                          NOT DESIGNATED FOR PUBLICATION

                                             No. 121,709

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                         STATE OF KANSAS,
                                             Appellee,

                                                      v.

                                            JOHN R. PRINE,
                                              Appellant.


                                   MEMORANDUM OPINION

       Appeal from Reno District Court; TRISH ROSE, judge. Opinion filed July 24, 2020. Affirmed.


       Kristen B. Patty, of Wichita, for appellant.


       Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.


Before ARNOLD-BURGER, C.J., STANDRIDGE and POWELL, JJ.


       PER CURIAM: John R. Prine was convicted after a second jury trial of rape,
aggravated criminal sodomy, and aggravated indecent liberties with a child. After his
convictions were upheld on direct appeal, Prine sought postconviction DNA testing of the
victim's clothing. The testing failed to produce any definitive results and only showed the
presence of an unknown male's DNA. In light of these results, and after considering the
evidence presented at trial, the district court determined the DNA test results were
inconclusive and denied Prine's request for a hearing. Prine now appeals that denial. After
a careful review of the record, we find no abuse of discretion and affirm the district court.




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                          FACTUAL AND PROCEDURAL BACKGROUND


       This is Prine's third sojourn to the appellate courts. See State v. Prine, 287 Kan.
713, 200 P.3d 1 (2009) (Prine I); State v. Prine, 297 Kan. 460, 303 P.3d 662 (2013)
(Prine II). In 2004, Prine was convicted of rape, aggravated criminal sodomy, and
aggravated indecent liberties with a child for acts he committed against A.C. but received
a new trial after the Supreme Court held the district court erred by admitting evidence of
Prine's prior sexual abuse of his daughter and his younger half-sister. Prine I, 287 Kan. at
720, 739-40.


       At the second trial, the following facts were established:


       "Crimes and Investigation


               "J.C.'s babysitter fell through. J.C.'s then-fiancé (now husband), Anthony, had a
       best friend: defendant John Prine. J.C. contacted Prine, who agreed to act as a backup
       babysitter. She left Prine with her two babies and her 6-year-old stepdaughter, A.M.C.
       Anthony, A.M.C.'s father, picked her up after lunch and took her to kindergarten. J.C.'s
       mother, A.M.C.'s future grandmother, picked A.M.C. up from school to take her back
       home, where Prine was still babysitting. On the way home, A.M.C. told her grandmother
       that she did not want to go home because Prine had touched her. The grandmother
       relayed this information to J.C., who immediately came home. J.C. told Prine he was free
       to go, which he did after taking a shower. Then J.C. and Anthony took A.M.C. to the
       doctor for a medical examination. The examination revealed no injury, but J.C. and
       Anthony filed a police report, as the doctor suggested.


               "Detective John Taylor interviewed A.M.C. at the police station. The interview
       was videotaped. They talked about truth and lies, and about good and bad touching.
       A.M.C. told Taylor that 'John' had given her 'bad touches.' She told Taylor that Prine had
       touched her on her 'front'—which she identified with 'where she went pee from'—with
       his fingers, his tongue, and his tummy. She demonstrated how he licked his two fingers




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and touched her front, and she described how he 'would pull my front open and lick
inside.'


           "Taylor also interviewed Prine, who denied ever inappropriately touching
A.M.C. Prine became annoyed and left the police station, but he returned later to make a
report concerning illegal activity at a grocery warehouse where Anthony worked.
Specifically, he reported that Anthony was stealing from the warehouse.


           "Several weeks later, Taylor interviewed Prine again. At this time, Prine offered
information about unintentional conduct that might have formed the basis for A.M.C.'s
allegations. One time, he said, A.M.C. had a swimsuit on and slid down his arm and the
side of her swimsuit moved, exposing her vagina; on other occasions, Prine had
roughhoused with A.M.C. and his hand might have slipped; and one time A.M.C. got
peanut butter on her face, and Prine had licked his thumb and wiped it off. Prine also
suggested that A.M.C.'s father might have been the one who molested her.


