                                                                                                Filed
                                                                                          Washington State
                                                                                          Court of Appeals
                                                                                           Division Two

                                                                                           March 7, 2017




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                           DIVISION II
 STATE OF WASHINGTON,                                                 No. 47960-5-II

                           Respondent,

            v.                                                  UNPUBLISHED OPINION

 JEROME CEASAR ALVERTO,

                           Appellant.


           MAXA, A.C.J. – Jerome Ceasar Alverto was convicted of attempted first degree murder,

first degree burglary, and first degree robbery for crimes committed against Stephanie Wilson,

his former wife. Alverto appeals the trial court’s denial of his motion for postconviction DNA

(deoxyribonucleic acid) testing of a hair found at the crime scene. He argues that the trial court

erred in denying his motion because the results of DNA testing of the hair, combined with other

new evidence he submitted, would show his innocence.

           We hold that the trial court did not err because regardless of whether DNA testing

showed that the hair belonged to someone other than Alverto, it would not demonstrate Alverto’s

innocence. Accordingly, we affirm the trial court’s order denying Alverto’s motion for DNA

testing.
No. 47960-5-II


                                              FACTS

Attempted Murder

         Wilson spent the evening of May 12, 2006 with her boyfriend, Eric Rogers, and then

returned home. In the early morning of May 13, Wilson received a phone call from Alverto.

Alverto asked Wilson about her concealed weapons permit and told her that she should not have

married him. Alverto also asked Wilson if she was going to marry her boyfriend, Eric Rogers.

Wilson hung up on Alverto and sent a text message to Rogers, who called her back.

         Wilson then was attacked from behind. The attacker wore dark clothing, gloves, and a

bandanna around his face. He hit Wilson on the head repeatedly with a gun and stated that she

should not have married him. Wilson recognized the attacker as Alverto by his eyes, body, and

voice.

         At some point during the attack, Wilson was able to run out the front door and toward her

neighbor’s house. Alverto chased Wilson and shot her in the chest and then again in the hand.

Wilson pretended she was dead until she heard Alverto leave, and then she continued to the

neighbor’s patio. But Alverto came back and shot Wilson in the back of the neck. Wilson

collapsed, and Alverto grabbed her by the hair and pulled her down the patio steps onto the

neighbor’s lawn. He then shot Wilson twice in the head and left.

         Wilson was able to reach another neighbor’s house and knocked on the door. The

neighbor called 911 and police arrived. The police encountered Rogers coming out of Wilson’s

housed and briefly detained him. Wilson told both the neighbor and the police that it was

Alverto who attacked her.




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Investigation

          Police went to Alverto’s residence and observed Alverto in his car wearing dark clothing,

including blood stained pants. DNA from the blood on Alverto’s pants was later tested and

matched Wilson’s DNA. Police found a notebook in the front seat of Alverto’s car that appeared

to be a detailed “to-do list” for attacking someone. Report of Proceedings (RP) (Aug. 13, 2008)

at 788.

          Forensic investigators examined the scene of Wilson’s attack, including the area around

her house and neighboring houses. A forensic examiner collected a hair from the sliding glass

door on the neighbor’s patio, but did not test it. At the hospital where Wilson was treated for her

injuries, a detective directed medical staff to take Wilson’s fingernail scrapings in order to

collect DNA. But the police never received any fingernail scrapings from the medical staff.

          Later that morning, a contractor found a duffle bag at a nearby construction site and

called the police. The bag contained a handgun with blood on it, a backpack, a leather jacket,

light blue respirator masks, four gas masks with filters, and a blue bandanna. In the jacket

pockets were two pairs of handcuffs and Wilson’s cell phone. In the backpack were three trash

bags, two stocking caps, jeans, a garage door opener for Wilson’s garage door, a photograph of

Wilson and Rogers, and two bracelets. Wilson later identified one of the bracelets as one she

had given to Alverto when they were in a relationship. Inside the pair of jeans was a piece of

paper with Alverto’s name on it.




