                  This opinion is subject to revision before final
                       publication in the Pacific Reporter
                                  2016 UT 12


                                     IN THE

       SUPREME COURT OF THE STATE OF UTAH

                         JIMMY DEAN MEINHARD,
                               Petitioner,
                                        v.
                               STATE OF UTAH,
                                 Respondent.

                               No. 20140038
                           Filed March 23, 2016

                             On Direct Appeal

                        Third District, Salt Lake
                       The Honorable L.A. Dever
                            No. 130900232

                                  Attorneys:
        Troy L. Booher, Beth E. Kennedy, Jensie L. Anderson,
                    Salt Lake City, for petitioner
    Sean Reyes, Att‘y Gen., Andrew F. Peterson, Asst. Att‘y Gen.,
                   Salt Lake City, for respondent

 ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in
   which CHIEF JUSTICE DURRANT, JUSTICE DURHAM, and JUSTICE
                         HIMONAS joined.
     JUSTICE JOHN A. PEARCE became a member of the Court on
     December 17, 2015, after oral argument in this matter, and
                  accordingly did not participate.

   ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:
  ¶ 1 In this case and another heard at the same time, Gordon v.
State, 2016 UT 11, __ P.3d __, we consider important issues of first
impression under Part 3 of the Postconviction Remedies Act (PCRA).
UTAH CODE § 78B-9-300 to -304. In this case we consider an appeal
from the denial of a postconviction petition for DNA testing under
section 301(2)(f) of that statute. The district court denied the petition
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                        Opinion of the Court

under that provision on the basis of its determination that the
petitioner had not established that the evidence in question had the
―potential to produce new, noncumulative evidence that will
establish the person‘s factual innocence.‖ Id. § 78B-9-301(2)(f).
   ¶ 2 We affirm in part, reverse in part, and remand. We interpret
the operative terms of the statute—in particular, the ―new,
noncumulative evidence‖ clause and the requirement of a
―potential‖ for producing such evidence. Because we find the district
court‘s analysis only partially in line with the law as we understand
it, we reverse and remand to give the district court an opportunity to
resolve the issues identified below in light of our opinion.
                                  I
  ¶ 3 Jimmy Dean Meinhard was convicted of murder and
tampering with evidence in a jury trial held in 1999. Those
convictions were affirmed on appeal and upheld on multiple
postconviction challenges in state and federal court.
  ¶ 4 Meinhard now seeks to challenge his conviction through a
petition for postconviction DNA testing and, ultimately, a claim of
factual innocence. The petition for DNA testing was denied in the
district court. Meinhard challenges that decision on this appeal.
                                  A
  ¶ 5 According to the evidence at the underlying trial,1 Meinhard
and his victim (Ronald Peterson) were part of the same group of
friends. Their group included Meinhard‘s wife, Terry Meinhard;
Peterson‘s girlfriend, Dawn Downs; and Larry Taylor, who was
living with the Meinhards. These individuals‘ personal relationships
extended beyond mere friendships. Terry Meinhard was
romantically involved with Peterson—purportedly with Meinhard‘s
knowledge and consent. And before she was Peterson‘s girlfriend,
Downs had been involved romantically with Taylor.
  ¶ 6 In February 1997, Meinhard asked Taylor to drive him to
Downs‘s mobile home in Tooele, where Peterson had periodically
been staying. The point of the drive was to confront Peterson about
some missing tools that Meinhard thought Peterson had stolen—a
thought that earlier had prompted Meinhard to announce that ―he


1 This statement of facts ―is presented in a light favorable to the
prosecution, and consistent with the judgment of conviction.‖ Pinder
v. State, 2015 UT 56, ¶ 5 n.1, ___ P.3d ___.
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                        Opinion of the Court

was going to kill‖ Peterson. Trial Day Three Transcript at 28–29 (Jan.
28, 1999).
  ¶ 7 Meinhard could not drive his own pickup truck because he
had broken his left leg in a motorcycle accident a few months earlier
and his truck had a stiff clutch. The accident was a serious one. It
dislocated Meinhard‘s left shoulder, fractured his right arm, and
caused a serious leg injury. The injuries to the arm and shoulder
were serious but not permanent. By the time of the visit to Downs‘s
trailer, Meinhard had regained almost full use of his right arm, and
he had recovered sufficiently from the shoulder injury to terminate
physical therapy about three weeks later. But the leg injuries were
more permanent. Meinhard required reconstructive surgery with
extensive pins and rods. This prevented Meinhard‘s ankle from
bending, required him to walk with a cane, and made his injured leg
turn outward when he walked. When Meinhard and Taylor arrived
at Downs‘s trailer, Meinhard got out of the car and instructed Taylor
to drive out of sight, but to follow Meinhard and Peterson out of
town if he saw the two leaving in Peterson‘s car. Downs‘s neighbor
observed Meinhard and Peterson arguing outside, heard a car start,
and noticed later that Peterson‘s car was gone. As instructed, Taylor
followed Meinhard and Peterson as the two headed south out of
Tooele. When Peterson and Meinhard pulled to the side of the road,
Taylor passed them and pulled off further up the road.
  ¶ 8 The evidence at trial indicated that Meinhard stabbed
Peterson to death while Taylor waited. Peterson was stabbed first in
the stomach, causing him to fall over the steering wheel, and then in
the back, face, chest, and hand. He bled to death quickly.
  ¶ 9 Fearing that something was wrong with Peterson‘s car, Taylor
turned around and began driving back. He then saw Peterson‘s car
approaching and noticed that Meinhard was driving, though he
could not see Peterson. Taylor turned around again and followed the
car until Meinhard pulled off the road. Taylor then pulled the car he
was driving even with Peterson‘s car, rolled down the window, and
heard Meinhard say, ―I did him in. . . . I killed him.‖ Trial Day Two
Transcript at 155 (Jan. 27, 1999).
 ¶ 10 Meinhard instructed Taylor to follow him as he disposed of
the body. Meinhard stopped the car and Taylor waited further down
the road as Meinhard dragged Peterson‘s body up a dirt trail,
covered Peterson in his own jacket, stabbed him twice more in the
upper back, and left his body in the brush. Again following
Meinhard, Taylor drove to where Meinhard abandoned the car,
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                        MEINHARD v. STATE
                        Opinion of the Court

