in self-defense. He testified that he had a verbal
      exchange with some guys he thought were Mexican and that he
      had called them "Mexicans" and "sub-humans" and "invited them
      to go back to their own country." He recalled that the bartender
      had asked him to be quiet and go sit down, and he testified that he
      did so. Shortly afterward, he left the bar through the back door
      and as he was leaving was hit over the head and lost
      consciousness. When he came to, he was being beaten by an
      unknown assailant. He did not fight back but tried to protect
      himself by curling up. He tried to get away but was beaten more
      and shoved to the ground. He thought he was going to be beaten
      until he was killed. After being slammed into a vehicle, he got his
      gun out and fired immediately. He testified that he was slumped,
      lying on the ground when he fired.
              Braa was charged with second degree murder and, in the
      alternative, first degree manslaughter. The jury found Braa guilty
      of the alternate charge of first degree manslaughter.

Braa, 2009 WL 1591369, at *1-3.

       Nine years after his conviction, Braa filed a motion in the superior court

seeking DNA testing of a drop of blood taken from the parking lot of the tavern on

the night that Whitney was shot. Braa argued that the DNA test would reveal

new information suggesting that Whitney had bled in the parking lot, thereby

rsupporting Braa's trial defense that he had shot Whitney in self-defense while

Whitney was standing in close proximity over him.




                                         4
No. 75903-5-1/5

       The superior court denied the motion on two separate grounds. The

superior court first concluded that Braa failed to satisfy the DNA testing statute's

requirement that the petitioner show that DNA testing is material to the identity of

the perpetrator of the crime. This was so, the superior court concluded, because

"the identity of the shooter (the defendant) is undisputed." The superior court

also concluded that Braa's motion failed to establish that "favorable DNA

evidence, when considered along with all of the other evidence, would not

demonstrate his innocence on a more probable than not basis."
                                          II

       Braa contends that the superior court erred by denying his postconviction

motion to conduct a DNA test of the blood drop.

       We review the superior court's decision on such a motion for abuse of

discretion. State v. Crumpton, 181 Wn.2d 252, 257, 332 P.3d 448(2014)(citing

State v. Riofta, 166 Wn.2d 358, 370, 209 P.3d 467 (2009)). The superior court

"abuses its discretion if the decision rests on facts unsupported in the record or

was reached by applying the wrong legal standard." Crumpton, 181 Wn.2d at

257(citing State v. Rafay, 167 Wn.2d 644, 655, 222 P.3d 86 (2009)).

      "RCW 10.73.170 provides a mechanism under Washington law for

individuals to seek DNA testing in order to establish their innocence."   Crumpton,
181 Wn.2d at 258. The statute provides:

       DNA testing requests. (1) A person convicted of a 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:


                                          5
No. 75903-5-1/6

              (a) State that:
              (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.

RCW 10.73.170.

       On appeal, Braa challenges the superior court's determinations that his

motion did not satisfy subsections (2)(b) and (3) of RCW 10.73.170. We discuss

each ruling in turn.

                                         A

       Braa first contends that the superior court erred by denying his

postconviction motion on the basis that his request did not demonstrate that the

evidence he sought to test was material to the identity of the perpetrator of the

crime. If the test result supports his defense of self-defense, Braa argues, then

,he can show that he acted lawfully—and was not the perpetrator of any crime.

His contention has merit.

       The procedural requirements set forth in RCW 10.73.170(2) are "lenient."

Riofta, 166 Wn.2d at 367. As indicated, subsection (2)(b) requires that a motion




                                         6
No. 75903-5-1/7

to conduct a DNA test of evidence "[e]xplain why DNA evidence is material to the

identity of the perpetrator of ... the crime." RCW 10.73.170(2)(b).

       No prior appellate decision has discussed whether RCW 10.73.170(2)(b)

is satisfied by a motion setting forth that DNA evidence supporting a claim of self-

defense is material to the identity of the perpetrator of a crime. Thus, our inquiry

begins with an examination of the statute itself. This requires that we apply

familiar and recognized principles of statutory construction.

      The meaning of a statute is a question of law reviewed de novo.
      Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43
      P.3d 4(2002). The fundamental objective of the court is to carry
      out the legislature's intent and give effect to the statute's plain
      meaning. Id. "[T]he plain meaning rule requires courts to consider
      legislative purposes or policies appearing on the face of the statute
      [as well as] background facts of which judicial notice can be taken.'"
      Id. at 11 (quoting 2A Norman J. Singer, STATUTES AND STATUTORY
      CONSTRUCTION § 48A:16, at 809-10(6th ed. 2000)).

Riofta, 166 Wn.2d at 365.

