                                                                                                      FIL F- D
                                                                                                MU T OF
                                                                                                          ZP1pEAL: S

                                                                                            2019 FEB 1 IIi Sc 37

                                                                                            C   f

                                                                                                    DE    T




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                              DIVISION II


STATE OF WASHINGTON,                                                      No. 42659 -5 -II


                                   Respondent,                      UNPUBLISHED OPINION


         V.



DESHAN AKEEM WATSON,


                                   0

         BJORGEN, J. —   Deshan Akeem Watson appeals the trial court' s denial of his motions for


post- conviction deoxyribonucleic acid (DNA) testing. He asserts that the trial court erred in

denying his motions, because they satisfied the requirements of the post- conviction DNA testing

statute, RCW _
             1073.170_ Because_any_
                                  error in the trial court' s consideration of Watson' s post _

conviction DNA testing motions is harmless, we affirm.

                                                  FACTS


         Andrew Blaine lived in a house in Clark County, Washington with his brother, Joshua

Blaine, Ann Westelin, and Matthew Halligan. Halligan sold marijuana out of the home. Watson

denied   knowing   Halligan, but   admitted   that he may   have   purchased marijuana at    his house.
No. 42659 -5 -II



        On the morning   of   February    14, 2003, Andrews and Halligan were at home when Andrew


woke up and heard voices outside his closed bedroom door. Andrew opened his door and was

 rushed" by a man in a black mask and black clothing. Report of Proceedings ( RP) at 149. The

man struck Andrew in the face with an object that appeared to be a firearm and pushed him onto

the floor. Andrew saw a different man, wearing a black ski mask and with corn rows in his hair,

wrestling with Halligan in Halligan' s bedroom. When the man who attacked Andrew walked

over to Halligan' s room, Andrew fled the house. Once outside, Andrew decided to return to the


house to help Halligan and found him on his bed with a puncture wound in his chest. Halligan

later died at the hospital. Officers found digital scales and sandwich bags containing green
                                                 2
vegetable matter   in Halligan'   s   bedroom.       Officers also found a stocking cap, a neoprene face

mask and a handgun magazine in the house. Watson acknowledged that he used to own a cap

and face mask like those found in Halligan' s house, but stated that he had not seen the items

since November 2002. Watson further acknowledged that it was possible that the cap and face

mask found by police could be the same ones that he had owned. Neither Andrew, Joshua nor

Westelinrecognized the mask. -- - - --




s We refer to Andrew Blaine and Joshua Blaine by their first names. We intend no disrespect.
2
 They additionally recovered a roll of duct tape. Fingerprints on the duct tape were traced to
Tricia Jolene Stuckey, who did not testify. Based on stipulated facts presented to the jury,
Stuckey was a clerk at a local 24 -hour food market and regularly smoked marijuana. She did not
recall selling the roll of duct tape and she did not recognize Halligan' s name, although she " may
have   purchased marijuana    from [ him]   without      knowing   who   he   was."   Report of Proceedings at
451.




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No. 42659 -5 -II



          Washington State Patrol forensic scientist Will Dean tested the neoprene mask and wool


cap using short tandem repeat ( STR) testing. Dean found more than one person' s DNA on each

tested   object, called a " mixed sample."       RP at 471 -72. With respect to the mask, Dean


concluded that Watson' s DNA profile was a possible contributor to the mixed DNA sample.


Dean set the statistical comparison at 1 in 20 million, meaning approximately 14 people in the

United States would share that DNA profile. Dean classified Watson' s DNA profile as one of


two "   major contributors"   of   DNA   evidence on    the   mask.   RP   at   471 - 72, 525. Vanora Kean, a


defense DNA expert, acknowledged that Watson' s DNA profile was a contributor to the mixed


DNA sample found on the mask, but set a statistical comparison of 1 in 2 million.


          Brandon Lockwood testified that a few days before February 14, he, Watson, and Ray

Suggs boarded a bus together and that, while riding the bus, Suggs told Watson that he had .

purchased marijuana from Halligan and knew where Halligan stored his marijuana. Lockwood


also stated that Watson and Suggs discussed how they " could go into [ Halligan' s] house and ...

hold him    at gunpoint and scare   him    and   just take his   weed."    RP at 320. Lockwood testified that


Watsori told Suggs that he could obtain arevolver and ski masks.- Lockwood -
                                                                           further testified - - -- --


that both Suggs and Watson had corn row style hair at the time he rode the bus with them. A day
                                                                                                   3
or   two later, Lockwood learned     of   Halligan' s   murder and spoke        to the   police.