approximately three hundred yards from a side road near Highway
73. Meinhard got into Taylor‘s car covered in blood. He threw the
knife he had used out the window, along with some of Peterson‘s
personal belongings, during the drive back to Salt Lake City.
 ¶ 11 Upon returning home, Meinhard called his wife and asked
her to come home from work. When Ms. Meinhard arrived,
Meinhard confessed, ―I killed Ron,‖ and threatened her and Taylor
that if they told anyone about the murder, ―he would kill [them],
too.‖ Trial Day Three Transcript at 34 (Jan. 28, 1999). Meinhard was
excited and happy while threatening his wife and Taylor. Ms.
Meinhard related that ―[h]is eyes were real [sic] big and shiny.‘‖
Trial Day Three Transcript at 35 (Jan. 28, 1999). Although Meinhard
was normally very punctual to work, arriving every day at 4:15 p.m.,
he did not clock in until 10:00 p.m. on the night of the murder.
 ¶ 12 Three days after the murder, and during a heavy snowstorm,
Meinhard asked Taylor to accompany him back to Peterson‘s car.
The two went to the store at approximately 2:00 a.m., bought bleach
and toothache medicine, and proceeded to the abandoned car. They
found the car after a long search, and Meinhard told Taylor to wait
for him further up the road. Meinhard then proceeded to use bleach
in an attempt to destroy fingerprints and other evidence in and on
the car.
  ¶ 13 Police found Peterson‘s car later the same day, but another
day passed before police found the body. Blood evidence confirmed
that Peterson had been killed in the driver‘s seat of his car and
dragged across the console into the passenger seat before his body
was removed and dumped in the bushes. Police found large
footprints in the snow, footprints that clearly showed a ―‗unique
gait,‘ the left foot being turned outward as much as 45 degrees.‖
Trial Day Two Transcript at 81 (Jan. 27, 1999). Police also found an
empty box of toothache drops and the medication itself, although a
different brand from the one police later found in Meinhard‘s
possession. Police later analyzed Meinhard‘s shoes, which matched
the tread found in the snow around Peterson‘s car and were much
larger than Taylor‘s shoe size.
 ¶ 14 In light of defensive wounds found on Peterson‘s body, the
medical examiner opined that Peterson died after a violent struggle.
Police collected fibrous material that appeared to be dark hairs from
Peterson‘s hands and a dried substance that looked like blood under
the fingernails. The State sent the fibers found on Peterson‘s hands
and a fingerprint found on the car‘s door handle for testing, but the
print was too incomplete to identify anyone, and the supposed hairs
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                         Opinion of the Court

turned out to be vegetation fibers. Additionally, the State performed
DNA testing on the dried substance from Peterson‘s fingernail
clippings, but the results showed no human DNA.
 ¶ 15 Taylor confessed his role in the crime and testified against
Meinhard. Ms. Meinhard also testified against her husband, though
she initially wrote a letter to Meinhard stating that she knew him to
be innocent, implicating Taylor. Both witnesses told revised stories
(different from the version told in their initial questioning by
investigators), and both exchanged their testimony for dropped
charges. Two other people testified to having heard Meinhard
confess. A correctional officer declared that he overheard Meinhard
tell other prisoners that he was in the facility because he had killed
someone by stabbing him with a knife. A fellow inmate also stated
that Meinhard had initially denied the murder but eventually
confessed that he intended to blame the murder on his wife and
Taylor, detailing to the inmate how he killed Peterson, hid the body,
and destroyed the evidence days later. Meinhard claims the inmate
was untruthful and had exchanged testimony against other inmates
for leniency in four separate instances. Other inmates stated that
Meinhard had remained true to his story that he was innocent and
had been framed.
 ¶ 16 After a jury convicted Meinhard of murder and tampering
with evidence, he was sentenced to consecutive, indeterminate
prison terms of five years to life and one to fifteen years. The Utah
Court of Appeals affirmed the conviction in 2001, see State v.
Meinhard, 2001 UT App 304, 2001 WL 1243357, and this court denied
certiorari, see State v. Meinhard, 42 P.3d 951 (Utah 2002). Meinhard
then filed a petition for writ of habeas corpus in federal district court,
which was denied. The U.S. Court of Appeals for the Tenth Circuit
affirmed that decision. See Meinhard v. Friel, 118 Fed. App‘x, 392, 393,
2004 WL 2786643 (10th Cir. 2004). Meinhard also filed two other
petitions for postconviction relief, both of which were denied and
then affirmed on appeal. See State v. Meinhard, 2006 UT App 320, cert.
denied, 150 P.3d 544 (Utah 2006); Meinhard v. Turley, 2009 UT App
150, cert. denied, 218 P.3d 620 (Utah 2009).
                                    B
 ¶ 17 This case involves another petition for postconviction relief. In
this petition Meinhard requests DNA testing of the material under
Peterson‘s fingernails and the fingerprint on Peterson‘s car door
under Part 3 of the Postconviction Remedies Act. UTAH CODE §§ 78B-
9-300 to -304. Although the DNA testing performed in 1998 came up
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                          MEINHARD v. STATE
                         Opinion of the Court

