                            THIRD DIVISION
                           ELLINGTON, P. J.,
          BETHEL, J., and SENIOR APPELLATE JUDGE PHIPPS

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                       May 30, 2018




In the Court of Appeals of Georgia
 A18A0214. EARNEST RAY WHITE v. THE STATE.

      BETHEL, Judge.

      Earnest Ray White began serving a life sentence in 1996 following his

conviction for aggravated assault, burglary, and kidnapping.1 He has consistently

maintained his innocence, and in 2015 sought to re-open his case pursuant to OCGA

§ 5-5-41 (c), which provides those convicted of felony offenses with the ability to

request DNA testing of evidence if, among a number of other factors, the identity of

the perpetrator of the offense was at issue at trial. Because an improper legal standard




      1
       This Court affirmed his convictions and denied reconsideration of his appeal.
See White v. State, 233 Ga. App. 24 (503 SE2d 26) (1998). The Supreme Court
granted certiorari but also affirmed his conviction. See White v. State, 271 Ga. 130
(518 SE2d 113) (1999).
was applied below, we vacate the order of the trial court and remand the case for

further proceedings.

      OCGA § 5-5-41 (c) (1) provides that, subject to provisions regarding

extraordinary motions for new trials, “a person convicted of a felony may file a

written motion before the trial court that entered the judgment of conviction in his or

her case for the performance of forensic [DNA] testing.” OCGA § 5-5-41 (c) (3) and

(4) further provide that such motion must be verified by the petitioner and must show

or provide a number of items of information regarding the evidence to be tested,

including its location, who possesses it, and the results of any other DNA testing

conducted by either the petitioner or the State during the original prosecution of the

case. Assuming the petitioner complies with the filing requirements set forth in

OCGA § 5-5-41 (c) (3) and (4), the trial court is required to hold a hearing on the

motion. OCGA § 5-5-41 (c) (6). If the petitioner satisfies the filing requirements and

persuades the judge that there is a reasonable probability that the trial verdict would

have been different if the results of the requested DNA testing had been available at

the time of trial and indicated the presence of a third person, the petitioner’s motion

is to be granted where each of the following requirements have been established:



                                          2
     (A) The evidence to be tested is available and in a condition that would
     permit the DNA testing requested in the motion;


     (B) The evidence to be tested has been subject to a chain of custody
     sufficient to establish that it has not been substituted, tampered with,
     replaced, or altered in any material respect;


     (C) The evidence was not tested previously or, if tested previously, the
     requested DNA test would provide results that are reasonably more
     discriminating or probative of the identity of the perpetrator than prior
     test results;


     (D) The motion is not made for the purpose of delay;


     (E) The identity of the perpetrator of the crime was a significant issue in
     the case;


     (F) The testing requested employs a scientific method that has reached
     a scientific state of verifiable certainty such that the procedure rests
     upon the laws of nature; and


     (G) The petitioner has made a prima facie showing that the evidence
     sought to be tested is material to the issue of the petitioner’s identity as
     the perpetrator of, or accomplice to, the crime, aggravating
     circumstance, or similar transaction that resulted in the conviction.


OCGA § 5-5-41 (c) (7).

                                          3
      In this case, the trial court determined that the item of evidence White sought

to test—workout pants worn by the victim during the incident giving rise to this

case—had been stored for nearly 20 years in a warehouse with no temperature or

humidity control. The trial court also noted testimony from a forensic expert that heat,

humidity, and light generally have a deleterious effect on biological specimens. Based

on that evidence, the trial court concluded that there was a substantial likelihood that

the biological specimens, namely epithelial skin cells presumed to be located on the

pants, had been materially altered by the effects of light, heat, and humidity, such that

the requested testing would no longer meet the standards set forth in OCGA § 5-5-41

(c). The trial court thus ruled that White had failed to establish the factors set forth

in OCGA § 5-5-41 (c) (7) (A) and (B) and denied his petition for DNA testing.

      Following the denial of his motion for reconsideration by the trial court, White

filed an application for discretionary review, which this Court granted. This appeal

followed.