          On February 3, 2005, the State charged Watson by amended information with first degree

murder and second degree assault. The State also alleged that Watson was armed with a firearm



3 Lockwood initially testified that he recalled officers " coming and talking to" him about the bus
ride. RP at 326, 412. On cross -examination, he testified that he initiated a call to the police after
speaking with his mother and sister.




                                                          3
No. 42659 -5 -II



during the commission of both offenses. A jury returned verdicts finding Watson guilty of first

degree murder and second degree assault and returned special verdicts finding that he was armed

with a firearm during the commission of both offenses.

          On May 12, 2011, Watson filed a motion pursuant to RCW 10. 73. 170 for post- conviction

DNA' testing of the face mask found at the crime scene. Watson argued that a more accurate

form of DNA testing was available and that retesting the mixed DNA sample from the mask

could eliminate him as a potential match. The trial court denied Watson' s motion in a letter


ruling on May 18, 2011, on the ground that " DNA testing was completed, and the defense had

their   own   DNA    expert at       trial."   Supp. CP at 39. After Watson filed an appeal, we advised him

that the trial   court' s   letter   denying his     request   for   post- conviction   DNA testing "[ was]   not a



decision of the trial court appealable as a matter of right" and that he needed a final order from


the trial court denying his motion in order to proceed with his appeal. Supp. CP at 41.

          On July 5, 2011, the trial court denied Watson' s request to enter a final order, and we

subsequently dismissed his appeal. On September 12, 2011, Watson filed a second request for

post -conviction-DNA testingwith the trial court forthe same reasons-set out-in-his- original - -- - -- - - - - - -

motion.     The trial   court responded          that "[   n] o action" would be taken on the motion. Supp. CP at

50.     On October 6, 2011, Watson again appealed the trial court' s response to his motion, and we


accepted his appeal. Watson timely appeals the trial court' s denial of his motion for post-

conviction DNA testing.

                                                            ANALYSIS


           Watson contends that the trial court abused its discretion by denying his motions for post-

conviction DNA testing. Because Watson' s motions failed to satisfy the substantive



                                                                  0
No. 42659 -5 -II



requirements of the post- conviction DNA statute, RCW 10. 73. 170, any error in the trial court' s

consideration of his motions was harmless and, thus, we affirm the trial court' s ruling.

         We review a trial court' s ruling on a motion for post -conviction DNA testing for an abuse

of   discretion. State    v.   Thompson, 173 Wn.2d 865, 870, 271 P. 3d 204 ( 2012). A trial court


abuses its discretion when it bases its decision on untenable or unreasonable grounds. State v.

Magers, 164 Wn.2d 174, 181, 189 P. 3d 126 ( 2008).


         RCW 10. 73. 170 allows a convicted person serving a prison sentence to request post-

conviction DNA testing, stating in relevant part:

           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:
                   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.


          To be entitled to post- conviction DNA testing under RCW 10. 73. 170, the " person

requesting testing       must   satisfy both   procedural and substantive requirements."   State v. Riofta,


166 Wn.2d 358, 364, 209 P. 3d 467 ( 2009).             Specifically,




                                                           5
No. 42659 -5 -II



                     The motion must state the basis for the request, explain the relevance of
          the   DNA        evidence         sought,   and  comply with applicable court rules.      RCW
           10. 73. 170( 2)( a)     -(c).    If the petitioner satisfies these procedural requirements, the
           court must grant the motion if it concludes the petitioner has shown the
            likelihood that the DNA evidence would demonstrate innocence on a more
          probable      than      not   basis."   RCW 10. 73. 170( 3).


Riofta, 166 Wn.2d at 364.


           Because it is determinative of the issues before us, we address only the substantive

requirement of RCW 10. 73. 170. In contrast with the " lenient.' procedural requirements of RCW

10. 73. 170( 2), the      substantive requirement of          RCW 10. 73. 170( 3) is "   onerous."    Riofta, 166


Wn.2d at 367.


