                          NOT DESIGNATED FOR PUBLICATION

                                             No. 121,039

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                         STATE OF KANSAS,
                                             Appellee,

                                                   v.

                                         CRAIG L. GOOCH,
                                            Appellant.


                                  MEMORANDUM OPINION

       Appeal from Reno District Court; TIMOTHY J. CHAMBERS, judge. Opinion filed June 5, 2020.
Affirmed.


       Kai Tate Mann, of Kansas Appellate Defender Office, for appellant.


       Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.


Before POWELL, P.J., GARDNER, J. and WALKER, S.J.


       PER CURIAM: Following Craig L. Gooch's convictions and multiple appeals, a
panel of this court remanded this case to the district court to order postconviction DNA
testing on Gooch's fingernail clippings and hand swabs. Test results revealed no DNA
from the victim. After a hearing, the district court denied Gooch's motion for a new trial,
finding there was not a reasonable probability of a different outcome at trial. Gooch now
appeals, claiming the district court erred. After a careful review, we find no reversible
error by the district court and affirm.




                                                   1
                          FACTUAL AND PROCEDURAL BACKGROUND


       This is Gooch's fourth trek to our court. See State v. Gooch, No. 110,418, 2014
WL 5849227 (Kan. App. 2014) (unpublished opinion) (Gooch I); State v. Gooch, No.
114,886, 2017 WL 543451 (Kan. App. 2017) (unpublished opinion) (Gooch II); State v.
Gooch, No. 116,960, 2017 WL 5951700 (Kan. App. 2017) (unpublished opinion) (Gooch
III). Because previous panels have repeatedly trod this ground, the facts are largely taken
from previous opinions.


       "On May 11, 2012, then 32-year-old M.C.H. drove her gold minivan to the local Dillons
       grocery store at 8 a.m. She parked in the store's southwest parking lot, locked her
       minivan, and went inside the store. After M.C.H. purchased her groceries, she pushed
       them in a shopping cart out to her minivan. She unlocked the vehicle and put her
       groceries inside. She walked back inside the store to return her cart. M.C.H. then returned
       to her minivan and drove out of the parking lot.


               "Less than one block away from the store, M.C.H. looked in her rearview mirror
       and saw a man, later identified as Gooch, in the back of her minivan. Seconds later,
       Gooch jumped in the front passenger seat and grabbed hold of M.C.H.'s ponytail. He told
       her to drive someplace where no one would see them because he was going to rape her.
       Gooch repeatedly told M.C.H. that he had a gun and that he would kill her. M.C.H.
       testified that she was frightened and did not know what to do. She was crying and asked
       Gooch not to hurt her. Gooch held M.C.H.'s ponytail so tightly that she could not turn her
       head to see if it was safe to cross an intersection. Though M.C.H. did not see a gun, she
       believed that Gooch had one.


               "M.C.H. told Gooch that she did not know where to go. She told him that she did
       not live far away and that no one would be at her home. M.C.H. testified that she thought
       she might be able to convince Gooch to just take her vehicle, and she hoped that one of
       her neighbors would be outside and see that something was wrong. Gooch told M.C.H.
       that if anybody was at the house, he would kill her and everyone else present. As M.C.H.
       drove, Gooch kept a firm hold on her ponytail with one hand and began fondling her



                                                    2
breasts over her T-shirt with his other hand. He then put his hand inside of her sweatpants
and underwear and began rubbing her vagina.


        "When they arrived at the house, M.C.H. told Gooch to take her vehicle or
whatever he wanted, but just not to hurt her. Gooch turned off the ignition and pulled the
key out. M.C.H. thought about running if he let go of her, but she was afraid that Gooch
would shoot her if she ran. Gooch reached over M.C.H., opened the driver's side door,
and climbed out over her. He told M.C.H. to get out of the vehicle, act like nothing was
wrong, and stop crying. As they walked up to the house, M.C.H. saw that none of her
neighbors were outside.


