      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,                            )     No. 77446-8-I

                           Respondent,          )     DIVISION ONE

             v.                               )       UNPUBLISHED OPINION
                                              )
KEVIN JORY BRAA,                              )
                           Appellant.
                                              )       FILED: July 22, 2019
       ANDRus, J. —A jury convicted Kevin Braa of first degree manslaughter, and

this court affirmed his conviction and sentence. Braa now appeals the trial court’s

denial of his request for post-conviction DNA (deoxyribonucleic acid) testing of

bullet fragments found at the crime scene. But Braa has failed to demonstrate that

a favorable DNA test result would establish his innocence on a more probable than

not basis. Thus, we affirm the trial court.

                                        FACTS

      This court previously summarized the circumstances of Braa’s conviction:

      On the evening of November 11, 2006, Kevin Braa was sitting at the
      bar reading a book in Kuhnle’s Tavern in Marysville. Simeon Whitney
      was there playing pool with his brother, Roger Enick, and a friend,
      Kenny Celestine.      Whitney, Enick, and Celestine are Native
      American and went to Kuhnle’s Tavern because it is a hangout for
      Native Americans.

      Enick and another bar patron argued over a game of pool, and the
      other patron used racial slurs about Native Americans. At some
      point, Braa went over to the pool table and made offensive comments
      toward Enick. Whitney pushed Braa out of the way and told him,
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      “Leave my homeboy alone.” Braa told Whitney, “Go back to Mexico
      where you belong. You’re a sub-human.” When the bartender heard
      this, she told Braa that he would be asked to leave if he continued to
      talk that way. Braa did not comply, so she escorted him to the back
      door. A minute or two later, Whitney went out through the same door.

      A fight ensued between Whitney and Braa outside behind Kuhnle’s
      Tavern. Witnesses saw Whitney repeatedly punch Braa and pull
      Braa’s shirt up over his head. After the fight, Whitney started toward
      the back door of Kuhnle’s, and Braa went over to his truck. Braa fired
      four to six shots at or toward the back door. Some witnesses saw
      Braa standing by his truck with the door open and his arm extended
      as he fired. Whitney staggered through the back door and collapsed
      by the bathrooms. When the bartender heard the gunshots and saw
      Whitney on the floor, she ducked down and called 911. Two
      witnesses saw Braa drive away in a white Chevy S-b pickup.

     A police officer who happened to be a few blocks away heard the
     gunshots and responded to the scene. Whitney had a pulse but was
     bleeding from the abdominal area and was nonresponsive. He was
     airlifted to Harborview and died en route. Later, an autopsy
     determined Whitney had suffered four gunshot wounds. The wounds
     showed that the bullets traveled from back to front through Whitney’s
     body. One bullet and fragments from another were recovered from
     his abdomen. Another bullet exited through the front of his abdomen.
     The cause of Whitney’s death was shock, trauma, and loss of blood
     due to the gunshot wounds.

      Officers found bullet jacket fragments near where Whitney had lain.
     There were shell casings in the parking lot, as well as the book the
     defendant had been reading at the bar. Detectives recovered three
     bullets and bullet shrapnel from the back door area and the carpet
     just inside the back door. There were two indentations in the metal
     of the back door, which were consistent with bullet strikes.
     Detectives also located a bullet hole in an interior wall just inside the
     back door. Forensic analysis later confirmed that the bullet taken
     from Whitney’s abdominal wall and the bullet found by the back door
     were fired from the same gun. The four shell casings found in the
     parking lot were compared and it was forensically determined that all
     had been fired from one gun.

     Braa lived in a two-bedroom trailer that he shared with a roommate,
     Lenny Graff. Braa returned home around 10:30 on the night of the
     crime and asked Graff to get some beer, which Graff did. Graff
     recalled that Braa looked like he had been in a fight, with black eyes
     and a bloody nose. When Graff returned with the beer, Braa had

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No. 77446-8-1/3

      changed his clothes and no longer looked dirty or bloody. Graff asked
      what had happened, and Braa told him that he had “killed a
      subhuman.” When Graff asked what a subhuman was, Braa
      responded, “It means if you’re not white, you’re not right.” He told
      Graff he had been jumped by some Mexicans who wanted to steal
      his wallet. He refused to discuss further the topic of killing someone
      and asked Graff to lie and say he had been home all night.