inconclusive, failing to identify any human cells, Meinhard alleges
that advances in technology have made it possible to extract an
individual‘s DNA from mixed DNA samples, from ―very small
amounts of genetic material,‖ and from touch DNA, ―which is left
behind when skin cells touch an object.‖ Appellant‘s Brief at 6, 49.
  ¶ 18 Meinhard contends that such tests will show his factual
innocence. He alleges that the tests will reveal DNA from Taylor, or
from his wife or some other third party, but not from Meinhard. And
he asserts that such results will implicate someone else and show
that he was not in the car during the murder and did not return to
the scene afterwards.
 ¶ 19 The district court denied Meinhard‘s petition. It agreed with
the State that ―[n]o possible combination of DNA test results would
prove Mr. Meinhard innocent.‖ Memorandum Decision and Order
Denying Petition for Postconviction DNA Testing at 33 (hereafter
―Memorandum Decision and Order‖). In interpreting section 78B-9-
301(2)(f), the court held that ―the statute is specific in its requirement
that it is the DNA evidence—not the DNA evidence plus other new
evidence—that must prove the Petitioner‘s factual innocence.‖ Id. at
18. To qualify for DNA testing, the court concluded that Meinhard
was required to demonstrate by a preponderance of the evidence
that the new DNA evidence alone would potentially provide
exculpatory evidence. Id. Thus, even if another person‘s DNA were
found under Peterson‘s fingernails or on the car door, the court
reasoned that that would prove only that Peterson did not scratch
Meinhard and that Meinhard did not touch Peterson‘s car. This, in
the district court‘s view, would not prove Meinhard‘s innocence.
 ¶ 20 The court also found little evidence that Peterson fought his
killer. The trial record suggested that the defensive wounds on
Peterson‘s body ―were clearly the result of the killer‘s knife cutting
Peterson‘s flesh,‖ and the court quoted the medical examiner‘s
statement that the victim was ―trying to ward off an attack of a sharp
object.‖ Id. at 27–28. Thus, in the district court‘s view, ―[t]he
circumstances of the murder do not logically require the killer‘s
DNA to be found under Peterson‘s fingernails or on the door
handle.‖ Id. at 35.
 ¶ 21 The district court further reasoned that even if another
person‘s DNA is discovered, the DNA could have gotten under
Peterson‘s fingernails in a variety of different ways, ―such as during
a sporting event or sexual contact.‖ Id. at 38. And on that basis the
court concluded that the ―DNA would not clearly relate to the
murder, and that result would not exonerate [Meinhard].‖ Id.
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                        Opinion of the Court

 ¶ 22 For these reasons the court denied the petition, concluding
that ―the absence of [Meinhard]‘s DNA—with or without finding
someone else‘s DNA—is entirely consistent with his guilt.‖ Id. at 35.
―[W]hen viewed in its entirety,‖ the court held that ―the evidence
weaves together to form a compelling, coherent and internally
consistent picture of Petitioner‘s actions at both the murder and the
cleanup.‖ It concluded that ―[p]etitioner is the common denominator
that links each unique piece of evidence,‖ and thus that he ―has not
provided any theory explaining how the totality of that evidence is
in any way consistent with the guilt of another person, or why he
confessed to numerous people if he was not guilty.‖ Id. at 31. And
the court denied the petition on these grounds.
                                  II
 ¶ 23 The denial of Meinhard‘s petition was based on three essential
grounds. First, the district court implicitly endorsed the procedural
form of the State‘s request that the court deny the petition for DNA
testing—a written submission styled as a ―Response in Opposition to
Petition for Post-Conviction DNA Testing,‖ which asked the district
court to dismiss the petition on the merits by concluding that ―the
evidence that is the subject of the request for testing‖ lacks ―the
potential to produce new, noncumulative evidence that will establish
[Meinhard‘s] factual innocence.‖ Response in Opposition to Petition
for Postconviction DNA Testing at 1–3, 41–42; see UTAH CODE § 78B-
9-301(2)(f). Second, the district court rendered an interpretation of
the controlling terms of the operative provision of Part 3 of the
PCRA—specifically, the clause requiring a showing that the
evidence to be subject to testing have the ―potential to produce new,
noncumulative evidence‖ establishing the petitioner‘s factual
innocence. Memorandum Decision and Order at 18. And finally, the
court applied that provision to the facts of this case, concluding that
Meinhard had failed to carry his burden under this provision and
dismissing the petition on its merits on that basis.
 ¶ 24 Meinhard has raised no objection to the procedural form of
the State‘s response. So we decline to opine on the propriety of the
procedure followed below, or its conformance with our decision in
Gordon v. State, 2016 UT 11, ¶ 14, __ P.3d __. The remaining questions
presented were raised and properly preserved. In the district court
and on this appeal, Meinhard has objected to the district court‘s
interpretation of the terms of section 301(2)(f) of the PCRA. And he
has also challenged the court‘s application of that provision to the
disposition of this case. We review the district court‘s interpretation

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                          MEINHARD v. STATE
                         Opinion of the Court

of section 301(2)(f) de novo. See Irving Place Assocs. v. 628 Park Ave,
LLC, 2015 UT 91, ¶ 11, 362 P.3d 1241 (concluding that ―legal
questions of statutory interpretation‖ are considered ―de novo,
affording no deference to the district court‘s legal conclusions‖). And
because we find error in the district court‘s interpretation of the
statute, we yield no deference to its application of the law to the facts
of the case.
 ¶ 25 To sustain a request for postconviction DNA testing, a PCRA
petitioner must show that ―the evidence that is the subject of the
request for testing has the potential to produce new, noncumulative
evidence that will establish the person‘s factual innocence.‖ UTAH
CODE § 78B-9-301(2)(f). The district court denied Meinhard‘s request
for DNA testing because it concluded that ―no possible DNA test
result could prove that Petitioner did not murder Peterson.‖
Memorandum Decision and Order at 17. In so doing, the court
concluded as a threshold matter that ―it is the DNA evidence—not
the DNA evidence plus other new evidence—that must prove the
Petitioner‘s factual innocence.‖ Id. at 18.
 ¶ 26 In addition, the court implicitly interpreted the statutory term
―potential‖ in a series of conclusions assessing the likelihood that the
murderer left DNA under Peterson‘s fingernails or on the car door
handle in question. Specifically, the court suggested that Meinhard
bore the burden of establishing that ―the circumstances of the
murder . . . logically require the killer‘s DNA to be found under
Peterson‘s fingernails or on the door handle.‖2 Memorandum
Decision and Order at 35, 38 (emphasis added). The court also
viewed the record as undermining Meinhard‘s theory that there may
have been human hairs in Peterson‘s hands, as suggesting that
Peterson inflicted only ―defensive‖ wounds on the killer, and as
showing ―no logical connection between the fingerprint and the
killer.‖ Id. at 35. The court thus concluded that ―[t]he circumstances
of the crime scene dictate that no one’s DNA would be found in the