        "Gooch and M.C.H. entered the house and Gooch shut the door behind them.
Gooch still had a hold on M.C.H.'s ponytail and pushed her over to the couch. M.C.H.
was crying and asking Gooch not to 'do this.' Gooch pulled off M.C.H.'s shirt and
unfastened her bra as she cried and tried to cover herself. He pushed her onto the couch
and removed her sweatpants and underwear. Gooch held M.C.H.'s hair with one hand,
and alternated between touching M.C.H.'s breasts and rubbing her vagina with the other.
M.C.H. tried to keep her legs closed, but Gooch penetrated her vagina with his finger.
Gooch became angry with M.C.H. for crying and hit her on the side of her head.


        "Throughout the ordeal, Gooch continued to tell M.C.H. that he had a gun and
would kill her. M.C.H. testified: 'He's just telling me how stupid I am, telling me I'm a
stupid bitch, that I just went to the store to get groceries, that he was going to rape the shit
out of me.' However, Gooch then told M.C.H. that he was not going to rape her, but was
'just going to nut on' her face. He pulled his erect penis out of his pants, pulled M.C.H. to
the side of the couch, and began to masturbate. M.C.H. closed her eyes and was crying.
Gooch ejaculated on M.C.H.'s face.


        "After allowing M.C.H. to clean up and get dressed, Gooch told M.C.H. that she
needed to drop him off at the store where she had picked him up. As they walked out of
the house, Gooch let go of M.C.H.'s hair and put his arms around her as they walked
toward the minivan. This time, one of M.C.H.'s neighbors, Santalena Caudillo, saw
M.C.H. come out of the house with Gooch. Caudillo later testified that M.C.H. looked
very ill, as though she were ready to vomit. Caudillo yelled out, 'Hey,' but M.C.H. did not



                                               3
respond. Caudillo watched as Gooch opened the door to the minivan, M.C.H. got into the
driver's seat, and Gooch climbed over her into the passenger seat. Caudillo approached
the minivan, waiving her arms and calling out M.C.H.'s name. When M.C.H. drove away
without acknowledging her, Caudillo ran to her home and called 911.


        "M.C.H. drove Gooch back to the Dillons store where she had shopped earlier
that morning. When M.C.H. pulled into the Dillons parking lot, she asked Gooch if he
was going to get out. He told her to keep driving, so she went through the parking lot.
Gooch instructed her to take several right turns and finally to stop when they reached an
alley. Gooch asked, '[Y]ou're just going to go straight back and call the police, aren't
you?' M.C.H. told him that she would not. Gooch told her that if she called the police, he
would come back to kill her and her family. Before getting out of the van, Gooch went
through M.C.H.'s purse and took $16 from her wallet.


        "After Gooch got out of the vehicle, M.C.H. tried to watch him to see where he
went. She did not know how long she sat there, but said it seemed like forever. The next
thing M.C.H. remembered was being back at her house. When she pulled up in her
driveway, M.C.H. saw Caudillo. M.C.H. was crying, and rolled down her window and
waved Caudillo over to her car. Caudillo told M.C.H. that she had called the police and
they were on their way. M.C.H. sat with Caudillo on her front porch until officers arrived.
At times, M.C.H. was hysterical and her speech unintelligible as she tried to tell Caudillo
what happened. At other times, she remained calm enough to describe the day's events.


        "Law enforcement officers arrived on the scene quickly after receiving Caudillo's
report of a possible kidnapping. M.C.H. underwent a sexual assault examination at a local
hospital. The sexual assault nurse examiner (SANE) collected swabs from M.C.H.'s face
and neck, which later were submitted to the Kansas Bureau of Investigation (KBI) lab for
DNA testing. M.C.H. told the SANE that the side of her head was very tender from being
struck. When she pulled her hair back, quite a bit of hair came out in her fingers. The
soreness to M.C.H.'s head lasted several days.


        "Police detectives secured M.C.H.'s home and began collecting potential
evidence. They observed a stain on the arm cushion of the couch that appeared to be
semen, so they collected the entire arm cushion to submit for forensic analysis. Other



                                              4
detectives went to the Dillons where M.C.H. had shopped that morning and began
reviewing the store's surveillance video. The video footage confirmed that Gooch had
walked from a house near the store and purchased a package of cigarettes at 7:57 a.m.
Gooch left the store at 7:59 a.m. and walked back to the house. He returned to the Dillons
parking lot at 8:09 a.m. Gooch first approached another woman, later identified as
Lindsay Magallanes, as she was loading her minivan. Magallanes later testified that she
did not know Gooch and had not invited him over to chat. At 8:15 a.m., Magallanes told
Gooch that she had to go inside the store to pick up a cake, at which point he walked
away. After Magallanes went inside the store, Gooch unsuccessfully attempted to open
the doors of her vehicle.