      1. As this appears to be the first opportunity for this Court to review a trial

court’s ruling under OCGA § 5-5-41 (c) (7) (A) and (B), we must first determine the

appropriate legal standard to be applied by the trial court in its consideration of the

petitioner’s motion under those provisions as well as this Court’s standard of review.

                                           4
Cf. Crawford v. State, 278 Ga. 95, 96-99 (2) (597 SE2d 403) (2004) (considering

whether petitioner had complied with pleading requirements set forth in OCGA § 5-5-

41 (c) (3) and (4)); Williams v. State, 289 Ga. App. 856 (658 SE2d 446) (2008)

(affirming denial of motion where no evidence in trial record established that identity

of perpetrator was an issue in the case).

      We first note that out-of-time motions for a new trial made pursuant to OCGA

§ 5-5-41 (a) and (b) are reviewed for abuse of discretion where the basis for the

request is that new evidence has been discovered. See Drane v. State, 291 Ga. 298,

300-01 (2) (728 SE2d 679) (2012) (“an extraordinary motion for a new trial, as

contrasted with a motion for a new trial made within 30 days of a judgment, is not

favored; consequently, a stricter rule is applied to an extraordinary motion for a new

trial based on the ground of newly available evidence than to an ordinary motion on

that ground.” (citation and punctuation omitted)).2 Petitions for DNA testing pursuant


      2
       In that posture, the petitioner must satisfy the requirements set forth in
Timberlake v. State, 246 Ga. 488, 491 (1) (271 SE2d 792) (1980), which provides that

      It is incumbent on a party who asks for a new trial on the ground of
      newly discovered evidence to satisfy the court: (1) that the evidence has
      come to his knowledge since the trial; (2) that it was not owing to the
      want of due diligence that he did not acquire it sooner; (3) that it is so

                                            5
to OCGA § 5-5-41 (c) are “subject to the provisions of subsections (a) and (b)” of

OCGA § 5-5-41 governing extraordinary motions for new trial,3 and a motion for

DNA testing is a preliminary matter and will either precede or accompany any motion

for a new trial predicated upon the discovery of exculpatory DNA evidence. See State

v. Clark, 273 Ga. App. 411, 415 (1) (615 SE2d 143) (2005) (noting that a motion for

DNA testing may be filed before or in conjunction with the filing of extraordinary

motion for new trial).

      The language of OCGA § 5-5-41 (c) (7) provides that the court “shall grant the

motion for DNA testing” so long as each of the seven factors listed in that subsection

have been “established” by the petitioner (emphasis supplied). Although

“establishing” a fact is not necessarily the same as “proving” it, a trial judge will

necessarily be called upon to resolve factual issues in determining whether the

petitioner has “established” each of the seven criteria set forth in OCGA § 5-5-41 (c)



      material that it would probably produce a different verdict; (4) that it is
      not cumulative only; (5) that the affidavit of the witness himself should
      be procured or its absence accounted for; and (6) that a new trial will not
      be granted if the only effect of the evidence will be to impeach the credit
      of a witness.
      3
          OCGA § 5-5-41 (c) (1).

                                          6
(7). When faced with conflicting evidence or disputed testimony, we generally afford

some deference to the fact-finder to assess the credibility of witnesses and weigh the

evidence presented, and such deference is no less critical in a trial court’s inquiry

under OCGA § 5-5-41 (c). Consequently, the trial judge reviewing a motion for DNA

testing sits as the trier of fact and based on the evidence presented must determine

whether the criteria set forth in OCGA § 5-5-41 (c) (7) have been met and whether

there is a reasonable probability that the DNA evidence sought by the petitioner, had

it been available at his or her trial, would have resulted in a different outcome.4

      This is similar to a trial court’s role in considering a claim of ineffective

assistance of counsel as part of a post-conviction motion for new trial. In that posture,

the trial court sits both as the finder of fact in regard to any alleged deficiency and

then ultimately determines whether the deficiency, if any, affected the trial verdict.