2  Alternatively, the court elsewhere framed the burden a bit
differently—suggesting that Meinhard‘s petition failed because in its
view the evidence indicated that Meinhard ―would not have left any
biological evidence . . . such as skin cells under Peterson‘s
fingernails,‖ or that ―[t]he circumstances of the crime scene dictate
that no one‘s DNA would be found in the car or on Peterson‘s
person.‖ Memorandum Decision and Order at 32. But this
formulation is equally problematic, for reasons explained below in
part II.B.
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                        Opinion of the Court

car or on Peterson‘s person, thus negating [Meinhard‘s] theory of
innocence premised on the lack of his DNA at the scene.‖ Id. at 32.
 ¶ 27 Ultimately, moreover, the court held that ―any test result
showing the presence of DNA belonging to someone other than
Petitioner could not prove the identity of the killer.‖ Id. at 38. It
based that decision on the determinations that ―[s]uch DNA could
have become lodged under Peterson‘s fingernails at any time before
the murder and in any number of ways, such as during a sporting
event or sexual contact,‖ and that ―such DNA would not clearly
relate to the murder, and that result would not exonerate Petitioner.‖
Id. at 38.
 ¶ 28 In so ruling, the district court made two threshold legal
conclusions and then applied the law to the facts of this case. The
court‘s legal conclusions went to the meaning of ―new,
noncumulative evidence‖ and (implicitly) to the ―potential‖ that it be
produced. And the court‘s ultimate determination was that
Meinhard had not carried his burden of satisfying the statutory
standard for ordering DNA testing. For reasons explained below, we
affirm the district court‘s construction of ―new, noncumulative
evidence,‖ but reverse as to its implicit interpretation of the
―potential‖ that it be produced. And because the district court‘s view
of ―potential‖ seemed to pervade its analysis, we reverse and
remand to allow it to reassess the question whether Meinhard
carried his burden under the statute as clarified in this opinion.
                                  A
 ¶ 29 The district court‘s first threshold legal conclusion concerned
the meaning of ―new, noncumulative evidence.‖ It held that the
referenced ―evidence‖ is limited to ―DNA evidence,‖ and does not
encompass ―other new evidence‖ that DNA evidence might lead to
indirectly. Memorandum Decision and Order at 18. Meinhard
challenges that conclusion on appeal. He claims that the PCRA
allows a petitioner to point to potential evidence beyond the DNA
test results themselves to support a postconviction petition for
testing. Thus, in Meinhard‘s view, a postconviction petitioner could
establish a right to DNA testing by indicating the possibility that the
requested DNA test results could ultimately lead to a confession. In
the context of this case, Meinhard claims that he has a right to DNA
testing even if test results alone would not exonerate him; it is
enough in his view if such test results may ―spark an investigation
that leads to exonerating evidence.‖ Appellant‘s Brief 49.


                                  9
                          MEINHARD v. STATE
                         Opinion of the Court

 ¶ 30 Under this line of thinking, it would not be essential for a
DNA testing petitioner to explain how the DNA test results themselves
would establish the petitioner‘s factual innocence (as in a rape case,
for example, where a semen sample not available at trial is tested
and reveals DNA test results that exclude the petitioner and
inculpate someone else3). Instead, in Meinhard‘s view, a successful
DNA petition could simply indicate how DNA test results would
eventually lead to other evidence that would exonerate the petitioner.
Under Meinhard‘s reading of the statute, for example, DNA testing
could be awarded if it could be established that DNA test results
could lead to the identification of a new suspect, and that additional
evidence (such as a confession by that suspect) would establish the
petitioner‘s factual innocence.
 ¶ 31 Meinhard bases this position on the plain meaning of ―new,
noncumulative evidence.‖ He contends that the term evidence sweeps
more broadly than DNA test results, encompassing leads on new
witnesses and new physical or documentary evidence.4 And he notes
that the statute speaks more specifically elsewhere of ―DNA test
results,‖ see UTAH CODE § 78B-9-303(2)(b)—an indication, in
Meinhard‘s view, that the legislature must have meant to encompass
more than just test results in the reference to ―new, noncumulative
evidence.‖5

3 See, e.g., United States v. Watson, 792 F.3d 1174, 1180, 1183 (9th Cir.
2015) (upholding a petition for DNA testing under the Innocence
Protection Act (18 U.S.C. § 3600), where previously untestable semen
in a rape victim‘s underwear could now be tested, and the DNA
testing ―could well prove [the petitioner‘s] actual innocence‖ given
the facts of the case).
4 See BLACK‘S LAW DICTIONARY 673 (10th      ed. 2014) (defining evidence
as ―[s]omething (including testimony,        documents, and tangible
objects) that tends to prove or disprove    the existence of an alleged
fact; anything presented to the senses      and offered to prove the
existence or nonexistence of a fact‖).
5 Meinhard also rests his position on the modifier ―new.‖ He claims
that all DNA test results are ―new,‖ and thus insists that the statute
must have reference to other types of evidence. We disagree. Section
301 expressly limits its provisions for DNA testing to cases in which
―the evidence was not previously subjected to DNA testing,‖ or
where ―new testing may resolve an issue not resolved by . . . prior
testing.‖ UTAH CODE § 78B-9-301(2)(d). The statute‘s reference to
―new, noncumulative evidence‖ is an apparent reinforcement of this
                                                        (continued . . .)
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                         Opinion of the Court

