                                                                         F/LED
                                                                 COURT OF APPEALS DIV I
                                                                  STATE OF WASHINGTON

                                                                 2018 HAY I 14 MI 8:59
      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


STATE OF WASHINGTON,                                   No. 76073-4-1

                      Respondent,                      DIVISION ONE

              V.

ALFONSO V. SENIOR, JR.,                                UNPUBLISHED

                      Appellant.                       FILED: May 14, 2018



       Cox, J. — A defendant seeking postconviction DNA testing must show that

a favorable DNA test result would demonstrate his innocence is more probable

than not.1 Because Alfonso Senior fails to meet this burden, the trial court did

not abuse its discretion in denying his motion. We affirm.

       One evening, Senior joined his brother, Antoine Senior, and their cousin,

Robert Swaggerty, at the North Point Bar & Grill. Darrell Webster was also at the

bar that evening, along with his friend, Charles Bullock, long time acquaintance

Arnie Hudson, and Pia lnkamp, with whom Webster had previously exchanged

phone numbers.

       Senior and Webster got into a shoving match outside the bar. A local

tribal police officer arrived at the scene and broke up the dispute.

       Antoine then asked lnkamp and her friend if they would like to have

breakfast at his apartment. They agreed to discuss his proposition further at a



       1 RCW 10.73.170(3).
No. 76073-4-1/2


nearby gas station. Senior, Antoine, Swaggerty, Webster, Bullock, Hudson, and

Inkamp all drove to the gas station.

      Senior, Antoine, and Swaggerty arrived in an SUV. Senior remained by

this vehicle while Antoine and Swaggerty went to speak to Inkamp. Webster and

Bullock arrived shortly after. After a short verbal confrontation between Bullock

and Senior, Senior shot Webster, who died. Senior, Antoine, and Swaggerty fled

in the SUV.

       During the investigation that followed, police recovered a fired bullet, a

9mm casing from a fired projectile, a 9mm casing from an unfired projectile, and

watch fragments from the scene. In Antoine's apartment, police found Senior's

identification card along with a pistol case and ammunition box, both for a 9mm

pistol. Police arrested Senior, Antoine, and Swaggerty soon afterwards.

       Police interviewed Antoine after the shooting. He repeatedly stated that

he did not know who the shooter was, and that he had seen neither any shooting

nor any gun.

      The State charged Senior with second degree murder and unlawful

possession of a firearm in the second degree.2 A jury found him guilty of both

crimes.3 We previously affirmed these convictions on appea1.4




       2 State v. Senior and Senior, No. 67913-9-1, slip op. at 2(Wash. Ct. App.
Apr. 22, 2013)(unpublished), http://www.courts.wa.gov/opinions/pdf/679139.pdf.

      3 Id.

      4   id.
No. 76073-4-1/3


       The State also charged Antoine with felony rendering assistance in the

first degree and unlawful possession of a firearm. Antoine entered a North

Carolina v. Alford5 plea to both offenses.

        In June 2016, Senior moved for postconviction DNA testing. He

requested that the watch fragments be tested for DNA and fingerprints. He

included a crime scene diagram and a declaration from Antoine with that motion.

In his sworn declaration, Antoine testified that a person named Daz, not Senior,

shot Webster.

       Allegedly, Daz had been over at Antoine's house earlier that night,

drinking and playing video games. From there, Antoine had left to go to a casino

and Daz had gone to the North Point Bar and Grill. Antoine, with Senior, later

joined Daz at the bar.

       Daz, Antoine claimed, had been in a silver Volvo that arrived at the gas

station shortly after Antoine arrived in the SUV. Antoine estimated that between

15 to 20 people were present at that time. Antoine explained how he got into a

fight with Webster while Senior stood by the SUV. Daz purportedly then shot

Webster and fled in the Volvo. Antoine fled in the SUV.

      At some point after, Daz called Antoine to express anger that he had

dropped his watch at the crime scene.

      Senior also included with his motion certain police reports involving

Antoine and the Volvo from 2014.




      5 400   U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162(1970).


                                        3
No. 76073-4-1/4


       The State answered Senior's motion, attaching transcripts of Antoine's

statements given after the shooting.

       The trial court denied Senior's motion. It concluded that:



              3. The defendant has failed to explain why DNA testing of
       the identified items from the crime scene would be material to the
       identity of the perpetrator. There is no credible evidence that
       supports the conclusion that the absence of the defendant's DNA or
       the presence of another's DNA on these items would tend to
       establish that the defendant is innocent of murder or unlawful
       possession of a firearm.

              4. Even presuming that the results of DNA testing of the
       identified items would be favorable to the defendant, this Court
       finds that such results would not demonstrate the defendant's
       innocence on a more probable than not basis.[8]

       Senior unsuccessfully moved for reconsideration.