See, e.g., Green v. State, 302 Ga. 816, 817-18 (2) (809 SE2d 738) (2018). As our

Supreme Court has further explained,

      4
        See Crawford, 278 Ga. at 97-98 (2) (a) (noting trial court’s weighing of
presumed DNA evidence against other evidence of guilt presented at trial); OCGA
§ 5-5-41 (c) (6) (E) (“The purpose of the hearing shall be to allow the parties to be
heard on the issue of . . . whether upon consideration of all the evidence there is a
reasonable probability that the verdict would have been different if the results of the
requested DNA testing had been available at the time of trial, and whether the
requirements of [OCGA § 5-5-41 (c) (7)] have been established”).

                                           7
      [A]lthough both the performance and prejudice components of an
      ineffectiveness inquiry involve mixed questions of law and fact, a trial
      court’s factual findings made in the course of deciding an ineffective
      assistance of counsel claim will be affirmed by the reviewing court
      unless clearly erroneous.


Green, 302 Ga. at 818 (2) (citation omitted). However, in considering a claim of

ineffectiveness, this Court is to “independently apply the legal principles to the facts.”

Wright v. State, 291 Ga. 869, 870 (2) (734 SE2d 876) (2012) (citation and

punctuation omitted).

      We believe this sort of bifurcated standard of review is consistent with the role

of the trial and appellate courts under the DNA testing statute. The DNA statute

clearly situates the trial court as the trier of fact and calls upon it to render legal

conclusions based on its findings. See OCGA § 5-5-41 (c) (6) (E) and (c) (7). The

trial court is ideally situated to weigh the credibility of the evidence presented to it

in support or opposition to a motion under OCGA § 5-5-41 (c) and to weigh such

evidence in making factual determinations. See Handley v. State, 289 Ga. 786, 787

(2) (a) (716 SE2d 176) (2011) (noting that credibility determinations of trial court are

to be accepted unless clearly erroneous). However, although this Court should be

highly deferential to a trial court’s factual determinations under OCGA § 5-5-41 (c),

                                            8
this Court is equally capable of applying the provisions of the statute to such facts and

to determine whether the facts found by the trial court support its legal conclusions.

      Thus, factual findings under OCGA § 5-5-41 (c) will be upheld by this Court

unless they are clearly erroneous, but this Court will independently apply the DNA

statute to the trial court’s findings. With those standards in mind, we turn now to a

review of the trial court’s consideration of White’s motion.

      2. Based on our review of the record, we find that the trial court misapplied the

law in determining whether White had satisfied the requirements of OCGA § 5-5-41

(c) (7). Consequently, the trial court’s order must be vacated, and this case must be

remanded to the trial court for additional proceedings.

      Here, although there is support in the record for the trial court’s general

conclusion that the biological material, if any, on the evidence in question may have

degraded due to the effects of time, heat, and light, that was not the proper inquiry

that was before the trial court. Instead, the trial court was charged with determining

whether the petitioner had established each of the factors set forth in OCGA § 5-5-41

(c) (7) and whether, in the judgment of the trial court, there is a reasonable probability

that the verdict in White’s trial would have been different if the results of the DNA

testing he seeks had been available at the time of the trial. Our review of the record

                                            9
of the proceedings on White’s motion reveals that this was not the inquiry engaged

in by the trial court below.

      At the first hearing on White’s motion, White’s attorneys proffered evidence5

establishing that the crimes for which White was convicted involved a struggle with

a woman who was wearing a pair of spandex pants. The perpetrator attacked her from

behind and ripped her pants in the course of trying to pull them down with his hands.

The victim escaped from the struggle while still wearing the torn pants. The pants

were placed in the chain of custody and had been in storage since White’s trial.

      The State proffered the testimony of its own expert who had stated that “touch

DNA” (as opposed to blood or semen) yields “sketchy results . . . if the material is

old.” The expert had indicated to the State that temperature and storage conditions

would also affect any testing performed. The expert had also indicated to the State

that because the pants had been used as an exhibit in White’s trial (albeit not as

evidence containing potential DNA samples), any sample would be compromised,


      5
         At the initial hearing on this motion, no witnesses were called. The State had
initially indicated that it would consent to White’s request for DNA testing, but the
record reflects that it withdrew its consent the morning of the initial hearing. As no
witnesses were present, the judge simply received arguments from counsel
summarizing their understanding of the case as well as the testimony they would have
presented had witnesses been called.