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Alverto’s Conviction, Appeals, and Postconviction Motions

        The State charged Alverto with attempted first degree murder, first degree burglary, and

first degree robbery. The case went to trial in August 2008. The jury found Alverto guilty on all

charges. The trial court sentenced him to 460.5 months in prison.

        Alverto filed a direct appeal, and in July 2010 this court affirmed his conviction. State v.

Alverto, noted at 157 Wn. App. 1011, 2010 WL 2927452, at *7. Alverto later filed a personal

restraint petition which raised numerous issues, including DNA testing of the hair and fingernail

scrapings. This court dismissed his petition.

        Alverto then filed a motion for postconviction DNA testing of hair and fingernail

scrapings in the trial court. The trial court denied his motion, ruling that he had failed to show

the likelihood that the DNA evidence would demonstrate his innocence on a more probable than

not basis. On appeal, a commissioner of this court ruled that Alverto’s appeal was frivolous and

affirmed the trial court.

Present Motion for Postconviction DNA Testing

        In June 2014, Alverto filed a second motion for postconviction DNA testing. This

motion requested DNA testing of only the hair evidence.

        Alverto submitted additional evidence with his motion. First, he submitted the affidavit

of Maurice Thrower, a fellow inmate. Thrower stated that around June 2006 he met a man called

“E” who confessed to him that he shot his girlfriend and let her ex-husband take the blame.

After meeting Alverto, Thrower believed that “E” could have been Eric Rogers. Second, Alverto

submitted an unsworn opinion from handwriting examiner David Cupp that the notebook found

in Alverto’s car was not Alverto’s handwriting, but could be Rogers’ handwriting. Third,



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No. 47960-5-II


Alverto submitted his cell phone records from May 2006 to show that he did not call Wilson

before she was attacked.

       In November 2014, the trial court granted Alverto’s motion for postconviction DNA

testing. Eight months later, the State filed a motion for reconsideration. Although the trial court

noted that the State’s motion for reconsideration was untimely, the trial court decided to reverse

its earlier ruling granting Alverto’s motion for DNA testing. The trial court stated that “if it’s

just the hair . . . that’s all we’re dealing with, I can’t see how that would, on any basis, show your

innocence.” RP (July 30, 2015) at 12. Alverto filed a motion for reconsideration which the trial

court denied.

       Alverto appeals.

                                            ANALYSIS

A.     MOTION FOR POSTCONVICTION DNA TESTING

       Alverto argues that the trial court should have granted his motion for DNA testing of the

hair found on the sliding glass door at Wilson’s neighbor’s house because a favorable result,

combined with the new evidence he submitted, would demonstrate his innocence. We disagree.

       1.    Legal Principles

       “RCW 10.73.170 provides a mechanism under Washington law for individuals to seek

DNA testing in order to establish their innocence.” State v. Crumpton, 181 Wn.2d 252, 258, 332

P.3d 448 (2014). Under RCW 10.73.170, a person currently imprisoned for a felony conviction

may file a motion with the trial court requesting DNA testing. The trial court must grant a

motion which meets certain procedural requirements and the substantive requirement that the

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



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No. 47960-5-II


innocence on a more probable than not basis.” RCW 10.73.170(3); see State v. Gentry, 183

Wn.2d 749, 764, 356 P.3d 714 (2015).

       When determining the likelihood that DNA evidence will demonstrate the convicted

person’s innocence, the trial court must presume that the result of testing the DNA evidence will

be favorable to the convicted person. Gentry, 183 Wn.2d at 765. But the trial court also must

evaluate the presumed favorable DNA evidence in the context of all the evidence presented at

trial against the convicted person and any newly discovered evidence. Id. at 766-68; State v.

Riofta, 166 Wn.2d 358, 369, 209 P.3d 467 (2009). “It is only within the context of the other

evidence that the court can determine whether DNA evidence might demonstrate innocence.”

Crumpton, 181 Wn.2d at 262. The inquiry is 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.” Id. at 260.