           "Between the time that A.M.C. made her initial allegations about Prine and the
time that she was interviewed, J.C. called T.M. and informed her about A.M.C.'s
accusations. T.M. was Prine's ex-wife and had two children with him. She and defendant
had been involved in a bitter custody dispute. T.M.'s daughter, S.M., had previously
made allegations that Prine molested her. Taylor interviewed S.M. The interview was
recorded. At the time of her interview, S.M. was 9 years old. She stated that defendant—
her father—had sex with her when she was little. When she was 4 or 5 years old, he
would place her on top of his bare body and she would be naked from the waist down and
she could feel his penis on her vagina.


           "Taylor also interviewed Prine's younger sister, J.S., who had previously reported
being molested by defendant. At the time of her interview, J.S. was 27 years old. She
indicated that, from the time she was about 4 years old until she was 10 or 11, defendant
sexually abused her. He would lick two fingers and touch her vagina; touch his penis to
her vagina; put his mouth and lips on her vagina; and/or wipe saliva on her vagina. She
also described him forcing her to have oral sex with him by placing his penis in her
mouth. She stated that two of her brothers had, at least on one occasion, witnessed this




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abuse. When J.S. was 15 years old, she filed a police report in her hometown in Montana,
detailing Prine's sexual abuse of her.


           ....


"Retrial


           "At Prine's August 2009 retrial, A.M.C. again testified. She told the jury that
Prine touched her 'private,' on the inside and the outside, and with his fingers, his tongue,
and his stomach. She also said that he would lick his two fingers and touch her private
parts.


           "Steve Edwards, a clinical social worker who had performed a sexual abuse
evaluation on A.M.C., testified that he interviewed her about good touching and bad
touching, and about body parts. She told Edwards that 'John,' her dad's friend, was 'doing
it to her,' and that it happened more than one or two times and in 'lots of places' in her
house. A.M.C. told Edwards that Prine had touched her front part with his fingers, his
tongue, and his tummy.


           "In addition, on retrial, on the State's motion and over defendant's continuing
objection, the district judge allowed S.M. and J.S. to testify about Prine's uncharged
abuse of them. The judge apparently relied upon the freshly amended K.S.A. 60–455, but
the record before us contains neither a written ruling on the State's motion nor a transcript
of a proceeding in which the motion was heard and granted. The State's motion to admit
the evidence had argued it was admissible under the newly amended statute because
subsection (d) required it to be only 'relevant and probative,' not 'strikingly similar'; and
the evidence was relevant and probative to prove intent, lack of mistake or accident,
and/or plan.


           "S.M., 14 at the time of retrial, testified that Prine would 'tak[e] me into the
bedroom and tak[e] his clothes off, tak[e] mine off, and then [sit] me on the bed and then
hav[e] sex, basically.' Edwards, the social worker, testified that he had counseled S.M.
and around February 2003 performed a sexual abuse evaluation on her. S.M. had told him
that 'John,' who was her biological father, would force her to come into a bedroom, would



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put honey on his private part, and would force her to 'get on his private.' When S.M.
testified during the retrial, she said that she remembered telling Edwards about honey but
she did not remember 'where it [fit] in.'


         "S.M.'s mother testified about how she learned that S.M. had been molested, and
how it was that J.C. eventually contacted her.


         "J.S. testified that from about the time she was 4 years old until she was about 10,
Prine, who was her half-brother, would sexually abuse her. He would force her to
perform oral sex on him; he would perform oral sex on her; he would lick his fingers and
touch her between the legs; and he would rub his penis between her legs. She testified
that later, when she was 15, she made a report about this abuse to the police in Montana
where she lived. She testified that two of her brothers had witnessed at least one incident.


         "J.S.'s half-brother, M.S., testified that in 1983, when he was about 12 years old
and J.S. was about 6, he remembered looking through a bedroom door and seeing her
performing oral sex on defendant.


         "N.P., the other brother who had allegedly witnessed the 1983 incident, testified
for the defense. He denied witnessing Prine abuse J.S. and said M.S. had told him that no
abuse happened.