       Senior now appeals.

                                  DNA TESTING

       Senior argues through counsel and in his SAG that the trial court abused

its discretion in denying his motion to have the watch fragments DNA tested. We

disagree.

       A defendant has no constitutional right to DNA testing.7 But RCW

10.73.170 permits the defendant the statutory right to "seek DNA testing in order

to establish their innocence."8



      6   Clerk's Papers at 58.

      7 State v. Crumpton, 181 Wn.2d 252, 258, 332 P.3d 448 (2014).
      8   id.
No. 76073-4-1/5


       The statute has procedural and substantive components. The parties do

not dispute that Senior has met the statute's procedural requirements.

       Under RCW 10.73.170(3), the convicted person must "show[]the

likelihood that the DNA evidence would demonstrate innocence on a more

probable than not basis." "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."9 Thus, the defendant

must "show a reasonable probability of his innocence before requiring State

resources to be expended on a test."19 In doing so, the court should be mindful

that "there will always be strong evidence against a convicted individual since

they were convicted of the crime beyond a reasonable doubt."11 If the trial court

finds that the defendant has met his burden, it must allow DNA testing.12

       We review for abuse of discretion a trial court's ruling on a motion for

postconviction DNA testing.13 We do not review the trial court's credibility

findings.14




       9   Id. at 260.
       10 State v. Riofta, 166 Wn.2d 358, 370, 209 P.3d 467(2009).

       11 Crumpton, 181 Wn.2d at 262.

       12   Id. at 261-62.

       13   Id. at 257.

       14   In re Trust and Estate of Me[ter, 167 Wn. App. 285, 301, 273 P.3d 991
(2012).


                                          5
No. 76073-4-1/6


       Numerous cases, discussed by Senior and the State, are illustrative. In all

but one of these, rape defendants have moved for DNA testing to show the

absence of their DNA in the evidence supporting conviction.15

       These cases "involve[] weak identification evidence but otherwise had

very strong physical and circumstantial evidence tying the convicted individual to

the crime."16 When "there was only one rapist and no other sexual activity, any

DNA on the tested evidence would necessarily have to be the rapist's DNA."17

Thus, when a "victim had intercourse with only one person on the night of the

attack," then DNA test results excluding the convicted person, would more

probably than not establish innocence.15 In such circumstances, DNA results are

"logically very persuasive."19

       The other cited case, State v. Riofta2° provides a contrasting illustration.

Alexander Riofta had been convicted of first-degree assault with a firearm.21 The

crime occurred early one morning, when Ratthana Sok stepped outside his




      15 Crumpton, 181 Wn.2d 252; State v. Thompson, 173 Wn.2d 865, 271
P.3d 204 (2012); In re Bradford, 140 Wn. App. 124, 165 P.3d 31 (2007).

       16   Crumpton, 181 Wn.2d at 261.
       17   Id.

       18 Thompson, 173 Wn.2d     at 875.

       19   Crumpton, 181 Wn.2d at 263.
       20 166 Wn.2d 358, 209 P.3d 467(2009).

       21   Id. at 363.


                                          6
No. 76073-4-1/7


house.22 He noticed a car parked on the street with several passengers inside.23

One male passenger exited the car and approached Sok.24 He was wearing a

white hat.25 Sok recognized the man as Riofta whom he had known well for

several years.26

      Riofta asked for a cigarette, but Sok explained that he did not smoke.27

Riofta pulled out a revolver and attempted to shoot Sok in the forehead.28 Sok

escaped and Riofta fled, dropping the white hat on the sidewalk.29

      It was discovered afterwards that the car had been stolen the night before

and that the white hat belonged to the car's owner.3°

      At trial, Sok identified Riofta.31 The State also presented Riofta's motive to

scare Sok's brother, to deter him from cooperating in the separate prosecution of




      22   Id. at 362.
      23 id.


      24   id.

      25   Id.

      26   Id. at 363.
      27   Id. at 362.

      28   Id.

      29   Id.

      39 Id. at 363.

      31   Id.


                                        7
No. 76073-4-1/8


two of Riofta's acquaintances who had been charged in connection with a deadly

massacre.32

      Postconviction, Riofta moved for the white hat to be DNA tested.33 He

argued that such testing would prove someone else had worn the hat at the time

of the shooting, and was thus the identified shooter.34 The supreme court

disagreed.35

      Presuming that DNA testing would prove favorable to Riofta, the court

reasoned that two outcomes were possible. The hat could show either the

absence of Riofta's DNA or the presence of another person's DNA.36 Neither

outcome, the court held, would "likely demonstrate [Riofta's] innocence on a

more probable than not basis."37

      The absence of Riofta's DNA would not be probative because the shooter

had only worn the hat briefly, "perhaps only as long as it took to walk over from

the curb and fire the gun."35 Additionally, Riofta's head was shaved and was less