  ¶ 32 Meinhard has a point if we consider the term evidence in
isolation. But we do not read statutes in isolation. We read them
holistically. See Olsen v. Eagle Mountain City, 2011 UT 10, ¶ 9, 248

provision. We often presume that each term of a statute has
independent meaning. See Hi-Country Prop. Rights Grp. v. Emmer,
2013 UT 33, ¶ 24, 304 P.3d 851. But that is only a presumption. Id.
(referring to the ―presumption of independent meaning (and/or its
converse, the presumption against surplusage) (emphasis added));
Roberts v. Sea-Land Servs., Inc., 132 S. Ct. 1350, 1360 (2012) (asserting
that the presumption ―that ‗identical words used in different parts of
the same act are intended to have the same meaning . . . readily
yields whenever there is such variation in the connection in which
the words are used as reasonably to warrant the conclusion that they
were employed in different parts of the act with different intent‘‖
(citation omitted)); ANTONIN SCALIA & BRYAN A. GARNER, READING
LAW: THE INTERPRETATION OF LEGAL TEXTS 174, 176 (2012) (―If possible,
every word and every provision is to be given effect . . . [L]ike all
other canons, this one must be applied with judgment and
discretion, and with careful regard to context. It cannot always be
dispositive because (as with most canons) the underlying
proposition is not invariably true. Sometimes drafters do repeat
themselves and do include words that add nothing of substance.‖
(emphasis added) (alteration in original)); LINDA D. JELLUM,
MASTERING STATUTORY INTERPRETATION 104 (2008) (―Statutes are not
always carefully drafted. Legal drafters often include redundant
language on purpose to cover any unforeseen gaps or simply for no
good reason at all.‖ (emphasis added)); Ransom v. FIA Card Servs.,
N.A., 562 U.S. 61, 81 (2011) (Scalia, J., dissenting) (citing a British
opinion that notes that sometimes statutory language ―adds nothing
but emphasis,‖ and observing that ―[t]he canon against superfluity is
not a canon against verbosity‖; also noting that ―[w]hen a thought
could have been expressed more concisely, one does not always have
to cast about for some additional meaning to the word or phrase that
could have been dispensed with‖). And the presumption is rebutted
in circumstances where the terms of the statute suggest that the
legislature was using a redundancy as a point of emphasis. That
seems to be the case here. The adjective ―new‖ appears repeatedly in
Part 3 of the PCRA as a modifier for ―DNA test results.‖ See UTAH
CODE § 78B-9-303(2)(a)(i), (2)(c), & (2)(d). This, again, seems to
reinforce the express requirement of section 301(2)(d). And we think
the same adjective fulfills the same function in section 301(2)(f).

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                         MEINHARD v. STATE
                         Opinion of the Court

P.3d 465. And in the broader context of the surrounding provisions
of Part 3 of the PCRA, we interpret ―new, noncumulative evidence‖
as the district court did—as a reference to DNA test results, and not
to any and all evidence that might conceivably be uncovered as an
indirect result of DNA tests. That conclusion follows from two
essential premises.
 ¶ 33 First, section 301(2)(f) is supposed to be a meaningful hurdle,
and it would not be if Meinhard‘s view prevailed. DNA testing is
expensive; postconviction litigation over such testing is even more
so. Postconviction review, moreover, is supposed to be the
exception, not the rule. If we accepted Meinhard‘s reading of the
statute, the trigger for DNA testing in section 301(2)(f) would be
easily met in most any case. All it would take to get DNA testing
would be imaginative lawyering. And that would hardly be difficult.
Most any lawyer could conjure a chain of events in which DNA
testing could generate a new lead that could conceivably give rise to
a confession or a new piece of (non-DNA) evidence. That would
effectively nullify section 301(2)(f). And that effect calls Meinhard‘s
view into serious question. See JOHN F. MANNING & MATTHEW C.
STEPHENSON, LEGISLATION AND REGULATION 229 (2d ed. 2013) (―[A]n
interpretation that renders certain terms duplicative may not be
much of a problem, but an interpretation that renders a substantive
provision of a statute entirely superfluous is something courts should
strain to avoid.‖).6
  ¶ 34 Second, and more importantly, the balance of Part 3 clarifies
the meaning of ―new, noncumulative evidence.‖ The full statutory
phrase is ―new, noncumulative evidence that will establish the person’s
factual innocence.‖ UTAH CODE § 78B-9-301(2)(f) (emphasis added).
And other provisions of the code make clear that only DNA test
results can establish factual innocence under Part 3 of the PCRA.
Section 303(2)(b) says that expressly. It provides that the court may
vacate the conviction only if it ―determines that the DNA test result
demonstrates by clear and convincing evidence that the person is

6 See also VCS, Inc., v. Utah Cmty. Bank, 2012 UT 89, ¶ 18, 293 P.3d 290
(rejecting a statutory interpretation that would ―run[] afoul of the
settled canon of preserving independent meaning for all statutory
provisions‖ by ―effectively nullify[ing] the 180-day requirement set
forth in the general rule‖ (emphasis added)); JAMES KENT,
COMMENTARIES ON AMERICAN LAW *467 n.(y1) (Charles M. Barnes
ed., 13th ed. 1884) (observing that repeals by implication are ―very
much disfavored‖).
                          Cite as: 2016 UT 12
                         Opinion of the Court

factually innocent.‖7 UTAH CODE § 78B-9-303(2)(b) (emphasis
added).8 Thus, when read in the context of the overall statute, the
section 301(2)(f) reference to ―new, noncumulative evidence that will
establish the person‘s factual innocence‖ must be a reference to DNA
test results.9

