                                                               FILED 

                                                           OCTOBER 9, 2014 

                                                       In the Office of the Clerk of Court 

                                                     W A State Court of Appeals, Division III 





           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                              DIVISION THREE 


STATE OF WASHINGTON,                         )
                                             )           No. 31578-9-III
                      Respondent,            )
                                             )
      v.                                     )
                                             )
ANTHONY LAMAR ALLEN, SR,                     )           UNPUBLISHED OPINION
                                             )
                      Appellant.             )

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

technology, but the many benefits of DNA testing have caused the use of these methods

to explode in a wide variety of applications. Some of the most well-known benefits of

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

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

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

misidentifies an assailant he or she did not know.

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

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

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


that Allen did not commit the crimes; or (2) positive results would, in combination with

other evidence, show that he is innocent on a more probable than not basis. From the

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

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

victims of the crimes were acquaintances of Anthony Allen and would not misidentify

him. Thus, the statutory basis to compel DNA testing is not satisfied.

                                          FACTS

       This court addressed Anthony Allen's direct appeal in State v. Allen, noted at 2009

WL 2999187 (Wash. App. Div. 3). The following facts and procedure below are drawn

from that unpublished opinion and supplemented by the current record.

       On August 19,2007, Karla Jones and Dewey Hudson went to Hudson's Spokane

house to retrieve Jones' dog. Unknown to Jones and Hudson, Anthony Allen and two

other assailants, Uriah Allen and Wanda Phillips, waited inside Hudson's house. Hudson

and Jones had known Anthony Allen for many years.

       When Karla Jones and Dewey Hudson reached the porch of the house, Anthony

Allen opened the door and pulled Jones into the entryway. Allen and his companions

attacked Jones. Hudson tried to intervene, but Allen knocked him down, slapped him in

the face with a butcher knife, and hit him in the jaw with the butt of the butcher knife.

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




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No. 3 I 578-9-II1
State v. Allen


she "messed" with his aunt again. Clerk's Papers at 112. Allen hit Hudson with a pistol.

He and the two other assailants then left Hudson's house.

       Dewey Hudson begged Karla Jones not to call the police; but Jones took her dog,

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

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

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

       Officer Baldwinjoumeyed to Dewey Hudson's house and found Hudson

unconscious in his living room with a swollen and bloody face. Hudson first told

Baldwin nothing happened. Then recanting, Hudson told Officer Baldwin that he and

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

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

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

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

                                      PROCEDURE

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

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

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

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

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

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

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No. 31578-9-III
State v. Allen


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

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

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

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

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

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

jury found that the deadly weapon was not a firearm.

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

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

motion on the ground that testing could not prove his innocence on a more probable than

not basis.

                                  LAW AND ANALYSIS

       RCW 10.73.170 allows a convicted person currently serving a prison sentence to

petition the trial court for postconviction DNA testing. The petitioner must satisfY both

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

statute, adopted in 2000, reads in pertinent part:

              (1) A person convicted ofa felony in a Washington state court who
       currently is serving a term of imprisonment may submit to the court that
       entered the judgment of conviction a verified written motion requesting
       DNA testing, with a copy of the motion provided to the state office of
       public defense.
              (2) The motion shall:
              (a) State that:

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No. 31578-9-III
State v. Allen


              (i) The court ruled that DNA testing did not meet acceptable 

      scientific standards; or 

              (ii) DNA testing technology was not sufficiently developed to test
      the DNA evidence in the case; or
              (iii) The DNA testing now requested would be significantly more
      accurate than prior DNA testing or would provide significant new
      information;
              (b) Explain why DNA evidence is material to the identity of the
      perpetrator of, or accomplice to, the crime, or to sentence enhancement; and
              (c) Comply with all other procedural requirements established by
      court rule.
              (3) The court shall grant a motion requesting DNA testing under
      this section if such motion is in the form required by subsection (2) of this
      section, and the convicted person has shown the likelihood that the DNA
      evidence would demonstrate innocence on a more probable than not basis.

            (5) DNA testing ordered under this section shall be performed by the
      Washington state patrol crime laboratory. Contact with victims shall be
      handled through victim/witness divisions.

RCW 10.73.170. The statute was adopted to qualifY Washington State for federal

funding under the Justice For All Act of 2004. Pub. 1. No. 108-405, 118 Stat. 2260,

2261-62. The Washington statute is modeled after the federal DNA testing statute, 18

U.S.C. § 3600(a). State v. Riofta, 166 Wn.2d 358,368,209 P.3d 467 (2009).

      Procedurally, the petitioner must: state that DNA testing would provide significant

new information; explain why DNA evidence is material to the identity of the

perpetrator; and comply with applicable court rules. RCW 1O.73.107(2)(a)-(c). Here, the

trial court properly determined that Allen met the procedural requirements ofRCW

10.73.170(2)(a)(iii), since DNA testing was not done prior to trial.



