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~~4-
IN THE SUPREME COURT OF THE STATE OF WASHINGTON


STATE OF WASHINGTON,                    )    No. 88336-0
                                        )
                          Respondent,   )
                                        )
v.                                      )    En Bane
                                        )
LINDSEY L. CRUMPTON,                    )
                                        )
                          Petitioner.   )
                                        )    Filed - - -AUG 2 1 2014- - - -
                                                        -----
____________ )

      FAIRHURST, J.-In 1993, petitioner Lindsey L. Crumpton was convicted of

five counts of first degree rape and one count of residential burglary. In 2011, he

petitioned the court for postconviction deoxyribonucleic acid (DNA) testing

pursuant to RCW 10.73.170. The superior court denied this motion, saying he had

not shown a '"likelihood that the DNA evidence would demonstrate his innocence

on a more probable than not basis"' as is required by RCW 10.73.170(3). Clerk's

Papers (CP) at 63 (quoting RCW 10.73.170(3)). The Court of Appeals affirmed. We

must decide the standard the court should use to decide a motion for postconviction

DNA testing and whether a court should presume DNA evidence would be favorable

to the convicted individual when determining if it is likely the evidence would prove
State v. Crumpton, No. 88336-0

his or her innocence. We hold that a court should use such a presumption. We reverse

and remand to the trial court to apply the proper standard.

      I.     FACTUAL BACKGROUND AND PROCEDURAL HISTORY

      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). The

woman was awoken at around 3: 15 a.m. and saw a man standing in her room. !d.

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

and once vaginally. !d. 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. !d.

However, she described him as a "'big black man"' who felt '"greasy"' and smelled

of cologne. !d. at 410-11 (internal quotation marks omitted) (quoting State v.

Crumpton, noted at 82 Wn. App. 1015, slip op. at 3 (1996)).

      After the fifth rape, the man poured something cold onto the woman, 1 rammed

handkerchiefs from the woman's nightstand drawer into her perineal area, and then

left. !d. at 410. Shortly afterward, she went to her neighbor's house for help. !d. at

411. At around 5:15a.m., they called the police. !d. Paramedics came and took her




       1
       A later search of her house found an open bottle of Crisco oil on the dresser. Crumpton,
172 Wn. App. at 412.
                                              2
State v. Crumpton, No. 88336-0

to the hospital, where the doctor observed bruising on her neck, tearing of her

rectum, and blood in her vagina. I d.

      A police officer stopped Crumpton at 5:23 a.m. because he matched the

description of the rapist.Jd. Crumpton was running a half a mile from the woman's

house. He was wearing soiled pants and a black leather jacket without a shirt.Jd. His

skin was wet looking. Id. He was carrying a flower-print design pillowcase or

blanket smeared with blood and matching the woman's bedding.Jd. He had a beige

phone cord, 2 costume jewelry, a cigarette case, and a number of handkerchiefs. I d.

at 411-12. The woman identified all these items as belonging to her.Id. at 412. One

of the hairs collected from the woman's mattress matched a pubic hair sample from

Crumpton.Jd. at 413.

       When he was first stopped, Crumpton claimed he was going to his mother's

house from his sister's house. I d. at 411. He said he had the sheets for his mother to

wash, the handkerchiefs because he had a cold, and the jewelry because he didn't

trust his sister with it.Jd. at 412. Later, Crumpton admitted to being in the woman's

house for approximately 40 minutes and to taking her items but denied hitting or

raping her.




       2
       Search of the woman's house revealed that one phone cord had been cut and another
completely removed. !d.
                                           3
State v. Crumpton, No. 88336-0

      Crumpton was charged with five counts of first degree rape and one count of

residential burglary. After a trial, the jury returned guilty verdicts on all counts. The

trial court imposed an exceptional sentence based on deliberate cruelty and the

particular vulnerability of the victim. Crumpton appealed, and his conviction was

affirmed. This court denied review.

      Years later, Crumpton filed a motion to allow postconviction DNA testing of

several items of evidence that contained biological material: the rectal and vaginal

swabs of the victim, the flannel sheet from the bed, white handkerchiefs collected

from the scene of the rape, and hairs that were also collected from the scene. The

trial court denied this motion. CP at 60-65. The Court of Appeals affirmed the trial

court in a 2-1 published decision. Crumpton, 172 Wn. App. 408. We granted review.