      That night, Braa parked his car several feet further from the roadway
      than he usually did, and he did not move it for the next three days.
      On November 14, 2006, officers arrived at Braa’s trailer to execute a
     search warrant and arrest him. They could see Braa inside, through
     the kitchen window. They announced their presence over the patrol
     car PA systems. They also used a “hailer,” a box equipped with a
     loudspeaker, a handle for throwing, and hundreds of feet of cable, to
     communicate with Braa. Several times, an officer announced, “Kevin
     Braa, this is the Sheriff’s Office. We have a warrant for your arrest.
     Identify yourself and surrender,” but Braa did not come out. Officers
     shone lights into the home, and a helicopter was also used to
     illuminate the area. After Braa failed to respond to repeated voice
     commands, officers deployed two pepper spray projectile canisters
     through a window of the trailer. Braa came outside a few seconds
     later, complied with officers’ verbal instructions, and was taken into
     custody.

      Four and a half months later, while doing yard work, Graff discovered
      a plastic garbage bag under the deck of the trailer. Inside, he
     discovered Braa’s 9mm semiautomatic Ruger handgun. He called
      911, and police picked up the gun. Forensic analysis confirmed that
     the bullet extracted from Whitney’s abdominal wall had been fired
     from that weapon and that one of the four spent shell casings found
     in the parking lot had also been fired from that weapon. The other
     bullets and casings were not analyzed because it had already been
     determined that they had been fired from the same weapon as the
     tested bullet and casing. An expert in trajectory analysis testified that
     at least one bullet had been shot from a height of about four and a
     half feet, within 10 feet of where bullet fragments were imbedded in
     the wall inside the tavern. The evidence was consistent with the
     trajectory from a gun held by a person of average height while
     standing up.

     At trial, Braa conceded that he shot the gun and argued that it had
     been in self-defense. He testified that he had a verbal exchange with
     some guys he thought were Mexican and that he had called them
     “Mexicans” and “sub-humans” and “invited them to go back to their
     own country.” He recalled that the bartender had asked him to be

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 No. 77446-8-1/4

        quiet and go sit down, and he testified that he did so. Shortly
        afterward, he left the bar through the back door and as he was
        leaving was hit over the head and lost consciousness. When he
        came to, he was being beaten by an unknown assailant. He did not
        fight back but tried to protect himself by curling up. He tried to get
        away but was beaten more and shoved to the ground. He thought
        he was going to be beaten until he was killed. After being slammed
        into a vehicle, he got his gun out and fired immediately. He testified
        that he was slumped, lying on the ground when he fired.

        Braa was charged with second degree murder and, in the alternative,
        first degree manslaughter. The jury found Braa guilty of the alternate
        charge of first degree manslaughter.

State v. Braa, noted at 150 Wn. App. 1035, slip op. at 34-39 (2009).1

        Nine years after his conviction, Braa filed two motions for post-conviction

DNA testing under RCW 10.73.170, which provides that:

        (1) A person convicted of a felony in a Washington state court who
        currently is serving a term of imprisonment may submit to the court
        that entered the judgment of conviction a verified written motion
        requesting DNA testing, with a copy of the motion provided to the
        state office of public defense.

        (2) 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 information;

               (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.

       1 Our Supreme Court subsequently denied Braa’s petition for review. State v. Braa, 191

Wn.2d 1010, 424 P.3d 1225 (2018).

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No. 77446-8-1/5


       (3) The court shall grant a motion requesting DNA testing under this
       section if such motion is in the form required by subsection (2) of this
       section, and the convicted person has shown the likelihood that the
       DNA evidence would demonstrate innocence on a more probable
       than not basis.