        "The video footage showed that at 8:19 a.m., M.C.H. had walked out to the
parking lot and was unloading her groceries in her minivan. At 8:20 a.m., as M.C.H.
pushed her shopping cart back inside the store, Gooch walked toward her minivan. At
8:20 a.m., the video showed a shadowy figure approaching M.C.H.'s minivan. The video
showed the figure jump into the back seat through the minivan's hatchback. At 8:21 a.m.,
M.C.H. returned to her minivan, backed out of the parking stall, and exited the parking
lot.


        "Law enforcement officers were dispatched to the house from which the suspect
depicted in the video had walked. The homeowner consented to a search, and police
found Gooch sleeping in the front room. He was placed under arrest and taken to the
police station. During an interview, Gooch gave detectives the false name of 'Dallas
Maverick' and said that he lived everywhere. He said that he had gone to Dillons to
purchase cigarettes and saw a 'home girl' who gave him a ride to another location to
purchase crack cocaine. He denied having sexual contact with the 'home girl' and said he
gave her crack cocaine in exchange for driving him to the drug deal. Gooch also denied
going to M.C.H.'s house and said his bodily fluids would not be found on her couch.


        "A KBI forensic biologist conducted DNA testing on the evidence submitted by
law enforcement. The biologist located seminal fluid containing DNA on the arm cushion
of M.C.H.'s couch and the swabbing taken from her neck that was consistent with a
known sample of Gooch's DNA. The biologist testified that the statistical probability of
the DNA coming from a person other than Gooch was 1 in 113 quintillion.



                                            5
"Procedural history


        "On May 14, 2012, the State charged Gooch with rape, a severity level 1 person
felony; aggravated kidnapping, a severity level 1 person felony; aggravated robbery, a
severity level 3 person felony; aggravated sexual battery, a severity level 5 person felony;
aggravated burglary, a severity level 5 person felony; aggravated intimidation of a victim
or witness, a severity level 6 person felony; criminal threat, a severity level 9 person
felony; and interference with law enforcement, a severity level 9 nonperson felony. The
district court appointed counsel to represent Gooch.


        ....


        "On January 22, 2013, the parties appeared before the district court for Gooch's
jury trial. Before voir dire began, defense counsel raised several preliminary matters,
including a request for another continuance to allow Gooch to locate a witness in his
defense, later identified as 'Curtis Prebble.' The State opposed a continuance, pointing out
that the case had been set for trial three times previously and the defense had sought a
continuance each time. This time, the district court denied defense counsel's request for a
continuance, finding there was no indication when and if Prebble would be found.


        "At Gooch's jury trial, the State called M.C.H., various law enforcement officers
who investigated the case, the nurse who conducted M.C.H.'s sexual assault examination,
and the KBI forensic biologist who tested the physical evidence submitted by police.
Gooch testified on his own behalf and his description of the events differed significantly
from M.C.H.'s. Gooch testified that after a night of celebrating, he ended up sleeping on
the couch at a friend's house. When he woke up, he walked to a nearby Dillons store to
buy cigarettes. He returned to his friend's house and slept a little longer until he awoke to
the sound of his friend's phone ringing. Gooch answered the phone and spoke to a woman
interested in buying drugs. He made arrangements to meet the woman in the parking lot
of the Dillons store. The woman told Gooch that she would be driving a gold-colored
van, and he told the woman he would be wearing a black and red shirt.