       The defendant’s burden to show that favorable DNA evidence would demonstrate

innocence is onerous. Id. at 261. “Testing should be limited to situations where there is a

credible showing that it could benefit a possibly innocent individual.” Id.

       We review a trial court’s denial of postconviction DNA testing for an abuse of discretion.

Gentry, 183 Wn.2d at 764. A trial court abuses its discretion when the record does not support

its decision or when it applies the wrong legal standard. Id.

       2.   Analysis

       Alverto argues that DNA from the hair found on the neighbor’s door must be tested

because if it matches Rogers’ DNA, it would exculpate Alverto. We disagree.




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No. 47960-5-II


         Alverto asserts that his new evidence – the fellow inmate’s affidavit, the handwriting

analysis, and his phone records – supports his theory that Rogers attacked Wilson and framed

Alverto. According to Alverto, if the hair from the neighbor’s door is tested and matches

Rogers’ DNA, that evidence would demonstrate Alverto’s innocence on a more probable than

not basis.

         We must presume that the DNA testing would be favorable to Alverto. Gentry, 183

Wn.2d at 765. Under Alverto’s theory, the most favorable DNA result would be that the hair

provides a DNA match with Rogers.1 However, when considering a motion for postconviction

DNA testing we must look at all the evidence, not just the evidence supporting the defendant’s

theory. Crumpton, 181 Wn.2d at 262. In this case, even if DNA testing on the hair matches

Rogers, that result would not demonstrate Alverto’s innocence on a more probable than not

basis.

         Rogers’ hair could have ended up on the neighbor’s door by innocent means. Rogers was

Wilson’s boyfriend and he had spent time with her earlier in the evening before the attack. So it

would be possible that Wilson transported his hair to the neighbor’s door when she went for

help. Therefore, the presence of Rogers’ hair would not inculpate him as Wilson’s attacker.

This is not the type of case where the evidence found at the scene could only have come from the

attacker. See Gentry, 183 Wn.2d at 767-68 (holding that the trial court did not abuse its


1
 Here, one favorable result would be that the DNA from the hair does not match Alverto, but the
most favorable result to support Alverto’s theory would be that the DNA from the hair matches
Rogers. Case law does not specify whether the trial court must presume only that the DNA
evidence does not match the defendant or whether it also must presume that the DNA matches a
particular individual. We do not address this issue because DNA testing of the hair would not
show Alverto’s innocence even if it matched Rogers’ DNA.



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No. 47960-5-II


discretion in denying a motion for DNA testing of hair found on a murder victim’s body because

the hairs could have come from sources other than the perpetrator).

        Alverto’s new evidence, even in conjunction with DNA testing showing that the hair

belonged to Rogers, cannot overcome the evidence against Alverto on a more probable than not

basis. Thrower’s affidavit is clearly dubious and may be treated with skepticism. Riofta, 166

Wn.2d at 372-373. And we need not consider the handwriting analysis because it is unsworn.

See id. at 372. Finally, under RCW 10.73.170(3) the question is whether “the DNA evidence

would demonstrate innocence on a more probable than not basis.” (Emphasis added.) As noted

above, even DNA test results showing that the hair belonged to Rogers would be inconclusive.

        Accordingly, we hold that the trial court did not abuse its discretion in denying Alverto’s

motion for postconviction DNA testing.

B.      APPELLATE COSTS

        Alverto requests that we refrain from awarding appellate costs if the State seeks them.

The State has not yet sought appellate costs. We decline to consider the issue.

        Under State v. Grant, a defendant is not required to address appellate costs in his or her

briefing to preserve the ability to object to the imposition of costs after the State files a cost bill.

196 Wn. App. 644, 650-51, 385 P.3d 184 (2016). A commissioner of this court will consider

whether to award appellate costs in due course under the newly revised provisions of RAP 14.2

if the State decides to file a cost bill and if Alverto objects to that cost bill.

                                            CONCLUSION

        We affirm the trial court’s order denying Alverto’s motion for DNA testing.




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No. 47960-5-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.



                                                      MAXA, A.C.J.


 We concur:




 WORSWICK, J.




 SUTTON, J.




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