                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                     STATE OF ARIZONA, Respondent,

                                        v.

                  LOPEZ GARCIA NEWHALL, Petitioner.

                         No. 1 CA-CR 13-0349 PRPC
                              FILED 11-13-2014


     Petition for Review from the Superior Court in Navajo County
                         No. S0900CR97000410
         The Honorable Robert B. Van Wyck, Judge Pro Tempore

                REVIEW GRANTED; RELIEF GRANTED


                                   COUNSEL

Navajo County Attorney’s Office, Holbrook
By Galen Wilkes
Counsel for Respondent

Arizona Justice Project, Tempe
By Lindsay Herf
Counsel for Petitioner
                          STATE v. NEWHALL
                          Decision of the Court

                      MEMORANDUM DECISION

Presiding Judge Peter B. Swann, Judge Michael J. Brown and Judge
Kenton D. Jones delivered the following decision.


PER CURIAM:

¶1           Petitioner Lopez Garcia Newhall petitions this court to review
the dismissal of his petition for post-conviction deoxyribonucleic acid
(DNA) testing. We have considered his petition and, for the reasons stated,
grant review and relief.

                             BACKGROUND

¶2            In 2000, a jury convicted Newhall of one count of kidnapping
and ten counts of sexual assault. The trial court sentenced him to an
aggregate term of 250 years’ imprisonment and this Court affirmed his
convictions and sentences on direct appeal. State v. Newhall, 1 CA-CR 00-
0318 (Ariz. App. Feb. 19, 2002) (mem. decision). Thereafter, Newhall filed
petitions for post-conviction relief in 2002 and 2005, both of which were
dismissed by the trial court.

¶3            In December 2012, Newhall filed a petition for post-
conviction DNA testing pursuant to Arizona Revised Statutes (A.R.S.)
section 13-4240.1 Newhall sought DNA testing of four samples of
previously untested substances obtained from the victim's body during a
physical examination of the victim shortly after the incident. Newhall
argued one or more of these samples likely contained skin cells from the
victim’s assailant. He further argued that the science of DNA testing had
advanced sufficiently to permit identification of a person through DNA
obtained from skin cells, a capability that did not exist at the time of the
original investigation and prosecution of his case. Newhall had also
arranged to pay for the tests so the State would bear no expense.

¶4            The trial court denied Newhall’s motion. Paraphrasing the
language of A.R.S. § 13-4240(B)(1) and quoting the language of A.R.S. § 13-
4240(C)(1)(a), the court held there was no reasonable probability Newhall
“would not have been prosecuted or convicted in this matter if exculpatory
results [we]re obtained from additional DNA testing,” nor any reasonable

1 Absent material changes from the relevant date, we cite the current
version of a statute unless otherwise stated.


                                     2
                            STATE v. NEWHALL
                            Decision of the Court
probability that “[Newhall’s] guilty verdict or sentence would have been
more favorable if exculpatory results from additional DNA testing had
been available at the trial leading to the judgment of conviction.” Newhall
now seeks review. We have jurisdiction pursuant to Arizona Rule of
Criminal Procedure 32.9(c) and A.R.S. § 13-4239(C). We review the denial
of post-conviction relief for abuse of discretion. State v. Schrock, 149 Ariz.
433, 441, 719 P.2d 1049, 1057 (1986).

                                DISCUSSION

¶5              Newhall sought DNA testing pursuant to both A.R.S. § 13-
4240(B) and (C). Subsection B provides that a trial court “shall” order DNA
testing if the court finds “[a] reasonable probability exists that the petitioner
would not have been prosecuted or convicted if exculpatory results had
been obtained through [DNA] testing.” A.R.S. § 13-4240(B)(1). Subsection
C provides the trial court “may” order DNA testing if the court finds “[t]he
petitioner’s verdict or sentence would have been more favorable if the
results of [DNA] testing had been available at the trial leading to the
judgment of conviction.”2 A.R.S. § 13-4240(C)(1)(a).

¶6             The trial court abused its discretion when it failed to order
DNA testing pursuant to A.R.S. § 13-4240(B). First, DNA testing could
produce exculpatory evidence. The results of DNA testing need not be
“completely exonerating” to be exculpatory. State v. Gutierrez, 229 Ariz.
573, 578, ¶ 28, 278 P.3d 1276, 1281 (2012). Evidence is “exculpatory . . . if it
is generally favorable to the accused’s defense,” United States v. Geames, 427
F.3d 1333, 1336 (10th Cir. 2005), or if it simply “contradict[s] the
Government’s evidence against the accused.” United States v. Quinn, 728
F.3d 243, 262-63 (3rd Cir. 2013). DNA test results that identify another
individual or suggest the presence of another individual would be
favorable to Newhall's case. Alternatively, DNA test results that fail to
identify Newhall or otherwise suggest Newhall’s presence would also be
favorable to his case.

¶7           Second, there is a “reasonable probability” the jury would not
have convicted Newhall if exculpatory results had been obtained through

2 The State did not dispute below that Newhall satisfied the other factors
necessary to either require or permit DNA testing. See A.R.S. § 13-
4240(B)(2)-(3) (requiring the evidence must still exist, must be in a condition
to permit DNA testing, and must not have been previously subjected to
DNA testing in general or “subjected to the testing that is now requested
and that may resolve an issue not previously resolved by the previous
testing”); A.R.S. § 13-4240(C)(2)-(3) (same).


                                       3
                             STATE v. NEWHALL
                             Decision of the Court
DNA testing. A “reasonable probability” is defined as more than “a mere
possibility” but less than “more likely than not.” State v. Vickers, 180 Ariz.
521, 527, 885 P.2d 1086, 1092 (1994) (quoting State v. Lee, 142 Ariz. 210, 214,
689 P.2d 153, 157 (1984)). Therefore, Newhall need not establish it is “more
likely than not” that a jury would not have convicted him, but only that it
is more than a “mere possibility.” Newhall has done so.

¶8             While the State argues the strength of the victim’s
identification of Newhall as her attacker and the presence of his single,
partial latent fingerprint on the victim’s telephone would trump any
favorable results from additional DNA testing, a jury is free to credit or
discredit evidence, and no one can determine what a reasonable jury will
ultimately believe. See State v. Bronson, 204 Ariz. 321, 328, ¶ 34, 63 P.3d 1058,
1065 (App. 2003). This is especially true if DNA evidence favorable to a
defendant is offered in opposition to the State’s case. DNA evidence can be
powerful and persuasive. McDaniel v. Brown, 558 U.S. 120, 136 (2010).
Despite the strength of the other evidence, there is more than a mere
possibility that DNA evidence favorable to Newhall could persuade a jury
to find the State failed to prove Newhall’s guilt beyond a reasonable doubt.
This is not to say, however, that Newhall’s convictions are now in doubt.
See Dist. Attorney's Office for the Third Judicial Dist. v. Osborne, 557 U.S. 52, 62
(2009) (“The availability of technologies not available at trial cannot mean
that every criminal conviction, or even every criminal conviction involving
biological evidence, is suddenly in doubt.”). We find only that Newhall has
met the requirements set forth in A.R.S. § 13-4240(B).

¶9            Because the trial court abused its discretion when it failed to
order DNA testing pursuant to A.R.S. § 13-4240(B), we grant review and
relief, and remand for proceedings consistent with this memorandum
decision.3




                                       :gsh

3 Based upon our conclusion, we need not address whether there is a
reasonable probability the State would not have prosecuted Newhall if
exculpatory results had been obtained through DNA testing, or whether
the court should have ordered testing pursuant to A.R.S. § 13-4240(C).



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