        "Gooch returned to the Dillons store and saw M.C.H. leave the store with a
shopping cart of groceries. M.C.H. loaded the groceries into a gold-colored minivan and



                                              6
      walked back to the store to return her cart. Gooch testified that as M.C.H. walked by, she
      told him to get in her vehicle. Gooch walked to M.C.H.'s minivan and climbed into the
      back seat through the side door. M.C.H. returned to the vehicle and exited the parking lot.
      As they drove, M.C.H. told Gooch that she had spent more money at the grocery store
      than she had planned, and thus did not have enough to pay for the drugs. She told him
      that she had more money at her house. Gooch asked M.C.H. if she would first drive him
      to the house of his friend, Prebble, to pick up his belongings. M.C.H. agreed. After
      Gooch had collected his things at Prebble's house, M.C.H. drove him to her house.


               "When they arrived, Gooch asked if he could come inside the house for a glass of
      water. Inside the house, M.C.H. found $6 or $7 and stated that was all the money she had
      to pay for the drugs. Gooch told her that she could make up the balance by performing
      oral sex on him, and she consented to do so. M.C.H. asked Gooch not to ejaculate in her
      mouth, so he ejaculated on her face instead. After the act was complete, M.C.H. went to
      the bathroom to wash up. When she returned, Gooch was preparing half a gram of crack
      cocaine for her. M.C.H, looked at the crack with surprise, and told Gooch that she wanted
      methamphetamine. Gooch did not have any methamphetamine, but told M.C.H. that he
      could get her some later that day. M.C.H. was angry, but Gooch assured her that if she
      called him later, he would make it right. M.C.H. drove him back to the area by Dillons
      and dropped him off at his friend's house where he had spent the night.


               "After hearing all the evidence, the jury found Gooch guilty of all counts. The
       district court sentenced him to a controlling prison term of 712 months. Gooch timely
       appealed his conviction." Gooch I, 2014 WL 5849227, at *1-5.


      The Gooch I panel remanded the case to the district court to hold a hearing on
Gooch's request for new counsel because the district court did not properly investigate a
potential conflict between Gooch and his attorney. 2014 WL 5849227, at *8-9. The panel
affirmed the district court on Gooch's other contentions. 2014 WL 5849227, at *9-13.




                                                   7
       On remand, the district court held a hearing and denied Gooch's request for new
counsel. Gooch appealed, and a panel of this court affirmed the district court. Gooch II,
2017 WL 543451, at *3.


       While Gooch's petition for review in Gooch II was pending before the Kansas
Supreme Court, he filed a pro se petition in the district court under K.S.A. 21-2512 for
postconviction DNA testing of his fingernail clippings and cotton swabs taken of his
hands. During a nonevidentiary hearing, the district court summarily denied Gooch's
motion, "reasoning that the evidence would not change the verdict in light of the
overwhelming evidence presented against him." Gooch III, 2017 WL 5951700, at *2.
Gooch appealed, and a panel of this court reversed, directing the district court to order
DNA testing. 2017 WL 5951700, at *4.


       DNA testing was performed. M.H.'s DNA was not present on the clippings or
swabs. Based on those results, Gooch sought a new trial. Gooch argued the DNA results
were favorable and material. The State responded the DNA testing results were not
favorable, and both parties agreed to submit their arguments on their briefs.


       On March 26, 2019, the district court issued its order denying Gooch's motion for
a new trial. The district court found the DNA test results were favorable to Gooch but
noted it had previously found the evidence supporting Gooch's conviction overwhelming
and had reviewed the jury trial transcript and clearly remembered the trial. The district
court found the evidence corroborated M.H.'s testimony, while Gooch's testimony
contradicted all the evidence. Ultimately, the district court found the lack of M.H.'s DNA
on the fingernail clippings and hand swabs was not of such materiality that a reasonable
probability existed that a different outcome would result at trial.


       Gooch timely appeals the denial of his request for a new trial.



                                              8
    DID THE DISTRICT COURT ERR IN DENYING GOOCH'S MOTION FOR A NEW TRIAL?


       Gooch argues the district court erred in finding no reasonable probability a new
trial would result in a different outcome following favorable postconviction DNA test
results. First, Gooch argues the district court committed legal errors because it relied on
dicta from the Court of Appeals taken out of context to conclude the evidence against
Gooch was overwhelming. Second, Gooch asserts the district court made factual errors
because it found Gooch's testimony contradicted all the evidence in the case and ignored
the evidence corroborating Gooch's testimony. Finally, Gooch claims those reasons also
support a finding that no reasonable person would have determined the new DNA
evidence was insufficient to raise a reasonable probability that a new trial would yield
different results. The State responds that the record supports the district court's findings
and the new DNA evidence did not raise a reasonable probability of different results
because the evidence presented at trial was overwhelming.