         "Prine also testified during his retrial. He described his family relationships and
his friendship with Anthony. He testified about his relationship with J.C., and how she
began making advances toward him, which he rebuffed. He testified about the events of
December 11, 2003, when he babysat J.C.'s and Anthony's children, and he denied
licking or inserting his fingers into A.M.C.'s vagina. He testified about having offered
possible explanations to the police about 'where [such] an idea could end up coming
from'; again, a swimsuit malfunction, roughhousing, and a 'spit bath.' He testified that,
after these allegations arose, he reported that Anthony was stealing from the warehouse
where he worked, and that he did so because he was angry. He denied suggesting that
Anthony had molested A.M.C. He also denied sexually molesting either his daughter,
S.M., or his half-sister, J.S.




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                 "The jury was instructed that it could consider evidence of uncharged sexual
       offenses 'solely for the purpose of proving John Prine's intent, plan, absence of mistake or
       accident.' Prine did not object to the language of this instruction. Prine was again
       convicted, and he was sentenced to 387 months' imprisonment." Prine II, 297 Kan. at
       463-67.


       Prine appealed, and his appeal was transferred to the Kansas Supreme Court. This
time, Prine's convictions were affirmed. 297 Kan. at 480-81.


       On January 17, 2014, Prine filed a pro se motion for postconviction DNA testing
of the victim's clothing. Prine was appointed counsel, who filed two additional petitions
for DNA testing on Prine's behalf. The district court ordered A.C.'s jeans and underwear
be tested. The initial results were negative for semen, but since Prine's convictions were
for digitally penetrating and performing oral sex on A.C., semen was not expected to be
present. The district court then ordered the clothes be retested for any DNA evidence.


       The district court held a hearing on the DNA test results on May 24, 2019. At the
hearing, the State read into the record the results of the DNA testing:


                 "The DNA testing established the following: No DNA profile was obtained from
       the swabs from the outside of the victim's jeans and swabs from the outside of her
       underwear. Therefore, no comparison could be made from these items. Partial DNA
       profile was made from the swabs of the inside of her jeans. This partial DNA profile
       contained an insufficient genetic information for comparison. Therefore, no conclusions
       can be made from this item. A partial mixed DNA profile was obtained from the swabs
       from inside of the victim's underwear. The partial mixed DNA profile contained
       insufficient genetic information for comparison. Therefore, no conclusions could be made
       regarding the item. A DNA profile was obtained from the swabs from John Prine and also
       the swabs from the victim. No male DNA haplotype, haplotype, H-A-P-L-O-T-Y-P-E . . .
       [w]as obtained from the swabs on the outside of the jeans, therefore, no comparison could
       be made to those items. A partial male DNA haplotype was obtained from swabs from



                                                    6
       the outside of the underwear and the swabs from the inside of the underwear. So there
       was some type of a male DNA component on the outside and inside, but these partial
       haplotypes contained insufficient genetic information for comparison, therefore, no
       conclusion could be reached regarding those items."


       The district court found the DNA evidence was inconclusive under K.S.A. 21-
2512(f)(3) and denied Prine's request for an evidentiary hearing because the results did
not create a substantial question of innocence.


       Prine timely appeals.


              DID THE DISTRICT COURT ABUSE ITS DISCRETION BY DENYING
                               PRINE AN EVIDENTIARY HEARING?


       On appeal, Prine argues the district court should have granted him an evidentiary
hearing to determine if a substantial question of his innocence existed because Prine's
DNA should have been obtained from the swabs from A.C.'s underwear and its absence
bolsters his claim of innocence. The State responds that the absence or presence of Prine's
DNA proves nothing, noting the jury found Prine guilty while knowing the State did not
test A.C.'s clothes for DNA evidence. The State also suggests the presence of
unidentifiable male DNA could have strengthened the State's case because it provided
some proof a male had contact with A.C.'s underwear.


Standard of Review


       We review a district court's decision whether to grant an evidentiary hearing under
K.S.A. 2019 Supp. 21-2512 for abuse of discretion. State v. LaPointe, 309 Kan. 299, 306,
434 P.3d 850 (2019). Abuse of discretion exists when the district court's action (1) is one
where no reasonable person would take the view adopted by the district court, (2) is



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based on an error of law, or (3) is based on an error of fact. State v. Woodring, 309 Kan.
379, 380, 435 P.3d 54 (2019). The party asserting an abuse of discretion exists bears the
burden of proving it. See State v. Thomas, 307 Kan. 733, 739, 415 P.3d 430 (2018).
When evaluating the evidence, we do "not reweigh evidence or assess witness
credibility." Woodring, 309 Kan. at 380.