State v. Crumpton, 177 Wn.2d 1015, 306 P.3d 960 (2013).

                             II.     ISSUE PRESENTED

       On a motion for postconviction DNA testing, should a trial court presume that

DNA results would be favorable to the defendant when determining if the DNA test

would demonstrate his innocence on a more probable than not basis?

                                   III.   ANALYSIS

       We review a trial court's decision on a motion for postconviction DNA testing

for abuse of discretion. State v. Rio.fta, 166 Wn.2d 358, 370, 209 P.3d 467 (2009). A

trial court abuses its discretion if the decision rests on facts unsupported in the record


                                            4
State v. Crumpton, No. 88336-0

or was reached by applying the wrong legal standard. State v. Rafay, 167 Wn.2d 644,

655, 222 P.3d 86 (2009).

      There is no constitutional right to DNA testing. Dist. Att y 's Office v. Osborne,

557 U.S. 52, 73-74, 129 S. Ct. 2308, 174 L. Ed. 2d 38 (2009). However, as a response

to developing technology, postconviction DNA testing has been widely accepted as

a way to ensure an innocent person is not in jail. Riofta, 166 Wn.2d at 368 (noting

that the Washington statute is modeled after the federal DNA testing statute, 18

U.S.C. § 3600(a)). RCW 10.73.170 provides a mechanism under Washington law

for individuals to seek DNA testing in order to establish their innocence.

      This statute has both procedural and substantive components. The State has

conceded that Crumpton has met his procedural burden, so these requirements will

not be discussed further. 3 At issue is the substantive portion of the statute that

requires the convicted person to show "the likelihood that the DNA evidence would

demonstrate innocence on a more probable than not basis." RCW 10.73.170(3).



      3
       RCW 10.73 .170(2) lists the procedural requirements of this statute:
              The motion shall:
              (a) State that:
              (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 infonnation;
              (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.
                                               5
State v. Crumpton, No. 88336-0

       Crumpton argues that in deciding whether to grant a motion for postconviction

DNA testing, the court should presume that the DNA results would be favorable to

the defendant. The inquiry then becomes the likelihood that favorable DNA

evidence would demonstrate innocence on a more probable than not basis.

Conversely, the State rejects the idea that the court must employ this presumption.

The State argues a defendant should have to show the court that the DNA evidence

would demonstrate his innocence on a more probable than not basis in light of all

the other evidence presented at trial before a court will order a DNA test.

       While the text ofRCW 10.73.170(3) does not specifically mention a favorable

presumption, cases applying this statute and the substantive standard therein have

discussed the favorable results. In Riofta, the movant sought DNA testing of a white

hat that was worn by the perpetrator of a shooting for which he was convicted. 4 166

Wn.2d at 361. We wrote, "To determine the probability that a petitioner could

demonstrate his innocence with the aid offavorable DNA test results, courts must

consider the evidence produced at trial along with any newly discovered evidence

and the impact that an exculpatory DNA test could have in light of this evidence."


       4
         Whether to use this presumption was not directly at issue in Riofla. The issue with the
substantive section of the statute was whether the DNA evidence should be viewed in conjunction
with the rest of the evidence from the trial when deciding whether the results would demonstrate
the convicted party's im1ocence. Riofla, 166 Wn.2d at 367-68. The court li;eld that a motion for
DNA testing is not decided in a vacuum; the entirety of the case against the convicted individual
must be taken into account. Id. 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.").
                                                 6
State v. Crumpton, No. 88336-0

I d. at 369 (emphasis added). The court then applied the facts of the case to this

standard by looking at each of the two possible favorable outcomes for Riofta. Id. at

370. Assuming each were true, the court found that neither result would make his

guilt or innocence more clear. 5 I d. at 370-71. Because neither favorable result made

Riofta's innocence more or less likely, the court denied the motion for testing. Id.

The Riofta court recognized that a court should assess the impact of an exculpatory

DNA test in light of all the evidence from trial when deciding a motion for

postconviction DNA. Id. at 369.

