                                                                                             Filed
                                                                                       Washington State
                                                                                       Court of Appeals
                                                                                        Division Two

                                                                                        March 17, 2020
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
 STATE OF WASHINGTON,
                                                                    NO. 52747-2-II
                             Respondent,

         v.

 TONY MICHAEL KING,                                          UNPUBLISHED OPINION

                             Appellant.



       GLASGOW, J.—In 2013, Tony Michael King pleaded guilty to first degree assault, third

degree rape, and felony harassment—all domestic violence offenses. King’s victim was a woman

who was married to another man and having an affair with King. DNA evidence was collected

from the victim but never tested.

       In 2017, King filed a motion for postconviction DNA testing. King acknowledged having

sexual intercourse with the victim but contended the sex acts were consensual. He argued that the

postconviction DNA test would likely show the presence of other DNA, as well as his, supporting

his theory that the victim lied about the sex being nonconsensual in order to cover up her multiple

extramarital affairs.

       The superior court denied King’s motion for postconviction DNA testing, concluding that

DNA testing would not provide significant new, relevant, or admissible information because DNA

testing cannot prove whether force was used or whether the sexual intercourse was consensual.

The superior court further concluded that whether the DNA testing showed the presence of another
No. 52747-2-II


person’s DNA, the absence of any DNA, or only King’s DNA, the results would not demonstrate

King’s innocence on a more probable than not basis.

       King appeals arguing that the superior court abused its discretion when it denied his motion

for postconviction DNA testing. We disagree and affirm.

                                              FACTS

       In 2013, the State charged King with first degree assault, second degree rape, felony

harassment, and unlawful imprisonment, with deadly weapon enhancements. The probable cause

declaration reflects that King was having an affair with a married woman. When the woman

refused to leave her husband for King, he became upset, threatened her with a knife, duct taped

her wrists, ankles, and mouth, and locked her in his bedroom. While the victim was locked in the

bedroom, King had sexual intercourse with her three times. King squirted a mixture of acid and

poison into the victim’s eye.

       King then took the victim to Walgreens for her injured eye. While there, the victim

approached several people seeking help. Law enforcement responded, and when they attempted to

contact King, he ran but was ultimately apprehended. The victim was taken to the hospital for

treatment of her injuries. Hospital staff performed a sexual assault examination, and law

enforcement took the victim’s clothes into evidence. King contended that the sexual intercourse

with the victim was consensual, he duct taped her to “try a new sexual experience,” and he

“accidentally” squirted acid into her eye. Suppl. Clerk’s Papers (CP) at 200.

       King ultimately pleaded guilty to first degree assault, third degree rape, and felony

harassment—all domestic violence offenses. No DNA testing was done prior to King’s guilty plea.




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No. 52747-2-II


         In 2018, King filed a motion for postconviction DNA testing under RCW 10.73.170. King

argued that he had consensual sex with the victim and that postconviction DNA testing would

more than likely show that the victim was having multiple extramarital affairs. King argued that if

the DNA test results showed mixed DNA, it would “corroborate [his] contention it was consensual

sex and that [the victim] was routinely having sex with multiple partners, thus she made false

accusations against [King] to cover up her affairs from her husband.” CP at 52. He also argued

that if the test identified only his DNA, that would prove he allowed her to change her clothes

“support[ing] an inference to consensual sex and no imprisonment.” CP at 53-54.

         The superior court denied King’s motion for postconviction DNA testing, concluding that

because there was no factual dispute that sexual intercourse occurred between the victim and King,

DNA evidence would not lead to any more relevant information on the issue of consent. The

superior court concluded that the DNA testing would not demonstrate King’s innocence on a more

probable than not basis because “DNA testing cannot prove whether force was used or whether

sexual intercourse was consensual.” CP at 191. The superior court further concluded that whether

the DNA testing showed the presence of another person’s DNA, the absence of any DNA, or only

King’s DNA, the results would not demonstrate King’s innocence on a more probable than not

basis.

         King appeals.

                                            ANALYSIS

         King argues that the superior court abused its discretion when it denied his motion for

postconviction DNA testing under RCW 10.73.170. We disagree.




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No. 52747-2-II


       We review a trial court’s ruling on a motion for postconviction DNA testing for 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). A discretionary decision is based on untenable or

unreasonable grounds if it rests on facts unsupported by the record or was reached by applying an

incorrect legal standard. Thompson, 173 Wn.2d at 870.