Analysis


       The DNA results contained a partial DNA profile with insufficient genetic
information for comparison. But the test did determine the DNA profiles from the swabs
on the outside and on the inside of A.C.'s underwear contained a partial male DNA
haplotype. Because the DNA results revealed male DNA haplotype—but were not
sufficient to determine whose DNA it was—the district court found the DNA test results
were inconclusive and denied Prine's request for a hearing.


       K.S.A. 2019 Supp. 21-2512(f) sets forth the procedures a district court should take
depending on whether the DNA testing results are unfavorable, favorable, or
inconclusive. If the test results are inconclusive,


       "the court may order a hearing to determine whether there is a substantial question of
       innocence. If the petitioner proves by a preponderance of the evidence that there is a
       substantial question of innocence, the court shall proceed as provided in subsection
       (f)(2)." K.S.A. 2019 Supp. 21-2512(f)(3).


       The district court has discretion in ordering a hearing when DNA test results are
inconclusive. If the district court does order a hearing, it must determine whether a
substantial question of innocence exists. In such a hearing, the defendant has the burden
to prove "'a substantial question of innocence'" by a preponderance of the evidence.
Haddock v. State, 282 Kan. 475, 499, 146 P.3d 187 (2006). A preponderance of the



                                                    8
evidence means the evidence shows "'"a fact is more probably true than not true."'"
Nauheim v. City of Topeka, 309 Kan. 145, 152, 432 P.3d 647 (2019).


       Although Prine argued before the district court that the results of the DNA testing
were favorable, he does not take issue with the district court's determination before us.
Instead, Prine alleges the district court abused its discretion because it did not order an
evidentiary hearing to determine whether a substantial question of his innocence existed.
Prine does not allege how the district court abused its discretion, nor does he allege the
district court committed an error of fact. Because we see no legal error on the part of the
district court as it had the discretion to order a hearing under K.S.A. 2019 Supp. 21-
2512(f)(3), Prine has the difficult task of convincing us that no reasonable person would
agree with the district court's decision not to hold an evidentiary hearing.


       The jury convicted Prine without DNA evidence. Taylor testified the police
collected A.C.'s clothes but did not test for DNA because it was unlikely to be helpful
since the police expected Prine's DNA to be on A.C. from him babysitting her. Taylor
admitted no one tested for any DNA on A.C.'s underwear. Defense counsel raised this
issue before the jury in both his opening and closing statements. Despite the lack of DNA
evidence, the jury convicted Prine on all three counts.


       It is unlikely the DNA test results could raise a substantial question of Prine's
innocence. Prine's defense centered on asserting he never had any sexual contact with
A.C. He testified he did not commit any sexual acts on A.C. and rejected the allegations
of L.S. and S.M. that he sexually abused them. When testifying, Prine admitted he told
the police about incidents when he touched A.C.'s vagina or licked his finger and touched
her face. He offered these events as innocent explanations for A.C.'s claims.


       The DNA test results neither truly help nor hurt Prine's case. On one hand, Prine
could have used this evidence to argue, as he does here, that if he had performed oral sex


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on A.C. or had digital contact with her vagina, his DNA should have been present. The
lack of DNA evidence, he claims, shows he was not guilty. On the other hand, the State
could have argued the evidence shows some male touched her underwear, and A.C.'s
recounting said that man was Prine. Additionally, an argument could have been made
suggesting the male DNA profile came from the doctor touching her underwear when he
performed a sexual assault examination on A.C. In short, the DNA test results likely
would not have added much weight to the trial. The jury listened to the testimony of A.C.
and several other witnesses. It also listened to Prine's testimony. In the end, it determined
Prine was guilty. Inconclusive evidence of unknown male DNA on the outside and inside
of A.C.'s underwear was unlikely to change the jury's mind.


       The DNA test results do not raise a substantial question of Prine's innocence, and
the district court did not abuse its discretion in refusing to conduct an evidentiary hearing.


       Affirmed.




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