      32   Id.

      33   Id.

      34   Id. at 361.

      35 Id. at 362.

      36   Id. at 370.

      37   Id.

      38   Id.


                                         8
No. 76073-4-1/9


likely to leave DNA evidence.39 Thus,"the absence of his DNA on the white cap

would not exclude him as the perpetrator."4°

      The presence of a third person's DNA on the hat would also fail to exclude

Riofta as the perpetrator.41 "Any of a number of people besides the shooter

could have worn the white hat at some time after the vehicle was stolen."42

Absent some special fact tying Riofta alone to the hat, the presence of another's

DNA would be unavailing.43

       Based on these considerations and Sok's strong eyewitness identification,

the supreme court concluded that Riofta had failed to show that a favorable DNA

result would demonstrate his innocence on a more probable than not basis.44

       The court also held that a letter Riofta had submitted from trial counsel for

the defendants in the massacre prosecution was unpersuasive.45 The letter

stated that one of the defendants in that case had told his counsel that Riofta

was innocent and that he knew the identity of the real shooter but would not




      39   Id.

      4° Id.

      41   Id.

      42   Id.

      43   Id. at 371.

      44   Id.

      45   Id. at 372.


                                         9
No. 76073-4-1/10


disclose it.46 The supreme court explained that "posttrial affidavits casting blame

on third parties 'are to be treated with a fair degree of skepticism.'"47

       Here, a favorable DNA test result would not show a reasonable probability

of Senior's innocence. Such a result would show either the absence of Senior's

DNA or the presence of another person's DNA on the watch fragments.

       Taken alone, such a result would have no probative value because it

would show, at best, that someone had dropped a watch at a crowded gas

station. Such a result would provide even weaker evidence than the result

proposed in Riofta where the evidence at least established that the shooter had

worn the hat, and certainly weaker evidence than that supporting testing in the

single rapist cases.

       In the single rapist cases, the DNA test result necessarily had to show the

rapist, and would show whether it was the defendant or a different person. In

Riofta, several people, relevant or irrelevant to the criminal conduct, could have

worn the hat. Here, anyone at the crowded gas station, whether at the time of

the shooting, or prior, could have left the watch fragments.

       Presuming a favorable DNA test result, the jury's guilty verdict is still

supported by substantial other evidence. Arnie Hudson, an eyewitness

bystander at the gas station, testified that she had watched Senior as he fired the

gun at Webster's head. Additionally, ballistics tests showed that the rifling


       46   id.

       47Id. (quoting Herrera v. Collins, 506 U.S. 390, 423, 113 S. Ct. 853, 122 L.
Ed. 2d 203(1993)(O'Connor, J., concurring)).


                                          10
No. 76073-4-1/11


characteristics of a gun seized from Antoine's bedroom were consistent with a

fired bullet found at the crime scene. Bullock identified Senior, Antoine, and

Swaggerty in a photographic lineup. And he explained that Senior was the one

he was not holding back when Webster was shot.

       Senior points to inconsistent testimony given by other witnesses. For

example, Levonte Smith testified at trial that Senior was not the shooter. Other

witnesses variously described Senior's height. They variously described the

color of his shirt. And they variously described his skin color. But the jury still

found Senior guilty beyond a reasonable doubt, and it is unclear how a favorable

DNA test result standing alone would be relevant or helpful. The trial court

reached this conclusion, stating that Senior had not shown that"DNA testing of

the identified items. .. would be material to the identity of the perpetrator."

       A favorable DNA test result could be probative only if the trial court found

Antoine's declaration credible. The trial court, properly exercising its discretion,

concluded that "[t]here is no credible evidence that supports" Senior's contention

that DNA testing would show his innocence. The trial court could reasonably

treat Antoine's declaration, given his involvement with the crime and his

inconsistent earlier statements to police, with skepticism.

       The other supporting document Senior provided, the map, does not help

his argument. It shows that the watch pieces were found approximately 12 feet

from the fired bullet and 18 feet from the casing. Such a distance attenuates any

connection between the shooter and the watch.




                                          11
No. 76073-4-1/12


       Even if the trial court found Antoine's declaration credible, it could still find

that Senior failed to meet his burden. Daz has not been identified.

Consequently, his DNA has not been tested. Thus, a favorable DNA test result

would merely show that somebody aside from Senior left DNA on the watch.

       For these reasons, the trial court did not abuse its discretion in denying

Senior's motion to have the watch tested for DNA. Because he has made no

argument on appeal regarding a test for fingerprints, we hold this argument

abandoned."

       We affirm the order denying the motion for DNA testing.              .010011.10




WE CONCUR:



  111Priut.1 rg&T-




       48   Holder v. City of Vancouver, 136 Wn. App. 104, 107, 147 P.3d 641
(2006).


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