       A few years later, this court heard State v. Thompson, which involved the

brutal rape and assault of a woman in a hotel room. 173 Wn.2d 865, 867-68, 271

P.3d 204 (2009). Thompson was convicted of first degree rape and later moved for

postconviction DNA testing. Id. at 867, 869. Like the court in Riofta, the Thompson

court presumed the evidence would be favorable to the convicted party to decide the

motion. Id. at 875. The court held that if the DNA evidence excluded Thompson as

the single rapist, it is more probable than not that he was innocent. Accordingly, the

court affirmed, remanding for testing. I d. ("If DNA test results should conclusively



       5
          The two possible favorable outcomes for Riofla were "the absence of his DNA and the
presence of another person's DNA." 166 Wn.2d at 370. If either of those were results of the DNA
test, it would not make it any more likely Riofta was innocent. If his DNA was not on the hat, it
would not prove he was not the shooter since the hat belonged to the owner of the stolen vehicle
and the perpetrator might have worn it only during the shooting itself. !d. Similarly, the presence
of a third person's DNA is unavailing since that person could have worn the hat at some other time
after the vehicle was stolen, not necessarily at the time of the shooting. !d. at 370-71.
                                                7
State v. Crumpton, No. 88336-0

exclude Thompson as the source of the collected semen, it is more probable than not

that his innocence would be established.").

      The Court of Appeals decided consistently with these cases in State v. Gray,

151 Wn. App. 762,215 P.3d 961 (2009). Gray involved a single perpetrator who

attacked a group of teenagers as they were camping and raped one of the girls.Jd. at

766. Later, Gray filed for postconviction DNA testing of various items from the

scene. The court used the standard from Riofta and analyzed the possible inferences

from favorable DNA results. Id. at 774. The court concluded that if some of the

evidence Gray requested be tested came back as not his DNA, it would be material

to his innocence and therefore the motion for postconviction testing should be

granted. !d. If only one person committed the crime, then the presence of other DNA

would suggest innocence on a more probable than not basis. !d. at 77 4.

      Case law supports using a favorable presumption when deciding whether to

grant a motion for postconviction 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 actually exculpates the individual and if the results

could be used to support a motion for a new trial.


                                            8
State v. Crumpton, No. 88336-0

      The present case is factually analogous to Thompson and Gray, both of which

involved a single rapist. Each case involved weak identification evidence but

otherwise had very strong physical and circumstantial evidence tying the convicted

individual to the crime. Because 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. These courts found that even in the context of all the strong evidence of guilt,

DNA testing should be granted because if the DNA did not match, the convicted

individual was most likely innocent. This is true in this case as well. Any DNA

evidence left on the items Crumpton petitioned to test would almost certainly have

been left by the perpetrator of the rape. Exculpatory results of DNA testing in this

case would directly affect the likelihood Crumpton was innocent. Using this

presumption Cn1mpton's motion for testing must be granted.

      In addition to the fact that our case law supports this presumption, we believe

it is the appropriate analytical method for achieving the most just resolution to these

motions. We reaffirm Riofta that the substantive requirement in the statute is meant

to be "onerous." Riofta, 166 Wn.2d at 367 ("In contrast to the statute's lenient

procedural requirements, its substantive standard is onerous."). Testing should be

limited to situations where there is a credible showing that it could benefit a possibly

innocent individual, id. at 369; see Thompson, 173 Wn.2d at 884-85 (Madsen, C.J.,

dissenting), not only because that is the goal of the statute but also to avoid


                                           9
State v. Crumpton, No. 88336-0

overburdening labs or wasting state resources without good reason. But at the same

time, this technological improvement should be made available to convicted

individuals who might actually be innocent. Many innocent individuals have been

exonerated through postconviction DNA tests, including some who had

overwhelming evidence indicating guilt. And there is no direct evidence showing

that labs have in fact been overburdened by an onslaught of postconviction testing. 6

Thus, to balance these interests, the standard must be onerous but reasonable enough

to let legitimate claims survive. Using a favorable presumption within the context of

the statutory language accomplishes this balance.

       In affirming this presumption, we recognize that in light of the overwhelming

physical and circumstantial evidence against Crumpton some might find it difficult

to grant him this postconviction DNA testing. But, there will always be strong

evidence against a convicted individual since they were convicted of the crime

beyond a reasonable doubt. Gray, 151 Wn. App. at 773 ("[W]hether the evidence in

the original trial was strong or weak is only part of the question."). The court should

not focus on the weight or sufficiency of evidence presented at trial to decide a

motion for postconviction DNA testing. It must focus on the likelihood that DNA

evidence could demonstrate the individual's innocence in spite of the multitude of


       6
       The Innocence Network points out that "[a]s oflast year, only three of the state crime lab's
967 backlogged DNA cases were the result of an RCW 10.73.170 petition." Amicus Br. of
Innocence Network at 7-8.
                                                10
State v. Crumpton, No. 88336-0

other evidence against them. 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.