7 Meinhard suggests that the district court‘s construction of the
statute renders section 301(2)(f) redundant—that it conflates the
301(2)(f) hurdle with the ultimate determination on the merits under
section 303(2)(b). But that argument misses two important
procedural distinctions between these two provisions. The first goes
to the operative standard of proof. The standard under the former
section is a preponderance of the evidence; testing is allowed if it is
shown by a preponderance that DNA test results will establish the
petitioner‘s factual innocence. The standard under the latter section
is quite different. It allows vacatur of the conviction upon a showing
that DNA test results show factual innocence by clear and
convincing evidence. The second distinction goes to issues addressed
below. At the 301(2)(f) stage we are asking only about a potential for
DNA test results. The proceeding gets to section 303(2)(b) only if
such results are in fact generated and are favorable to the petitioner.
8 See also UTAH CODE § 78B-9-303(1)(a) (a petitioner who is allowed to
pursue DNA testing may seek to vacate his conviction under Part 3
only if ―the result of postconviction DNA testing is favorable‖ to the
petitioner (emphasis added)); id. § 78B-9-303(1)(b) (at the hearing on
whether the conviction should be vacated, the State may ―attempt to
demonstrate through evidence and argument that, despite the DNA
test results, the state possesses sufficient evidence of the person‘s
guilt so that the person is unable to demonstrate by clear and
convincing evidence that the person is factually innocent‖ (emphasis
added)).
9 Admittedly the legislature could have spoken more clearly. If
section 301(2)(f) referred to ―DNA test results‖ instead of ―new,
noncumulative evidence,‖ we could endorse the district court‘s
construction of the statute more readily. But that is not the standard.
―[T]he legislature‘s failure to speak more clearly tells us little or
nothing about its intent in using terms that are less clear.‖ Irving
Place Assocs. v. 628 Park Ave., LLC, 2015 UT 91, ¶ 16, 362 P.3d 1241.
And for reasons noted above we conclude that section 301(2)(f)‘s
reference to ―new, noncumulative evidence that will establish the
person‘s factual innocence‖ is a reference to the only kind of ―new,
                                                         (continued . . .)
                                  13
                         MEINHARD v. STATE
                         Opinion of the Court

  ¶ 35 That said, ―new, noncumulative evidence‖ cannot mean just
the ―DNA evidence‖ subjected to DNA testing by itself. Such
evidence would be meaningless without test results. Evidence of
―DNA test results,‖ moreover, is not limited to a mere graphical or
numeric representation of the DNA found on the evidence in
question.10 Logically and legally, the parties must have the
opportunity to present evidence necessary to interpret or
contextualize the DNA profile generated by DNA testing. A
graphical or numeric DNA profile alone would be meaningless. The
court would be in no position to analyze whether that profile
establishes the petitioner‘s factual innocence without some basis for
comparison to an existing DNA database or to evidence of DNA
from the petitioner or from other suspects, or without some other
kind of evidentiary analysis. And the statute itself appears to
provide for such analysis.11 So although we agree with the district


noncumulative evidence‖ that can establish factual innocence under
Part 3 of the PCRA—DNA test results.
10 In both technical and legal literature, ―DNA test results‖ refers, at
a minimum, to a comparison of the DNA profile derived from the
evidence being tested to the petitioner‘s DNA profile. When the
question presented also implicates a third-party, ―DNA test results‖
also encompasses a comparison to the DNA profile of other suspects,
or to a larger database of possible suspects. See, e.g., Kathryn M.
Turman, U.S. DEP‘T OF JUSTICE, Understanding DNA Evidence: A Guide
for Victim Service Providers, OFFICE OF VICTIMS FOR CRIME BULLETIN,
April 2001, at 4, available at https://perma.cc/L5BT-UKZ2 (the actual
graphical or numerical output of the testing is called a DNA profile,
and a test result is the comparison of that profile to a profile created
from testing a different sample of DNA); Karen Christian, “And the
DNA Shall Set You Free”: Issues Surrounding Postconviction DNA
Evidence and the Pursuit of Innocence, 62 OHIO ST. L.J. 1195, 1222 n.118
(2001) (―The results of a DNA test may be negative, meaning the
crime scene DNA and the suspect‘s DNA do not match . . . .‖); see
also generally U.S. DEP‘T OF JUSTICE, NATIONAL INSTITUTE OF JUSTICE,
Postconviction DNA Testing: Recommendations for Handling Requests,
Sept. 1999, available at https://perma.cc/MAP4-YN4Z.
11See, e.g., UTAH CODE § 78B-9-302(1) (providing that a petitioner
seeking DNA testing consents to ―provide samples of body fluids for
use in the DNA testing,‖ suggesting that DNA test analysis under
the statute will at least involve comparison of the petitioner‘s DNA
with the DNA taken from the evidence).
                         Cite as: 2016 UT 12
                        Opinion of the Court

court that the ―new, noncumulative evidence‖ referred to in section
301(2)(f) is focused on DNA test results, and not on any other
evidence that such results might indirectly lead to, we emphasize
that the statute does not close the door on introduction of evidence
necessary to interpret and contextualize the significance of those test
results in a section 303 hearing to vacate the conviction.
  ¶ 36 That seems apparent in the terms of section 303(1)(b) of the
statute, which sets the parameters of the hearing on factual
innocence in a proceeding under Part 3, and section 303(2)(b), which
sets the standard for proving factual innocence. Section 303(1)(b)
provides that the State may ―attempt to demonstrate through
evidence and argument that, despite the DNA test results, the state
possesses sufficient evidence of the person‘s guilt so that the person
is unable to demonstrate by clear and convincing evidence that the
person is factually innocent.‖ UTAH CODE § 78B-9-303(1)(b). And
section 303(2)(b), as noted above, provides for vacatur of the
conviction only if the court ―determines that the DNA test result
demonstrates by clear and convincing evidence that the person is
factually innocent.‖ Id. § 78B-9-303(2)(b). The court cannot
meaningfully determine whether the DNA test results prove factual
innocence without considering evidence necessary to interpret and
contextualize the DNA profile that is generated by DNA testing.
Thus, evidence comparing the DNA profile to an existing database
or to DNA profiles of other suspects may be considered by the court
in assessing factual innocence under Part 3.
  ¶ 37 But that does not mean that any and all speculative evidence
is fair game on the threshold question presented under section
301(2)(f). There is a difference between evidence necessary to
interpret and contextualize a DNA test result and evidence that such
a result might indirectly produce. The mere possibility of a
confession from another suspect, for example, or of a new lead as to
a new witness or the possibility of new physical evidence, would not
come into play under the statute. Part 3 of the PCRA deals with
establishing factual innocence by the presentation of DNA test
results. And, like the district court, we do not read section 301(2)(f)
to open the door to the consideration of any and all evidence that
might indirectly be produced by such test results.12

12 In so concluding, we do not foreclose the propriety of such
evidence altogether. Our analysis here concerns only Part 3 of the
PCRA, which deals with proof of factual innocence through DNA
                                                    (continued . . .)
                                15
                         MEINHARD v. STATE
                         Opinion of the Court