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

postconviction DNA testing. The postconviction DNA testing statute imposes both substantive

and procedural requirements. State v. Riofta, 166 Wn.2d 358, 364, 209 P.3d 467 (2009). The

motion for DNA testing must state that (1) “[t]he court ruled that DNA testing did not meet

acceptable scientific standards,” (2) the DNA testing technology was not sufficiently developed to

test the relevant DNA, or (3) new DNA testing could be significantly more accurate or would

“provide significant new information.” RCW 10.73.170(2)(a)(i)-(iii). The motion must also

“[e]xplain why DNA evidence is material to the identity of the perpetrator of, or accomplice to,

the crime, or to sentence enhancement.” RCW 10.73.170(2)(b). The motion must further

“[c]omply with all other procedural requirements established by court rule.” RCW

10.73.170(2)(c). Once these requirements are met, the superior court must grant the motion if “the

convicted person has shown the likelihood that the DNA evidence would demonstrate innocence

on a more probable than not basis.” RCW 10.73.170(3).

       Assuming without deciding that King satisfies the procedural requirements of RCW

10.73.170, we hold that the superior court did not abuse its discretion by concluding that King

failed to satisfy the substantive requirement of RCW 10.73.170(3). In contrast with the “lenient”



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No. 52747-2-II


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 reviewing whether a motion for postconviction DNA

satisfies the substantive requirement, we presume the DNA test results would be favorable to the

convicted person and ask whether the newly discovered, favorable DNA test results, in light of all

of the evidence presented at trial, would raise the likelihood that the convicted person is innocent

on a more probable than not basis. Riofta, 166 Wn.2d at 367-68. King fails to meet this burden.

       The superior court properly concluded that King failed to show that DNA test results would

demonstrate his innocence on a more probable than not basis. King does not dispute that he had

sexual intercourse with the victim and assumes in his motion that the postconviction DNA test

would show the presence of his DNA. He contends that the DNA test results may show the

presence of other DNA, as well as his, thus supporting his theory that the victim was having sexual

intercourse with other men and lied about King raping her to cover up her affairs. 1 But whether

the victim had sexual intercourse with other men has no bearing on whether she consented to

sexual intercourse with King. At best, King could attempt to use a mixed DNA sample to

undermine the victim’s credibility.2 But RCW 10.73.170(3) requires more than a showing that a

DNA test may result in evidence favorable to the convicted person. To receive a postconviction

DNA test, the convicted person must show that the “DNA evidence would demonstrate innocence

on a more probable than not basis.” RCW 10.73.170(3) (emphasis added).



1
  In his appeal, King seems to have abandoned his argument that if the DNA test showed only his
DNA it would demonstrate his innocence because it would “show Defendant allowed [the victim]
to change her clothes which supports an inference to consensual sex.” CP at 53.
2
 It is doubtful whether such evidence would be admissible for that purpose under RCW
9A.44.020, the rape shield statute.


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No. 52747-2-II


       Although we presume the DNA evidence will be favorable to the convicted person, we also

evaluate the presumed favorable DNA evidence in the context of all the evidence. Riofta, 166

Wn.2d at 369. Given the strength of the evidence and the limited probative value of even favorable

DNA test results, King cannot show that the DNA evidence would demonstrate innocence on a

more probable than not basis. The arresting officer’s declaration of probable cause stated that the

victim approached multiple people at Walgreens seeking help. When law enforcement contacted

King, he ran. The victim recalled that King duct taped her wrists, ankles, and mouth to restrain and

silence her while he raped her. The victim and King both recalled that King squirted acid in the

victim’s eye while she was bound with duct tape. King’s account of the events differed only in that

he claimed the sexual intercourse was consensual, he duct taped the victim to “try a new sexual

experience,” and he accidentally squirted acid in her eye. Suppl. CP at 200.

       Assuming a favorable DNA test result and considering all of the evidence, the record

supports the superior court’s conclusion that King did not establish his innocence on a more

probable than not basis.3 We affirm.




3
  The State seems to suggest that King’s guilty plea, including his waiver of his right to present a
defense, would preclude him from obtaining a new trial even if DNA test results were favorable
to him. Because we conclude that King is not entitled to DNA testing under RCW 10.73.170, we
do not address this argument.


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No. 52747-2-II


        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 2.06.040,

it is so ordered.



                                                    Glasgow, J.
 We concur:



 Maxa, C.J.




 Sutton, J.




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