       (4) Upon written request to the court that entered a judgment of
       conviction, a convicted person who demonstrates that he or she is
       indigent under RCW 10.101.010 may request appointment of
       counsel solely to prepare and present a motion under this section,
       and the court, in its discretion, may grant the request. Such motion
       for appointment of counsel shall comply with all procedural
       requirements established by court rule.

       Braa’s first motion, filed on August 16, 2016, sought appointment of counsel

and DNA testing of a drop of blood taken from the tavern parking lot the night

Whitney was shot. Braa claimed that DNA testing would “provide new information

about where [Whitney] was actually at when shot.” Braa argued that if the blood

belonged to Whitney, it would support his trial defense that he had shot Whitney in

self-defense while Whitney was standing in close proximity over him. The trial

court denied the motion.

       Braa appealed, and in a published opinion, this court concluded that a

favorable DNA test result of the blood drop would not establish Braa’s innocence

on a more probable than not basis. State v. Braa, 2 Wn. App.2d 510, 523, 410

P.3d 1176 (2018). It reasoned that even if Braa were entitled to a “favorable

presumption” that a DNA test would reveal the blood belonged to Whitney, Braa

was not entitled to the presumption that the existence of Whitney’s blood in that

specific location in the parking lot meant Braa shot Whitney in that location. ki. at

521. It noted that Whitney’s blood could have ended up in that spot in a number

of ways, including during the fist fight itself; it did not mean that Braa shot Whitney

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 No. 77446-8-1/6

 in that location. Id. at 522. Thus, it concluded that the trial court had not abused

 its discretion when it denied Braa’s motion.2

            Braa’s second motion, filed on May 8, 2017, sought DNA testing of “[b]ullet

 [j]ackets/[f]ragments” collected from the parking lot. Braa’s motion referred to two

specific bullet fragments, which were marked at the scene by placards 40 and 35

and were trial exhibit numbers 10 and 18, respectively. While the fragment marked

by placard 40 was in the parking lot, the fragment marked by placard 35 was found

by the back entrance to the bar. The fragment marked by placard 40 was next to

the blood drop this court already deemed ineligible for post-conviction DNA testing.

Braa, 2 Wn. App. 2d at 510.

            Braa claimed that DNA testing of these bullet jackets or fragments “would

provide new information about where [Whitney] actually was when shot, confirming

Braa’s claim of necessity due to self defense/imminent danger.” The trial court

once again denied the motion:

    1. A) The defendant has failed to comply with the procedural
       requirements of RCW 10.73.170(2), because the identity of the
       shooter (defendant Kevin Braa) is undisputed.

        B) The defendant has failed to meet his substantive burden under
        ROW 10.73.170(3) because favorable DNA evidence, when
        considered along with all of the other evidence, would not
        demonstrate his innocence on a more probable than not basis.

    2. The defendant’s motion does not establish grounds for relief, so the
       Court in its discretion declines to appoint counsel for this issue.

Braa appeals.


        2 This court, however, concluded that the trial court erroneously concluded that Braa had
not complied with the procedural requirements of RCW 10.73.170 (2)(b). Braa, 2 Wn. App. 2d at
520. We agree that in the present case, the trial court erroneously concluded that Braa’s motion
did not comply with RCW 10.73.1 70(2)(b).

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 No. 77446-8-1/7

                                     ANALYSIS
       We review a trial court’s decision on a motion for post-conviction DNA

testing for abuse of discretion. State v. Crumpton, 181 Wn.2d 252, 257, 332 P.3d

448 (2014).    A trial court abuses its discretion if the decision rests on facts

unsupported in the record or was reached by applying the wrong legal standard.

Id.

       In determining whether to grant a request for post-conviction DNA testing,

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. k1. at 260. To do so, 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.” State v.

Riofta, 166 Wn.2d 358, 369, 209 P.3d 467 (2009).             Imposing a favorable

presumption when deciding a motion for post-conviction DNA testing affects only

whether the DNA will be tested; it does not affect whether the individual will be

granted a new trial. ki. Moreover, “[ojbtaining a DNA test is simply the first step

on the journey for a new trial.” Crumpton, 181 Wn.2d at 263.