      "Perpetrator" is not defined in chapter 10.73 RCW. When the legislature

has not defined a term, we look to dictionary definitions to determine the term's

Plain meaning. Buchheit v. Geiger, 192 Wn. App. 691, 696, 368 P.3d 509

(2016). A well-recognized dictionary defines "perpetrator" as "one that

perpetrates esp. an offense or crime." WEBSTER'S THIRD NEW INTERNATIONAL

,DICTIONARY 1684 (2002). Further, "perpetrate" is defined as "to be guilty of(as a

crime, an offense)." WEBSTER'S,supra, at 1684. Hence, a person who commits

a crime is a perpetrator. Logically, a person who does not commit a crime is not

a perpetrator. This understanding aligns with the goal of the DNA testing

,statute—to make DNA testing available "as a way to ensure an innocent person

is not in jail." Crumpton, 181 Wn.2d at 258.

                                         7
No. 75903-5-1/8

       Braa's trial defense was not that someone else committed the crime at

issue. Instead, his defense was that no crime was committed because he acted

in lawful self-defense. In this way, he attempted to show that he was not a

perpetrator.

       A person who kills in lawful self-defense is not a perpetrator because

justifiable homicide is not a crime. RCW 9A.16.050.1 Therefore, if a person

convicted of manslaughter was actually engaging in lawful self-defense while

causing the death, that person was misidentified as the perpetrator of the

manslaughter crime. Indeed, a valid self-defense claim establishes that there

was no perpetrator.

       Accordingly, when DNA evidence supports the assertion that the jury's

verdict wrongfully identified the petitioner as the perpetrator of a crime even

though the petitioner had, in actuality, acted in lawful self-defense, such evidence

is material to the "identity of the perpetrator" within the meaning of RCW

10.73.170(2)(b).

       The State nevertheless contends that the superior court did not err in

denying Braa's motion for failing to satisfy subsection (2)(b). This is so, the State




       1 RCW 9A.16.050 reads:
       Homicide—By other person—When justifiable. Homicide is also justifiable
       when committed either:
                (1) In the lawful defense of the slayer, or his or her husband, wife,
       parent, child, brother, or sister, or of any other person in his or her presence or
       company, when there is reasonable ground to apprehend a design on the part of
       the person slain to commit a felony or to do some great personal injury to the
       slayer or to any such person, and there is imminent danger of such design being
       accomplished; or
                (2) In the actual resistance of an attempt to commit a felony upon the
       slayer, in his or her presence, or upon or in a dwelling, or other place of abode, in
       which he or she is.


                                                8
No. 75903-5-1/9

asserts, because Braa's identity as the shooter was undisputed at trial and,

therefore, the evidence sought to be tested cannot be material to the identity of

the perpetrator in Braa's case.

       The State's argument misreads subsection (2)(b) by confusing "shooter"

with "perpetrator." Subsection (2)(b) does not require a showing that the

evidence is material to the identity of the shooter but, rather, it requires

materiality to the "identity of the perpetrator." RCW 10.73.170(2)(b)(emphasis

added). "Shooter" and "perpetrator" are not synonymous.

       The State's argument suffers from yet another failing. The State argues

that postconviction DNA testing is not available in self-defense claims, even if the

test result might establish the innocence of the petitioner. But the State cannot

explain why the legislature would have enacted a statute designed to free

some—but not all—innocent persons. We see no suggestion in RCW 10.73.170

of such a perverse legislative intent.

       The superior court erred by denying Braa's motion on the ground that it

did not satisfy RCW 10.73.170(2)(b).



       Braa next contends that the superior court erred by denying his motion to

conduct a DNA test of the blood spot on the basis that he did not demonstrate

that a favorable DNA test result would establish his innocence on a more

probable than not basis. We disagree.

       The substantive requirement of RCW 10.73.170(3) is "onerous."

Crumpton, 181 Wn.2d at 261 (quoting Riofta, 166 Wn.2d at 367).



                                           9
No. 75903-5-1/10

        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.

RCW 10.73.170(3).

        In determining whether a petitioner has satisfied this requirement, our

Supreme Court has instructed that the petitioner is entitled to the "favorable

presumption" of an "exculpatory DNA test result." Crumpton, 181 Wn.2d at 260.

But in considering the petitioner's motion pursuant to subsection (3), the superior

court

        should not ignore the evidence from trial. It must look at DNA
        evidence in the context of all the evidence against the individual
        when deciding the motion. Riofta, 166 Wn.2d at 368. It is only
        within the context of the other evidence that the court can
        determine whether DNA evidence might demonstrate innocence.

Crumpton, 181 Wn.2d at 262 (footnote omitted).

        Accordingly, we "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." Crumpton, 181 Wn.2d at 260.