Standard of Review


       We review a district court's decision whether to grant a new trial or other relief
under K.S.A. 2019 Supp. 21-2512(f) for abuse of discretion. State v. LaPointe, 309 Kan.
299, 306, 434 P.3d 850 (2019). Abuse of discretion exists when the district court's action
(1) is one where no reasonable person would take the view adopted by the district court;
(2) is based on an error of law; or (3) is based on an error of fact. State v. Woodring, 309
Kan. 379, 380, 435 P.3d 54 (2019). The party asserting an abuse of discretion bears the
burden of demonstrating such an abuse exists. See State v. Thomas, 307 Kan. 733, 739,
415 P.3d 430 (2018). When evaluating the district court's factual findings, we do not
reweigh the evidence or assess witness credibility. Woodring, 309 Kan. at 380.




                                              9
Analysis


       K.S.A. 2019 Supp. 21-2512(f)(2) directs the steps a district court should take
following postconviction DNA testing, if the results are favorable:


               "If the results of DNA testing conducted under this section are favorable to the
       petitioner and are of such materiality that a reasonable probability exists that the new
       evidence would result in a different outcome at a trial or sentencing, the court shall:


               "(A) Order a hearing, notwithstanding any provision of law that would bar such a
               hearing; and


               "(B) enter any order that serves the interests of justice, including, but not limited
               to, an order:


                        (i) Vacating and setting aside the judgment;


                        (ii) discharging the petitioner if the petitioner is in custody;


                        (iii) resentencing the petitioner; or


                        (iv) granting a new trial."


       "Applying its plain language, this provision means favorable testing alone does
not mean the district court must grant a defendant affirmative relief." LaPointe, 309 Kan.
at 305. Instead, a movant must establish "(1) the postconviction DNA test results are
favorable and (2) the new DNA '"evidence . . . [is] of such a materiality that a reasonable
probability exists that it would result in a different outcome at trial. [Citations omitted.]"'"
Haddock v. State, 295 Kan. 738, 756-57, 286 P.3d 837 (2012) (Haddock III). The district
court should examine the potential impact of the evidence as a whole and in light of "'"all
the evidence,'" old and new, incriminating and exculpatory, without regard to whether it



                                                      10
would necessarily be admitted . . . "at trial."'" Haddock III, 295 Kan. at 767 (quoting
House v. Bell, 547 U.S. 518, 538, 126 S. Ct. 2064, 165 L. Ed. 2d 1 [2006]).


       M.H.'s DNA was absent from the DNA testing of Gooch's fingernail clippings and
hand swabs. The district court found this result favorable to Gooch. But, as Gooch
acknowledges, the district court also must find the results "are of such materiality that a
reasonable probability exists that the new evidence would result in a different outcome at
a trial" before it must order a new trial or another form of relief required by K.S.A. 2019
Supp. 21-2512(f)(2). Here, the district court found the DNA evidence from the fingernail
clippings and hand swabs "was not of such materiality that a reasonable probability exists
that a different outcome would result at trial." The State does not dispute the district
court's finding that the DNA evidence was favorable toward Gooch. Thus, the issue on
appeal is whether the district court erred in finding there was not a reasonable probability
the DNA evidence would result in a different outcome at trial.


       In the context of postconviction DNA testing, reasonable probability is "'a
probability sufficient to undermine the confidence of the outcome.'" State v. Rodriguez,
302 Kan. 85, 93, 350 P.3d 1083 (2015). The district court must make "'a probabilistic
determination about the likely impact of the new evidence on reasonable, properly
instructed jurors.'" 302 Kan. at 94; Haddock III, 295 Kan. 738, Syl. ¶ 6. The standard to
grant a new trial under K.S.A. 2019 Supp. 21-2512(f)(2) is like the standard for granting
a new trial based upon newly discovered evidence, minus the time limit and requirement
that the evidence be newly discovered. Haddock v. State, 282 Kan. 475, 499, 146 P.3d
187 (2006) (Haddock II).