 ¶ 38 Meinhard counters that the reading we adopt will create a
catch-22 for petitioners seeking postconviction relief under Part 4 of
the PCRA. He points to Utah Code section 78B-9-402(2)(a)(i), which
prescribes standards for a petitioner to bring forth any ―credible,‖
―newly discovered material evidence‖ that ―establishes that the
petitioner is factually innocent.‖ ―If some or all of the evidence
alleged to be exonerating is biological evidence subject to DNA
testing,‖ the provision allows the petitioner to seek DNA testing
pursuant to Section 78B-9-301. Id. § 78B-9-402(6).
 ¶ 39 Meinhard claims that our reading either makes Part 4
redundant in light of Part 3, or makes it impossible for a petitioner to
get DNA testing when he is directed to seek it under subsection
402(6). If the DNA test results alone are sufficient to establish the
petitioner‘s factual innocence, Meinhard notes that there is no need
for a petitioner to bring forth additional non-DNA evidence, as
contemplated under Part 4. And if DNA test results are insufficient
on their own to establish innocence, but may do so when combined
with other newly discovered evidence, Meinhard says that the
petitioner will never get DNA testing under Part 3 if DNA test
results must alone establish innocence to trigger the right to testing
in the first place.
 ¶ 40 This would all be troubling if it were correct. But we reject the
premises of Meinhard‘s argument. Instead we accept the State‘s
―final puzzle piece‖ view of the interaction between Parts 3 and 4: A
petitioner who files a factual innocence petition under Part 4 may
subsequently seek DNA testing, when needed, under Part 3. Thus,
the requested DNA test results may be the missing piece in the
innocence puzzle theorized by the petitioner, and can be said to have
the potential to establish the petitioner‘s innocence after taking into
account the other newly discovered evidence from the Part 4
petition. We reject Meinhard‘s argument on that basis. We read Parts
3 and 4 of the statute as parts of a harmonious whole. See Strohm v.
ClearOne Commc’ns, Inc., 2013 UT 21, ¶ 21, 308 P.3d 424 (―We
interpret individual sections of the code ‗in harmony with other


testing. And the PCRA also encompasses Part 4, which provides
mechanisms for proof of factual innocence more generally. See UTAH
CODE § 78B-9-401 to -405. Thus, a petitioner who discovers a new
witness or new physical evidence, or secures a new confession, could
advance such evidence in a proceeding under Part 4. See id. § 78b-9-
402(2)(a)(i) (enabling a petitioner to introduce ―newly discovered
material evidence‖ in seeking to be declared ―factually innocent‖).
                          Cite as: 2016 UT 12
                         Opinion of the Court

provisions in the same statute and with other statutes under the
same and related chapters.‘‖ (citation omitted)).13
                                   B
 ¶ 41 The district court‘s second legal conclusion was more implicit.
In assessing the viability of Meinhard‘s request for DNA testing, the
district court gave an implicit construction of the ―potential‖ for a
piece of evidence to ―produce new, noncumulative evidence‖
establishing factual innocence. It did so in a series of conclusions
addressed to the likelihood that the murderer may have left DNA
under Peterson‘s fingernails or in a fingerprint on the car door
handle. The court‘s conclusions on this score were threefold: (a) its
determination, in two different portions of its opinion, that ―the
circumstances of the murder do not logically require the killer‘s DNA
to be found under Peterson‘s fingernails or on the door handle,‖
Memorandum Decision and Order at 35, 38; (b) a series of grounds
for the court‘s determination that the killer likely did not, or would
not have, left DNA; and (c) in support of the foregoing, the
conclusions that the record did not show ―offensive wounds‖ by
Peterson, and that fibers found on Peterson‘s hands were not human
hairs.
 ¶ 42 The district court‘s opinion never rendered an express
construction of the statutory term ―potential.‖ But its analysis was
premised on an implicit view of this term.14 And our review must
begin with our understanding of this provision.


13 See also THOMAS M. COOLEY, A TREATISE ON THE CONSTITUTIONAL
LIMITATIONS WHICH REST UPON THE LEGISLATIVE POWER OF THE STATES
OF THE AMERICAN UNION 58 (1868) (―[O]ne part is not to be allowed
to defeat another, if by any reasonable construction the two can be
made to stand together.‖).
14 In quoting and interpreting section 301(2)(f), the district court
concluded that ―the statute is specific in its requirement that it is the
DNA evidence . . . that must prove the Petitioner‘s factual innocence.‖
Memorandum Decision and Order at 18 (emphasis added). At the
petition stage, however, there is no requirement that the DNA test
results conclusively prove factual innocence; instead the question is
only whether there is a ―potential‖ of such evidence, and whether
any such evidence ―will‖ establish factual innocence. UTAH CODE
§ 78B-9-301(2)(f). We analyze that language below.

                                   17
                          MEINHARD v. STATE
                         Opinion of the Court

 ¶ 43 Evidence has the potential to produce DNA test results if it has
a possibility of doing so. See WEBSTER‘S NEW INT. 1932 (2d ed. 1937)
(defining potential as ―[t]hat which is possible‖); AMERICAN HERITAGE
1379 (5th ed. 2011) (―The possibility that something might happen or
result from given conditions . . . .‖).15 A ―potential,‖ then, is
something less than a likelihood—and well short of a certainty. The
context of the statute confirms that principle. It does so by using two
different terms on the spectrum of likelihood—―potential‖ and
―will.‖ Evidence must have the ―potential to produce‖ new DNA test
results, and it must be shown that such test results ―will establish . . .
factual innocence.‖ UTAH CODE § 78B-9-301(2)(f). Thus, in context
―potential‖ is something different from an assessment of what likely
―will‖ come to pass. It is a possibility.16
 ¶ 44 The district court‘s implicit construction of section 301(2)(f) is
incompatible with this standard. That is most apparent in the court‘s
determination that the circumstances of Peterson‘s murder ―do not
logically require‖ the killer‘s DNA to be found. That is the language
of certainty, and a potential is much less than that. But other
elements of the court‘s analysis also seem inconsistent with the
applicable sense of ―potential‖ set forth above. To the extent the
court was assessing whether it was more likely than not that the
killer‘s DNA would be found, it was also asking the wrong question.
 ¶ 45 Finally, the court‘s analysis of the absence of evidence of
―offensive wounds‖ by Peterson, and of the notion that fibers found
in Peterson‘s hands were not human hairs, is also problematic.
Certainly it‘s true that offensive wounds would be more likely
consistent with the prediction that Peterson‘s fingernails could
contain the DNA of his killer. But we do not think it can be said that
the absence of such wounds eliminates any ―potential‖ for such
DNA. It is undisputed that Peterson had a violent struggle with his
assailant. Without more, we cannot conclude from the lack of
offensive wounds that there is no meaningful possibility that the