       At the same time, a trial court should not ignore the evidence from trial. It

must look at DNA evidence in the context of all the evidence against the individual

when deciding the motion. 7 Riofta, 166 Wn.2d at 368. It is only within the context

of the other evidence that the court can determine whether DNA evidence might

demonstrate innocence. A trial court must "look to see how the evidence stands up

in the presence of a favorable DNA test." Crumpton, 172 Wn. App at 422

(Worswick, C.J., dissenting). While a court should not retry a case to decide this

motion, the evidence at trial matters and should be taken into account. Thompson,

173 Wn.2d at 873-74.

       Imposing a favorable presumption when deciding a motion for postconviction

DNA testing affects only whether the DNA will be tested; it does not affect whether

the individual will be granted a new trial. Only if the DNA evidence belongs to

another individual could there be significant evidence to support a motion for a new

trial. But, if the DNA evidence comes back as that of the convicted individual, it

reinforces the conviction. And, if the DNA evidence comes back inconclusive, it


       7
        As long as it is used in the context of the proper standard, a court may even consider why
the defendant did not request DNA testing in the original trial when deciding a motion for
postconviction testing. Riofta, 166 Wn.2d at 366n.l, 368 n.3.
                                                11
State v. Crumpton, No. 88336-0

likely does nothing. That alone will be insufficient to satisfy the heavy burden

needed to grant a motion for a new trial. Obtaining a DNA test is simply the first

step on the journey for a new trial.

      Employing this presumption will not result in courts granting every motion

for postconviction DNA testing, as Riofta demonstrates. See Riofta, 166 Wn.2d at

3 73. A defendant must still show that the DNA results could substantiate his or her

innocence. While we do not create an automatic right to postconviction DNA testing

for single rapist cases, we recognize DNA results in such cases is logically very

persuasive. If there is only one rapist, DNA evidence that does not match the

convicted individual is extremely persuasive of that person's innocence. Crumpton,

172 Wn. App. at 424-25 (Worswick, C.J., dissenting). However, the defendant must

show the link between the evidence and the possibility it would show innocence just

like in all other cases before the court on such a motion.

       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.




                                          12
State v. Crumpton, No. 88336-0

                               IV.    CONCLUSION

      We reverse the Court of Appeals and hold that the standard for postconviction

DNA testing was properly articulated in Riofta to include the imposition of a

presumption in favor of the convicted individual. A trial court must look to whether

the DNA results, in conjunction with the other evidence from the trial, demonstrate

the individual's innocence on a more probable than not basis, assuming the DNA

results would be favorable to that convicted individual. The trial court did not use

the proper standard, and so it abused its discretion. We reverse and remand to the

trial court to apply the proper standard to the motion.




                                          13
State v. Crumpton, No. 88336-0




WE CONCUR:




                                      Jin.lmlftWrf,
                                      'D ~1,~/ r. r ·~
                                              ..   J



                                           0




                                 14
State v. Crumpton (Lindsey L.)




                                   No. 88336-0




      STEPHENS, J. (dissenting)-Lindsey Crumpton was convicted of five

counts of first degree rape and one count of residential burglary in 1993.

Crumpton petitioned the court in 2001 for postconviction deoxyribonucleic acid

(DNA) testing on the victim's rape kit and various items recovered from the scene.

The majority holds that a trial court should presume favorable test results in

deciding whether to grant a motion for postconviction DNA testing under RCW

10.73.170. Majority at 8. However, the statute contains no such presumption. The

substantive portion of RCW 10.73.170 provides that a court shall grant a

petitioner's motion for postconviction DNA testing if, in addition to satisfying the

procedural requirements, "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).
      As applied to a single perpetrator rape case, the absence of a favorable

presumption in the statute is critical. The proper focus of the statutory test is

whether the petitioner has shown his innocence on a more probable than not basis,

and a favorable presumption in a single perpetrator rape case essentially eliminates
State v. Crumpton (Lindsey L.), 88336-0 (Stephens, J. Dissent)




that onerous standard. The legislative history behind Washington's postconviction

DNA testing statute does not support applying such a presumption. Further, the

cases upon which the majority relies are distinguishable from the case before us.