                                          10
diminishing the probability that any probative results would be found through testing.

At the close of the hearing, the judge took the matter under advisement.

      The judge held a second hearing on the motion, and White called the manager

from the Georgia Bureau of Investigation (GBI) Forensic Biology Section to testify.

The witness was tendered as an expert in forensic biology and DNA testing without

objection from the State.

      The expert testified that so-called “contact DNA” is DNA that is recovered

from skin cells based on contact with an object or an item of evidence. He further

testified that the GBI had in the past been able to obtain a contact DNA profile from

articles of clothing. He noted that not all items of evidence submitted for DNA testing

are ultimately found to contain contact DNA or skin cells. However, he noted that

skin cells can be seen under a microscope and that, when an article of clothing is

submitted for testing, samples are taken from portions of the clothing where skin cells

can be seen. He noted that until an item of evidence is viewed under a microscope,

there is no way to tell if there are skin cells on that item.

      The expert further testified that skin cells are transferred to an item by touching

and that the higher frequency with which an item is touched increases the chance that

skin cells are transferred. He noted that, with regard to the spandex pants White is

                                           11
seeking to test, a GBI analyst would first try to isolate the area in which the assailant

grabbed the pants in order to rip them. He stated that, although the perpetrator was

unlikely to have touched the pants with great frequency, due to the friction and the

force with which the perpetrator attempted to pull the pants down, it is possible that

the perpetrator’s skin cells were deposited on the pants during the struggle. He opined

that it was possible other DNA profiles could appear on the pants, as they had been

handled by the district attorney at trial and presumably other individuals. However,

he emphasized that only testing of the pants would determine whether any DNA

profiles could be found on them and that the analyst would have no idea what the

results would be prior to testing.

      The expert testified that age impacts the evidence, noting that over time the

DNA is going to be degraded. He noted that, with skin cells specifically, there may

not be many cells present on the evidence to begin with, the cells may degrade to the

point where a useful DNA profile cannot be obtained. He noted again, however, that

only through the DNA testing process could GBI determine whether there was

contact DNA on the item of evidence that could be tested for a profile. He also

testified that there would be no way to know if the evidence would contain DNA

profiles for multiple individuals until the testing is actually performed.

                                           12
      The expert stated that he did not know whether the spandex pants had been

kept in a light- and temperature-controlled environment, with measures in place to

prevent contamination. He noted that heat and light would generally cause contact

DNA to degrade, but testified that he did not know if heat and light caused the alleged

skin DNA to degrade in this case. He explained that degradation was likely to occur

even if the evidence was stored at room temperature, but that higher temperatures

would likely accelerate the rate of degradation. He noted that an analyst would not

know how much contact DNA on an item of evidence had degraded until the item was

subjected to a DNA analytical process.

      In response to questions from the trial court, the expert noted that in order to

identify whether any DNA found on the evidence tested belonged to a specific

individual, the sample would have to be compared with a sample from that individual.

In response to further questioning by the court, the expert stated that, given the length

of time since White’s trial and assuming the evidence was not housed properly, it was

his opinion that there was “a very, very slim chance that you would get something

useful” from any testing that could be performed. However, he explained that it was

possible, even in light of those conditions, that a useful sample of DNA could be



                                           13
found on the pants. He noted again that there was no way to know whether the item

contained a useful contact DNA sample until it was tested.

      Based on this testimony, the trial court ruled that there was a substantial

likelihood that the biological specimens, namely epithelial skin cells presumed to be

located on the pants, had been materially altered by the effects of light, heat, and

humidity, such that the requested testing would no longer meet the standards set forth

in OCGA § 5-5-41 (c). The trial court thus ruled that White had failed to establish the

factors set forth in OCGA § 5-5-41 (c) (7) (A) and (B) and denied his petition for

DNA testing. However, the trial court’s findings regarding the degradation of the

biological material on the pants were inapposite to the set of legal conclusions OCGA

§ 5-5-41 (c) directs it to draw. It was not up to the trial court to determine from the

testimony presented whether sufficient DNA, if any, was transferred to the spandex

pants during the attack on the victim or whether it had deteriorated. Rather, the proper

question was whether the pants were in a condition that would allow for the requested

test to be conducted. Although the witnesses were doubtful that the pants might still

contain testable biological material, they could not categorically deny that testable

and usable DNA would be found when the pants were subjected to the GBI’s testing

protocol.