                     In determining whether a convicted person " has shown the likelihood that
           the DNA evidence would demonstrate innocence on a more probable than not
           basis,"     a court must look to whether, viewed in light of all of the evidence
           presented at trial or newly discovered, favorable DNA test results would raise the
           likelihood that the             person   is innocent   on a more probable     than   not   basis.   The

           statute requires a trial court to grant a motion for postconviction testing when
           exculpatory        results       would,    in   combination   with   the   other   evidence,   raise   a


           reasonable probability the petitioner was not the perpetrator.

Riofta, 166 Wn.2d at 367 -68.


           Here.-the trial -
                           court denied Watson's first motion for post- conviction DNAtesting-in-a- -

letter ruling that        stated, "     DNA testing was completed, and the defense had their own DNA expert

at   trial."   Supp.   CP    at   39. In response to Watson' s second motion, the trial court merely


responded       that "[   n] o action" would be taken. Supp. CP at 50. The trial court' s letter ruling and

its response to Watson' s second motion are unclear as to whether it had properly evaluated the

likelihood that a favorable DNA test would demonstrate Watson' s innocence by a preponderance

of the evidence. However, even assuming without deciding that the trial court' s stated reasons

for denying Watson' s motion were inadequate under the statute, we hold that any error would be



                                                                  2
No. 42659 -5 -II



harmless. Nonconstitutional         error requires reversal     only if, "
                                                                         within   reasonable probabilities,"      the,



outcome of the proceeding " would have been materially affected had the error not occurred."

State   v.   Crenshaw, 98 Wn.2d 789, 800, 659 P. 2d 488 ( 1983) (         citing State v. Tharp, 96 Wn.2d

591, 637 P. 2d 961 ( 1981)).       Here, Watson cannot demonstrate that the outcome of his proceeding
                                                                                                           STR4

would    have differed had the trial     court made a proper      inquiry because,   even   if a   new   Y -      test


eliminated Watson as a possible contributor to the DNA sample taken from the mask, it would

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


             At trial, the State presented Lockwood' s testimony that he had heard Suggs and Watson

plan to steal marijuana from Halligan using a revolver and face masks. Lockwood' s description

of Suggs' s and Watson' s hair matched Andrew' s description of one of the men who had attacked


him and Halligan. Additionally, Watson admitted that he may have purchased marijuana at

Halligan' s house in the past. Watson also admitted that he had owned a mask and cap that

resembled those found by the police at Halligan' s home and that the mask and cap found by

police could have been the same cap and mask that he owned. This all constitutes evidence of

Watson' s guilt-that wouldnot-beeundermined by a newDNA test eliminating himas a

contributor to the DNA found on the mask.


             In his brief on appeal, Watson concedes that even if his " DNA was eliminated from the

mask,    it   would not preclude   him   being   the   second person   in the house." Br. of Appellant at 16.


He nonetheless argues that he meets the substantive requirement of RCW 10. 73. 170( 3) because a




4 In October 2009, the Washington State Patrol added Y -STR analysis technology to its DNA
testing technology. See http:// www.wsp            . a.gov.forensics /docs. crimelab news 0610. pdf.
                                                   w




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No. 42659 -5 -II



favorable DNA test        would " eliminate [ him] as a    donor in the    mind of the   jurors." Br. of


Appellant    at   16.   RCW 10. 73. 170( 3),   however, requires more. than a showing that a DNA test

may result in evidence favorable to the petitioner; to receive a new DNA test, the petitioner must

show that the " DNA evidence would demonstrate innocence on a more probable than not basis."

RCW 10. 73. 170( 3) (     emphasis added).     As   our   Supreme Court has    noted, "   The legislature' s use


of the word `innocence' indicates legislative intent to restrict the availability of postconviction

DNA testing to a limited class of extraordinary cases where the results could exonerate a person

who was      wrongfully    convicted of a crime."    Riofta, 166 Wn.2d at 369 n.4. In light of all the

evidence presented at trial, and by Watson' s own concession on appeal, a favorable DNA test

would not exonerate him of his convictions. Accordingly, we hold that any error in the trial

court' s consideration of Watson' s motion for post- conviction DNA testing was harmless and we

affirm.




          A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

             rtissoor ere .




                                                                B ' RGE   J.
                                                                                   u



We concur:




1VIAAA, J.




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