For these reasons, I respectfully dissent.
                                      ANALYSIS

         A Favorable Presumption Does Not Further the Legislative Intent
                              Behind the Statute

       While Washington's postconviction DNA testing statute was promulgated in

2000, the current version of the statute reflects amendments proposed in 2004 and

enacted in 2005. As it pertains to the substantive portion of the statute, "the

substitute bill changes the standard for granting a motion for post-conviction DNA

testing to a more probable than not likelihood that the DNA evidence would

demonstrate innocence." H.B. REP. on H.B. 2872, at 3, 58th Leg., Reg. Sess.

(Wash. 2004), available at http://apps.leg.wa.gov/documents/billdocs/2003-04/

Pdf/Bill%20Reports/House/2872.HBR.pdf. In doing so, the legislature sought to

balance society's interest in justice with its interest in finality. It recognized the

need to "ensure that a process remains in place for cases where DNA tests could

provide evidence of a person's innocence" and the countervailing need for finality
in matters that have already been properly decided by a jury. !d. The balance it

struck places a high burden on obtaining postconviction DNA testing, a standard

we have described as "onerous." State v. Riofta, 166 Wn.2d 358, 367, 209 P.3d

467 (2009).      As the legislature explained, "[b ]y keeping the high 'proof of



                                             -2-
State v. Crumpton (Lindsey L.), 88336-0 (Stephens, J. Dissent)




innocence' standard in the bill, the number of requests will remain low and testing

will only be ordered in cases where there is a credible showing that it likely could

benefit an innocent person." H.B. REP. on H.B. 2872, at 3. Thus, it is evident that

the legislature intended to create an avenue, not a freeway, for postconviction

DNA testing.

       This interpretation is consistent with the driving force behind the statute's

reboot in 2005. Under the Innocence Protection Act, 18 U.S.C. § 3600, federal

funding was available "to help states clean out the backlog of postconviction DNA

testing and evidence." H.B. REP. on H.B. 1014, at 3, 59th Leg., Reg. Sess. (Wash.

2005),     available    at   http://apps.leg.wa.gov/documents/billdocs/2005-06/Pdf/

Bill%20Reports/House/1014.HBR.pdf. Our legislature acknowledged the need to

conform the Washington statute to this newly enacted legislation, and the bill

report to H.B. 1014 proclaimed that the Washington bill met the federal standard.

Id. The majority recognizes this. Majority at 5.

         Importantly, the federal postconviction DNA testing statute, 18 U.S.C. §

3600(a), provides no favorable presumption. "Under the federal statute, an inmate

can obtain postconviction DNA testing by showing, inter alia, that the testing 'may

produce new material evidence' that would 'support [a] theory' of innocence and

'raise a reasonable probability that the applicant did not commit the offense."'

Riofta, 166 Wn.2d at 368 (alteration in original) (quoting 18 U.S.C. § 3600(a)(6),

(8)(A), (B)). As is the case with the Washington statute, the burden under the

federal statute is heavy. A petitioner who has already been convicted does not


                                           -3-
State v. Crumpton (Lindsey L.), 88336-0 (Stephens, J. Dissent)




enjoy the same liberties as existed prior to trial; the "'presumption of innocence

disappears."' Dist. Att 'y 's Office v. Osborne, 557 U.S. 52, 68-69, 129 S. Ct. 2308,

174 L. Ed. 2d 38 (2009) (quoting Herrera v. Collins, 506 U.S. 390, 399, 113 S. Ct.

853, 122 L. Ed. 2d 203 (1993)). The federal statute similarly strikes a balance

between the "unique power of DNA testing" to exonerate wrongly convicted

individuals and "important governmental interests," such as finality, integrity, and

minimalizing costs.     Id. at 84-85 (Alito, J., concurring).    In order to obtain

postconviction DNA testing, the petitioner must present a theory of innocence and

not simply contend, "'I didn't do it"; "[s]uch a bare allegation hardly meets the

rigorous standard" set forth in 18 U.S.C. § 3600(a)(6). United States v. Boose, 498