                                          14
      Moreover, that any DNA transferred to the pants during the struggle between

the victim and the perpetrator may have degraded over time, been altered, or become

unusable does not speak to whether the evidence—the pants—were available for

testing and had been subject to a chain of custody. Under the DNA statute, the

evidence to be tested is not the same as the DNA potentially contained therein, as the

statute draws a clear distinction between the two. See OCGA § 5-5-41 (c) (3) (A)

(providing that the petitioner must show that “[e]vidence that potentially contains

[DNA] was obtained in relation to the crime[.]” (emphasis supplied)). This is a

critical statutory distinction that the trial court’s consideration of White’s motion

failed to make.6

      6
         In its brief, the State provided a lengthy survey of DNA testing statutes in
effect in other jurisdictions. However, while the State argues that reading Georgia’s
testing statute in conjunction with its counterparts from other jurisdictions supports
its contention that White and other similarly situated Georgians carry the burden of
establishing that DNA on the evidence to be tested has not been degraded or altered,
the opposite is true. In fact, the State’s survey of state and federal DNA testing
statutes only illustrates the range of policy choices before the General Assembly in
determining what criteria a petitioner must satisfy before testing is to be permitted.
As White noted in response to the State’s argument, in the taxonomy of DNA statutes,
the General Assembly elected something of a middle ground when it imposed the
availability and chain of custody requirements set forth in OCGA § 5-5-41 (c) (7) (A)
and (B). For instance, some states appear to have placed a more minimal threshold
burden on petitioners in establishing their right to test evidence for DNA. See, e.g.,
R.I. GEN. LAWS § 10-9.1-12 (no requirement to show a chain of custody for DNA
testing petitions in Rhode Island). However, Massachusetts has imposed the

                                         15
      Finally, the portions of the DNA statute analyzed by the trial court require the

petitioner to make only a threshold factual showing of the listed factors, namely that

the evidence to be tested is available and that it has been subject to a chain of

custody. The statute does not permit the trial court to speculate as to the viability of

any DNA potentially located on the evidence in question. To permit such speculation

to factor into whether the petitioner should be afforded the right to test the evidence

for DNA in the first instance violates the clear directive of the General Assembly and,

as a practical matter, would likely exclude DNA testing of all but the most recently

and pristinely stored physical evidence. That violates both the spirit and the letter of

OCGA § 5-5-41 (c).

      Thus, because the trial court here misapplied the law, we vacate the order

denying White’s motion and remand the matter to the trial court for further

proceedings consistent with this opinion. See Welbon v. State, 301 Ga. 106, 109-10



requirement that the petitioner make a showing, by a preponderance of the evidence,
that the biological material on the evidence in question has not deteriorated such that
requested analysis would lack probative value. See MASS. GEN. LAWS ch. 278A, § 7
(b) (2). Reference to this limited sample of statutory approaches simply belies any
notion that jurisdictions in the United States have uniformly placed the burden on
petitioners to demonstrate, at the outset, that the biological material thought to be
present on the evidence to be tested has not been altered or degraded. In any event,
that is not the law in Georgia.

                                          16
(2) (799 SE2d 793) (2017) (“Where the trial court has used a wrong standard in

reaching its conclusion, a remand may be appropriate”). In light of the legal standards

announced in this opinion and the relatively undeveloped state of the law at the time

the trial court considered White’s motion, the trial court may, in the interests of

justice, elect to hold a new hearing on this matter so that White and the State may

present evidence and arguments both as to the factors set forth in OCGA § 5-5-41 (c)

(7) and as to whether there is a reasonable probability that the verdict in White’s trial

would have been different if the results of his requested DNA testing had been

available at the time. See OCGA § 5-5-41 (c) (6) (E).

      Judgment vacated and remanded. Ellington, P. J., and Senior Appellate Judge

Herbert E. Phipps concur.




                                           17