                                             5

No. 31578-9-III
State v. Allen


       At issue is whether Anthony Allen satisfied the substantive requirements ofRCW

10.73.170. In contrast to the statute's lenient procedural requirements, its substantive

standard is onerous. State v. Riofla, 166 Wn.2d 358,367,209 P.3d 467 (2009). RCW

10.73.170(3) provides, "The court shall grant a motion requesting DNA testing under this

section if ... the convicted person has shown the likelihood that the DNA evidence

would demonstrate innocence on a more probable than not basis." A motion for testing is

not decided in a vacuum. State v. Riofla, 166 Wn.2d at 367-68. The statute requires a

trial court to grant a motion for postconviction testing when exculpatory results would, in

combination with the other evidence, raise a reasonable probability the petitioner was not

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

availability 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. Riofla,

166 Wn.2d at 369 nA.

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

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

part of the standard in RCW 10.73.170. A court should look to whether, considering all

the evidence from trial and assuming an exculpatory DNA test result, it is likely the

individual is innocent on a more probable than not basis. If so, the court should grant the

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




                                             6

No. 31578-9-III
State v. Allen


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

a new trial.

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

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

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

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

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

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

law and should be applied, we are forced to assume the trial court did not apply the

proper standard and therefore abused its discretion.

       In 1993, a 75-year-old widow living alone in Bremerton was repeatedly raped by

an intruder. State v. Crumpton, 172 Wn. App. 408,410,289 P.3d 766 (2012), review

granted, 177 Wn.2d 1015,306 P.3d 960 (2013), rev'd, 332 P.3d 448 (2014). The woman

was awoken at around 3: 15 a.m. and saw a man standing in her room. Id. The man

covered her head with bedding and raped her five times, four times anally and once

vaginally. Id. In between each rape, he rummaged through different rooms in the house

for valuables. Id. The woman was unable to give a good description of the rapist due to

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

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

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

                                               7

No. 31578-9- III
State v. Allen


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

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

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

DNA test and the likelihood of misidentification.

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

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

house ofVeasna Sok. Sok previously agreed to testify against Riofta for gang-related

activity. When Sok's little brother, the victim, exited the house, Riofta fired three shots

at him, missing each time. The victim recognized Riofta as his neighbor of four or five

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

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

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

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

       The Riofta court analyzed the impact of DNA testing by recognizing that other

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

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

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

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

probable than not basis.

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

                                             8

No. 31578-9-III
State v. Allen


knew Alexander Riofta. The two lived in the same neighborhood and had known each

other for four or five years. Riofta had visited the victim's home several times to meet

with his brother. The victim had ample time to recognize both Riofta and his voice at the

time of the attack. When police first interviewed Sok, he promptly provided Riofta's

name and an accurate physical description.

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

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

Thompson's request for DNA testing of vaginal swabs. Thompson had been convicted of

first degree rape. The victim was unsure of her ability to identifY the attacker and her

tentative description did not match Thompson.

       We review a trial court's decision on a motion for postconviction relief for abuse

of discretion. State v. Hardesty, 129 Wn.2d 303, 317, 915 P.2d 1080 (1996); Riofta, 166

Wn.2d at 370. The lower court did not abuse its discretion under the facts ofthis case,

       Just as the lack of DNA or the presence of other person's DNA on the hat in Riofta

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

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

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

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

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

assailant. Both arguments are illogical.

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No. 3 I 578-9-III
State v. Allen


       The presence of Anthony Allen's DNA on the knife would only show that Allen

was close enough to the altercation to be involved. Allen does not claim to be a victim.

Therefore, the presence of his DNA would further implicate him as the assailant. If

Allen's DNA is not found on the knife it would merely show that his DNA was not

transferred; it would not show that he did not wield the knife. If another person's DNA

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

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

Hudson's house and could have handled the knife before it ultimately ended up in Allen's

hands. A kitchen utensil is often used by multiple people and would have multiple

sources of DNA.

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

identified as the assailant. Like Riofta, the evidence in this case shows that Dewey

Hudson and Karla Jones knew Allen for many years. Hudson and Jones identified Allen

as the assailant during the initial investigation, and Jones identified him at trial. Since

Jones testified that Allen threatened to kill her, hearing his voice further confirmed an

identification. The prior relationship between Hudson, Jones, and Allen reduced the

possibility that Allen was mistakenly identified as the assailant.

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




                                              10 

No. 31578-9-III
State v. Allen


                  STATEMENT OF ADDITIONAL GROUNDS (SAG)

       Anthony Allen brings two claims in his SAG. First, Allen claims the trial court's

denial of his motion for postconviction DNA testing violates his due process rights under

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

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

Wn. App. 669, 692,142 P.3d 193 (2006), review granted in part, 161 Wn.2d 1001, 166

P.3d 718 (2007), ajJ'd, 166 Wn.2d 358, 209 P.3d 467 (2009).

       Second, Anthony Allen claims he was not afforded effective assistance of

appellate counsel in violation of the Sixth Amendment to the United States Constitution

and article I, section 22 of the Washington Constitution. If Allen believes he received

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

court pursuant to RAP 16.4. The current record is insufficient to address this issue.

       Allen's SAG presents no error for which this court could provide relief.

                                      CONCLUSION

       We affirm the trial court's denial of Anthony Allen's petition for DNA testing.

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

Washington Appellate Reports, but it will be filed for public record pursuant to




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No. 31578-9-111
State v. Allen


RCW 2.06.040.




WE CONCUR:




~)~
Brown, A.C.J.
                         ~(\
                   Lawrence-Berrey, J.




                  12 