        Assuming a favorable DNA test result and considering all of the evidence

Presented at trial, the record supports the superior court's conclusion that Braa

did not establish his innocence on a more probable than not basis.

        A DNA test of the drop of blood found in the parking lot of the tavern would

determine that the blood came from one of three potential sources: Braa,
                                                                        •




                                       - 10-
No. 75903-5-1/11

Whitney, or a third party. A favorable DNA test result would be that the DNA was

Whitney's.2

        Braa contends that, in addition to a favorable inference as to the DNA test

result, he is further entitled to a favorable inference as to how Whitney's drop of

blood came to be located in the parking lot.

        However, Braa establishes no basis for such an inference. The statutory

scheme places the burden of demonstrating the entitlement to a DNA test on the

Petitioner. RCW 10.73.170(2),(3). As an initial matter, Braa presents no

argument or authority in support of his interpretation of RCW 10.73.170.
Furthermore, neither our Supreme Court nor this court has held that a petitioner

is entitled to additional inferences in his favor beyond the assumption of a

favorable DNA test result. See, e.g., State v. Thompson, 173 Wn.2d 865, 875,

271 P.3d 204(2012)(discussing whether DNA test results would exclude

petitioner's DNA); Riofta, 166 Wn.2d at 370 (discussing that DNA test of white

hat could result in two favorable test results for petitioner); State v. Gray, 151

Wn. App. 762, 774, 215 P.3d 961 (2009)(discussing possible favorable DNA test

results). Nothing in the statutory scheme authorizes an inference in Braa's favor

to be drawn from the inference of a favorable test result.

        Braa wants it to be that the existence of a drop of Whitney's blood in the

parking lot necessarily means that he suffered a gunshot at that spot. However,

even if the drop of blood was Whitney's, this does not necessarily follow. That a


          2 If the DNA belonged to Brae, it would not be favorable to him because it would prove
nothing about Whitney's location when he was shot. Similarly, if the DNA belonged to a third
party, it would not support Braa's self-defense claim. If the DNA belonged to Whitney, however, it
could support Braa's self-defense theory by placing Whitney's blood in the parking lot.
No. 75903-5-1/12

drop of Whitney's blood came from a gunshot wound he incurred while standing

near Brea is not the only possible conclusion available. Indeed, there are three

possibilities as to how a drop of Whitney's blood might have been deposited in

the parking lot: from the fistfight between Whitney and Brea,from Whitney's

gunshot wound, or from a third party unintentionally tracking Whitney's blood

from one location—e.g., near the rear door of the tavern—into the parking lot.

       At trial, Brae testified that, after he had been "lifted up and slammed" into

a vehicle and was lying on the ground in fear for his life, he drew his gun, aimed

upwards, and fired in the direction of the person standing in close proximity over

him. This person was Whitney.

       But even assuming that the drop of blood found in the parking lot was

Whitney's, the evidence introduced at trial strongly contradicts Braa's self-

defense theory. The evidence established that Whitney had been shot in the

back at least three times. It further established that the bartender heard a burst

of gunshots contemporaneously with Whitney crashing through the rear door of

the tavern, 30 feet away from where Brae was seen to have fired the gunshots.

In addition, the evidence established that there was a great deal of blood in the

area of the rear door of the tavern.

       Moreover, three witnesses testified that they saw Braa firing a burst of

gunshots in the direction of the rear door of the tavern while he was alone in the

parking lot. One of the three eyewitnesses also testified that he saw Brae alone

in the parking lot both before and after the shots were fired. Two of the




                                        - 12 -
No. 75903-5-1/13

eyewitnesses also testified that they saw Braa fire his gun while standing up,

rather than while lying on the ground.

        Bullet trajectory analysis testified to at trial further supported that the

gunshots were fired from a standing position. Additional analysis of the

indentations in the walls of the tavern and bullet fragments found in and near the

rear door of the tavern established that multiple gunshots had been fired in that

direction.
        In addition, other testimony showed that Braa hid the gun in question

under his porch. This supported the State's theory that Braa had a guilty

conscience arising from his slaying of Whitney. Such a guilty conscience is

incompatible with Braa believing that he had acted in lawful self-defense by

shooting Whitney. Braa also admitted that, before he went to the tavern's

parking lot, he had been angry because a "subhuman" had pushed him and

wounded his pride.

        On a more probable than not basis, a favorable DNA test result (that a

drop of Whitney's blood was located in the parking lot) when considered

'alongside the evidence adduced at trial would not demonstrate that Braa is likely

innocent. Accordingly, the superior court did not abuse its discretion by denying

his request for DNA testing.3




         3 Braa filed a pro se statement of additional grounds for review. It raises no issue
;meriting analysis.


                                               - 13-
No. 75903-5-1/14

      Affirmed.




We concur:




                   - 14 -