       Gooch claims the district court abused its discretion by making legal and factual
errors and by rendering a decision with which no reasonable person would agree.




                                             11
       A.     Errors of Law


       A district court abuses its discretion when guided by erroneous legal conclusions.
"[E]ven under the deferential abuse of discretion standard of review, an appellate court
has unlimited review of legal conclusions upon which a district court's discretionary
decision is based." State v. Ernesti, 291 Kan. 54, 65, 239 P.3d 40 (2010).


       Gooch argues the district court committed legal error in two ways: (1) The district
court did not consider the impact the newly discovered evidence would have on properly
instructed jurors but simply made a credibility determination prior to the material's
testing; and (2) the district court erroneously relied on dicta taken out of context from our
court's prior opinions to determine the evidence was overwhelming.


       First, Gooch alleges the district court did not consider the impact the new evidence
would have on properly instructed jurors. However, in its order, the district court stated,
"Just because the DNA of the victim was not located does not mean digital penetration
did not occur. The Defendant may have cleaned himself prior to being apprehended, or
simply the fact DNA results are not always obtained due to any number of factors." The
district court found its review of the record and its memory of the trial showed
overwhelming evidence against Gooch. It specifically noted the Dillon's videos and
Caudillo's testimony and considered the impact of the new DNA evidence. The record
supports this assertion. There is no evidence the district court committed a legal error by
not considering the impact of the new evidence on properly instructed jurors.


       Second, the district court twice stated our court referred to the evidence as
overwhelming. Gooch claims the district court took this from our court's discussion in
Gooch I of prosecutorial misconduct regarding whether Gooch's ejaculating on M.H.'s
face could constitute bodily harm. Gooch is correct that the only discussion of
overwhelming evidence on direct appeal is on prosecutorial misconduct. See 2014 WL


                                             12
5849227, at *13. But in Gooch III, the panel referred to the evidence in this case as
overwhelming when ordering the district court to order DNA testing. 2017 WL 5951700,
at *4. Additionally, Gooch overlooks the fact that after each time the district court
mentioned the Court of Appeals, it stated it also had found—and continued to find—the
evidence overwhelming based on the record and its ability to witness the trial live.
Moreover, Gooch's testimony was contradicted by M.H.'s testimony and other evidence
submitted at trial, while several witnesses corroborated M.H.'s testimony. The district
court's fleeting mentions of our court referring to the evidence as overwhelming is not an
error of law. Gooch tries to persuade us the district court took our court's statements out
of context, but Gooch fails to keep the district court's statement within its context. The
district court's order mainly focused on its determination that the evidence was
overwhelming. This determination was not an error of law.


       B.     Errors of Fact


       A district court abuses its discretion by making a factual error when substantial
competent evidence does not support its factual finding on which a legal conclusion or
exercise of discretion is based. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011),
cert. denied 565 U.S. 1221 (2012).


       Gooch raises several points to support his contention the district court made
factual errors. He first takes issue with the district court's description of his defense when
it summarily denied his request for postconviction DNA testing. Gooch III addressed that
decision, and it is not relevant to the argument here. Each of Gooch's points go toward his
ultimate point of the district court's determination that Gooch's testimony contradicted all
the evidence in this case.


       First, Gooch argues Magallanes' testimony supported his claim he went to Dillon's
to complete a drug deal. He relies on her testimony that Gooch approached her and asked


                                              13
if she was who he was looking for or if she needed anything, and Gooch testified the
reason he attempted to enter Magallanes' van was to steal an iPad or iPod she left on her
seat because he was frustrated that he was waiting at Dillon's to sell drugs. Magallanes
testified she did not have an iPad, iPod, or other electronic device on a seat in her van.
Although part of Magallanes' testimony is similar to Gooch's, their testimonies are still
contradictory.