F. Supp. 2d 887, 892 (N.D. Miss. 2007).

       Logically, if the presumption of innocence disappears once an individual has

been convicted after a fair trial, the concern for finality weighs heavily against

applying a presumption that favors the defendant. The majority acknowledges that

a favorable presumption essentially assures postconviction DNA testing in a single

perpetrator rape case. Majority at 12 ("If there is only one rapist, DNA evidence

that does not match the convicted individual is extremely persuasive of that

person's innocence."). What then becomes of the balance the legislature struck in

RCW 10.73.170?        The legislature certainly could have enacted a law requiring

postconviction DNA testing in every case that involves physical evidence that had

not been tested at trial. Instead it passed a less encompassing statute, opening the

door to such testing only when the petitioner shows "the likelihood that the DNA


                                           -4-
State v. Crumpton (Lindsey L.), 88336-0 (Stephens, J. Dissent)




evidence would demonstrate innocence on a more probable than not basis." RCW

10.73.170(3). And, it vested discretion in the trial court to consider the evidence at

trial in conjunction with any new evidence and the possibility of favorable DNA

results. As the Court of Appeals recognized, conclusively applying a favorable

presumption practically eliminates the trial court's discretion in a single perpetrator

rape case. State v. Crumpton, 172 Wn. App. 408, 419 n.9, 421, 289 P.3d 766

(2012).

       The majority's reading of RCW 10.73.170 seems to reflect more the

questions a trial court will naturally ponder than the requirements of the statute. It

stands to reason that a trial court will ask, "If this test result were to show none of

the petitioner's DNA, is he likely innocent?" But, the court must also consider the

two other possibilities-results that are inconclusive or results that confirm the

petitioner's guilt. The cognitive process a court will engage in does not obviate the

statutory burden on a petitioner to prove the likelihood that new DNA evidence

will demonstrate innocence on a more probable than not basis.

       As mentioned above, a mere "'I didn't do it"' assertion cannot satisfy the

onerous standard for postconviction DNA testing. Boose, 498 F. Supp. 2d at 892.

Here, Crumpton does not advance any new theory of defense. Rather, he centers

his motion on the contention that because this is a single perpetrator rape case, his

innocence is established if his DNA is not found on the rape kit. Clerk's Papers at

28, 34, 35. While the majority proclaims that "the defendant must show the link

between the evidence and the possibility it would show innocence just like in all


                                           -5-
State v. Crumpton (Lindsey L.), 88336-0 (Stephens, J. Dissent)




other cases before the court on such a motion," majority at 12, Crumpton has not
shown any link between DNA testing and his innocence. His petition rests on

nothing more than the bare fact that this is a single perpetrator rape case. The
effect of the majority's presumption is to satisfy Crumpton's evidentiary burden
when the evidence itself does not. The majority's imposition of a presumption
shifts the focus of the statute away from whether the petitioner has shown
innocence on a more probable than not basis.            The effect, at least in single
perpetrator rape cases, is to create a revolving door for individuals already

convicted beyond a reasonable doubt to postpone finality and burden the system
with requests for DNA testing solely on the ground that new DNA technology now
exists.
                  The Cases Cited by the Majority Are Distinguishable

          While the majority believes its holding is dictated by Riofta, 166 Wn.2d 358,
and State v. Thompson, 173 Wn.2d 865, 271 P.3d 204 (2012), those cases are
distinguishable. In Riofta, we were concerned with the Court of Appeals holding
that a petitioner must "demonstrate his innocence on the basis of the test results
alone." 166 Wn.2d at 367. At issue was whether RCW 10.73.170 allows a court to

consider DNA evidence in conjunction with the evidence presented at trial to
determine if the petitioner has established "innocen[ce] on a more probable than
not basis." !d. at 367-68. 1 In resolving that issue, we described the evidence as

          1
         The Riofta dissent further confirms that a favorable presumption was not at issue
in that court's discussion. In his concurrence in dissent, Justice Chambers proposed a
revised version of the statute to the legislature:

                                            -6-
State v. Crumpton (Lindsey L.), 88336-0 (Stephens, J. Dissent)




"favorable DNA test results." Id. at 369. Contrary to the majority's belief, we

never considered whether a favorable presumption should be read into the

language of RCW 10.73.170(3), nor does our analysis imply that it should.

Nothing in Riofta supports a reading of the statute that would allow the petitioner

in a case such as this to rest on the presumption of favorable test results alone.