15 The other senses of the noun potential attested in the dictionary are
either technical or irrelevant here. See Gordon v. State, 2016 UT 11,
¶ 29 n.9, __ P.3d __ (―Dictionaries . . . reveal that words have a
‗limited range of meaning‘ and help exclude an ‗interpretation that
goes beyond that range.‘‖ (citation omitted)).
16That is not to say that any speculative possibility would count as a
―potential.‖ When we speak of a potential we don‘t mean certainty or
even likelihood; but we also don‘t mean rank, wild speculation. The
possibility must be a meaningful one.
                         Cite as: 2016 UT 12
                        Opinion of the Court

assailant‘s DNA ended up under Peterson‘s fingernails. And the fact
that the fibers in Peterson‘s hands turned out to be vegetation rather
than human hair does not mean a violent struggle (or even just
physical contact) between Peterson and his killer did not occur; it
just means that none of the killer‘s hair ended up in Peterson‘s grasp.
The absence of evidence is not the evidence of absence, and there is
enough other plausible evidence to sustain a theory that the killer‘s
DNA could have ended up under Peterson‘s fingernails.
  ¶ 46 For these reasons we find error in the district court‘s implicit
construction of the statutory reference to a ―potential‖ for the
production of new DNA test results. We must therefore proceed to
the question whether such error was prejudicial. This is a close call.
Despite the court‘s (erroneous) determinations regarding the
potential of the killer‘s DNA being found under Peterson‘s
fingernails or on the door handle, the court ultimately rendered a
conclusion rejecting Meinhard‘s case even assuming the possibility of
finding some third party‘s DNA. Thus, the court concluded that
―[s]ignificant physical and circumstantial evidence conclusively
linked the Petitioner to the murder and the destruction of evidence,‖
and that ―[e]ven setting aside the significant eye-witness testimony of
[Meinhard‘s wife], Taylor, and others to whom the Petitioner
confessed[,] . . . evidence independently tied Petitioner to the murder
and the crime scene.‖ Memorandum Decision and Order at 28.18 And
this led the district court to conclude that ―[a]lthough arguably no
one piece of circumstantial evidence proves [Meinhard] guilty in

18That evidence included a single set of large footprints at Peterson‘s
car with the left foot demonstrating an unusual gait, consistent with
Meinhard‘s large feet (and not Taylor‘s smaller size), the tread of his
shoes, and the hampered walking of Meinhard after his earlier crash;
toothache drops found at the scene and on Meinhard; eyewitness
testimony that Meinhard was arguing with Peterson earlier in the
afternoon on the day of the murder; evidence that whoever
destroyed evidence at Peterson‘s car was tired or winded by the
physical exertion, and Meinhard was known to suffer from severe
asthma; a 10:00 p.m. clock-in time for work the day of the murder
when Meinhard had consistently checked in at 4:15 pm; complaints
of pain in Meinhard‘s left shoulder and biceps after the murder; and
a correctional officer overhearing Meinhard inform other inmates
that he was in prison for having ―killed somebody‖ by ―stab[ing]
him with a knife.‖ Memorandum Decision and Order at 29-31.

                                  19
                          MEINHARD v. STATE
                         Opinion of the Court

isolation, when viewed in its entirety the evidence weaves together
to form a compelling, coherent and internally consistent picture of
[Meinhard‘s] actions at both the murder and cleanup.‖ Id. at 31.
 ¶ 47 On these grounds, the district court viewed Meinhard as ―the
common denominator that links each unique piece of evidence.‖ Id.
And the court further found that Meinhard had ―not provided any
theory explaining how the totality of [the] evidence is in any way
consistent with the guilt of another person, or why [Meinhard]
confessed to numerous people if he was not guilty.‖ Id.
 ¶ 48 For these reasons it seems possible that the district court
would have reached the same conclusions on this record even absent
the threshold error in (implicitly) interpreting the statute.19 Yet we
reverse and remand to allow the court to resolve the case anew
under the clarifications rendered in this opinion. We do so because
the above-noted legal deficiencies seem to pervade the district
court‘s analysis. This is not a case of an error in a minor side point of
discussion in the district court opinion. The court‘s assessment of the
potential of the killer‘s DNA being found runs throughout the
court‘s analysis. Thus, although we do not foreclose the possibility
that the district court may reach the same conclusion anew on
remand, we deem it appropriate to allow the court to reconsider the
important issues in this case in light of the clarification we offer in
this opinion.
                                   III
 ¶ 49 This case and its companion, Gordon v. State, 2016 UT 11, __
P.3d __, present this court with its first opportunity to interpret the
terms of the DNA testing provisions of the PCRA. In this case we
affirm the district court‘s construction of the statute in part and
reverse in part. We agree with the court‘s understanding of ―new,
noncumulative evidence‖20 but find error in its construction of the
―potential‖ for such evidence as that term is used in section 301(2)(f).


19 See Memorandum Decision and Order at 33 (―No possible
combination of DNA test results would prove Mr. Meinhard
innocent.‖).
20During oral argument both parties discussed the possibility of a
non-indigent defendant obtaining DNA testing on her own without
the State paying testing expenses. Because this issue was not
properly raised and briefed, we decline to reach it. We therefore
neither foreclose nor endorse the possibility.
                        Cite as: 2016 UT 12
                        Opinion of the Court

And we remand to allow the court to reevaluate its disposition of the
petition for DNA testing in light of this opinion.




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