       Next, Gooch asserts the forensic evidence corroborates his testimony that M.H.
agreed to oral sex to complete the drug deal. Gooch argues his sperm on the upholstery of
M.H.'s couch and M.H.'s neck and the absence of his sperm from the swabs of her vagina
corroborate his theory of consensual oral sex. But the forensic evidence Gooch mentions
does not prove either consent or lack thereof. It only proves Gooch ejaculated on M.H. in
her house. Moreover, M.H. testified the oral sex was not consensual, and three witnesses
testified M.H. told them the oral sex was nonconsensual shortly after it occurred. Gooch's
claim that the SANE nurse testified there was no injury to M.H.'s vagina ignores her
testimony that a lack of injury is common for digital penetration.


       Gooch also argues the district court erred by not considering Curtis Prebble's
proffered testimony. According to Gooch and to Prebble's unnotarized proffer of
evidence, Prebble would have testified that Gooch stopped by his house to retrieve his
belongings while a woman in a gold van waited for him. Before his trial, Gooch could not
find Prebble, and the district court denied a continuance to find him. Upon release from
the Department of Corrections, Prebble did not report for inpatient treatment, and a
warrant was issued for his arrest. The district court observed it was unlikely Prebble
would come to a courtroom when he was "on the run from the law." The panel affirmed
the district court's denial of the continuance because of the low probability Prebble would
appear at a later trial date given his absconding from parole and the arrest warrant. Gooch
I, 2014 WL 5849227, at *10. Gooch now claims the district court should have
considered this testimony because the impact of the new evidence must be considered in


                                             14
light of all the evidence, old and new, without regard to its admissibility. However, we
need not consider whether this additional testimony would tip the scales in Gooch's favor
because Gooch provides no evidence Prebble would actually testify.


       Finally, Gooch argues the district court committed an error of fact because the lack
of M.H.'s DNA on Gooch's hands and fingernails shows the district court's statement that
the evidence is contrary to Gooch’s testimony is "false." While the lack of M.H.'s DNA
on Gooch's hands and fingernail clippings could support his testimony that no digital
penetration occurred, it must be viewed in light of the entire record. See Haddock III, 295
Kan. at 767. The State's forensic expert testified he did not originally test the hand swabs
or fingernail clippings because there could be a low probability of producing a good
DNA profile. The forensic expert offered several reasons why there might not be DNA
found on a person's hands, such as shaking hands with others, sweating, or washing them.
Additionally, M.H.'s testimony contradicted Gooch's testimony, and three witnesses
testified M.H. told them shortly after the rape occurred that Gooch inserted his finger into
her vagina.


       Ultimately, the evidence in the record supports the district court's assertion that
Gooch's testimony contradicted all the evidence in this case. Gooch first attempted to
enter Magallanes' van but found it locked. He then waited for M.H. to reenter Dillon's
and crawled into the back of her unlocked van. M.H. testified Gooch forced her to drive
to a secluded spot so he could rape her. She also testified he inserted his finger into her
vagina. After Gooch forced M.H. to drive him back to Dillon's, M.H. told her neighbor, a
police officer, and the SANE nurse that Gooch raped her. None of the evidence admitted
at trial or the new DNA test results contradict her testimony, but Gooch's testimony was
contradicted at several turns. The district court's factual findings were supported by
evidence in the record.




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       C.      Unreasonable Decision


       Finally, Gooch reasons his arguments also support a finding that the district court
abused its discretion because no reasonable person would have determined the new DNA
evidence was insufficient to raise a reasonable probability that a new trial would yield
different results. For the reasons we have already outlined above, we disagree.


       The evidence against Gooch was overwhelming. M.H.'s testimony was supported
by multiple witnesses who testified that M.H. told them she was raped shortly after it
occurred. At trial, a forensic scientist testified for the State that testing of the vaginal
swabs from M.H. excluded Gooch as a contributor of DNA and admitted he did not test
Gooch's fingernail clippings because of the low probative value of testing fingernail
clippings and hands. Evidence that Gooch's fingernail clippings and hands tested negative
for M.H.'s DNA would have largely corroborated the forensic scientist's testimony and
would be unlikely to alter the jury's determination. The jury had the opportunity to
consider the lack of Gooch's DNA on the vaginal swabs and the State's decision not to
test Gooch's fingernail clippings. A reasonable person could agree the new DNA
evidence did not create a reasonable probability that a different result would have been
reached at trial.


       Affirmed.




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