       Further, the majority contends that the present case is factually analogous to

Thompson, where the court "found that even in the context of all the strong

evidence of guilt, DNA testing should be granted because if the DNA did not

match, the convicted individual was most likely innocent." Majority at 9. 2 I

disagree.

       In Thompson, we overturned the trial court's dismissal of the petitioner's

motion for postconviction DNA testing, holding that "[i]f DNA test results should

conclusively exclude Thompson as the source of the collected semen, it is more

probable than not that his innocence would be established, particularly in light of

the weakness of the victim's identification of Thompson as her attacker." 173

Wn.2d at 875 (emphasis added). Although police officers witnessed Thompson

       [I]f the legislature would like to clarify its meaning in the wake of this
       opinion it might wish to amend RCW 10.73.170(3) to read:
               "The court shall grant a motion requesting DNA testing under this
               section if . . . the convicted person has shown tlle any reasonable
               likelihood that the DNA evidence would demonstrate innocence eH:-a
               more probable than not basis."
Riofta, 166 Wn.2d at 379 n.7.
       2
         The majority similarly contends that the present case is factually analogous to
State v. Gray, 151 Wn. App. 762, 215 P.3d 961 (2009). While I concede the cases are
factually analogous, Gray was a Court of Appeals case that was decided upon the same
misreading of Riofta that I respectfully take issue with above. Therefore, I find the Gray
decision faulty for the same reasons I discuss here.

                                           -7-
State v. Crumpton (Lindsey L.), 88336-0 (Stephens, J. Dissent)




pushing the victim out of the hotel room where the rape allegedly occurred, this
evidence of his guilt was undermined by the victim's inconsistent testimony and
the lack of corroborating physical evidence. The victim testified that she lost
consciousness numerous times, "did not remember what occurred between the final
time she lost consciousness and her awakening at the hospital," had "no memory of
talking to or seeing anyone at the hotel" at which the rape occurred, and did not
remember speaking to the police at the hospital. Id. at 867-68. The doctor who
examined the victim testified that "he would expect the rapist to have sustained
injuries to his hands," yet Thompson's fists showed no "signs that he administered

a beating on the night of his arrest." Id. at 868-69. And, the victim "indicated to
an investigator for the defendant that the rapist might have had blonde hair, did not

have facial hair, and was between 5'7" and 5'8" tall .... Thompson has black hair,
is 6'3" tall, and had a moustache at the time of his arrest." Id. Given the victim's

weak identification, there was a substantial likelihood that DNA evidence would
demonstrate the defendant's innocence on a more probable than not basis.
       The facts before us are not nearly as precarious as those in Thompson. Here,
Crumpton admitted to being in the victim's house. He was found running a half-
mile away from the victim's house within minutes after the incident, carrying a
number of the victim's possessions, including a blood-stained blanket or
pillowcase matching the victim's bedding. 172 Wn. App. at 411-12. Further, the

victim's description of her attacker was consistent with Crumpton's physical
features. Id. at 411. In light of the strong evidence of Crumpton's guilt, RCW


                                           -8-
State v. Crumpton (Lindsey L.), 88336-0 (Stephens, J. Dissent)




10.73.170 requires Crumpton to establish a theory of innocence in order for his
motion for postconviction DNA testing to be granted.

                                    CONCLUSION
       Crumpton's motion for postconviction DNA testing should be denied
because he has not met his statutory burden (i.e., showing that DNA evidence
would demonstrate his innocence on a more probable than not basis).              The
legislative intent behind Washington's postconviction DNA testing statute does not
support reading a favorable presumption into the language of RCW 10.73.170.
Nor does our precedent require this result.

       The majority's presumption will require DNA testing in every single
perpetrator rape case in which a convicted defendant asserts his or her innocence
and shows DNA technology has improved.             Courts will likely see individuals
convicted of crimes committed 20-plus years ago petitioning for postconviction
DNA testing because DNA testing was not available at the time of their original
trial or was less reliable than it is now.        And, 20 years hence, a favorable
presumption will similarly require new DNA testing because the accuracy of the
testing will certainly improve. We should leave the focus of the statute where it
was intended to be. Rather than reading a favorable presumption into the language
of RCW 10.73.170, we should require the petitioner to show what the statute's
plain language demands-a "likelihood that the DNA evidence would demonstrate

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




                                           -9-
State v. Crumpton, No. 88336-0




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