      Braa claims that DNA testing of the two bullet fragments from the crime

scene would provide “independent evidence” that Whitney was nearby and in a

position to continue attacking Braa when Braa shot him. Although Braa complied

with the procedural requirements, Braa must also show that a favorable DNA result

would prove his innocence on a more probable than not basis. Braa contends that




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No. 77446-8-I/S

such DNA testing would bolster his self-defense claim, and by doing so, show a

probability of innocence.

        But we conclude that Braa fails, once again, to show that he is entitled to

an inference that he acted in self-defense. While a petitioner is entitled to an

inference of a favorable DNA result, he is not entitled to any further favorable

presumptions. See Braa, 2 Wn. App. 2d. at 521-22 (even if a blood drop contained

Whitney’s DNA, Braa was not entitled to inference that blood proved Whitney was

shot in that spot).

       Here, Braa argues that had the police tested the bullet fragments located

near the tavern’s back door and fragments found out in the parking lot, and had

these fragments tested positive for Whitney’s DNA, that evidence would have

established that Braa shot Whitney in self-defense.

       But as we indicated in Braa’s prior appeal, we cannot ignore the other

evidence at trial when assessing whether a particular inference is a reasonable

one. Even if Whitney’s DNA were found on the bullet fragment near the tavern’s

back door (trial exhibit 18), this evidence would place Whitney exactly where

witnesses observed him when Braa shot him. This evidence would have been no

more helpful to Braa than the blood drop:

      But even assuming that the drop of blood found in the parking lot was
      Whitney’s, the evidence introduced at trial strongly contradicts Braa’s
      self-defense theory. The evidence established that Whitney had
      been shot in the back at least three times. It further established that
      the bartender heard a burst of gunshots contemporaneously with
      Whitney crashing through the rear door of the tavern, 30 feet away
      from where Braa was seen to have fired the gunshots. In addition,
      the evidence established that there was a great deal of blood in the
      area of the rear door of the tavern.


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 No. 77446-8-1/9

 Braa, 2 Wn. App. 2d at 522. The evidence refuting Braa’s self-defense theory was

strong.

          And Whitney’s DNA on a bullet fragment found further away in the parking

lot similarly fails to establish that Braa acted in self-defense. Forensic scientist

Richard Wyant testified that shrapnel from bullets does not establish the shooter’s

location. He similarly testified that casings indicate the shooter’s general location

but “a lot of factors” go into where the bullet or cartridge casing will land. Similarly,

Dr. Norman Thiersch, the Medical Examiner who performed Whitney’s autopsy,

noted that bullets can fragment after entering the body and exit the body in

unpredictable locations after coming in contact with bone.

       Finally, as this court pointed out in Braa’s direct appeal and in his previous

appeal, Braa’s actions following the shooting did not support his self-defense

claim. Evidence at trial demonstrated that Braa fled the scene of the crime and

hid the gun under his deck. Lenny Graff, Braa’s roommate at the time, testified

that when Braa returned home from the tavern, Braa admitted to Graff that he had

‘killed a sub-human.” Graff further testified that Braa had asked him to lie to the

police and tell them that Braa was home all evening watching television. Graff

further testified that on April 5, 2007, he found a black plastic bag buried in the

flower bed beside the home’s deck. The bag contained a Ruger nine-millimeter

pistol. Graff called 9-1-1 to report the firearm, which matched the gun used to kill

Whitney.

      At trial, Braa admitted that he hid the gun under the deck at some point after

that evening. He also admitted to throwing the shirt he was wearing that evening


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No. 77446-8-Ill 0

behind the garbage. This court said that these actions supported “the State’s

theory that Braa had a guilty conscience arising from his slaying of Whitney. Such

a guilty conscience is incompatible with Braa believing that he had acted in lawful

self-defense by shooting Whitney.” Braa, 2 Wn. App. 2d at 523.

       Based on the evidence presented at trial, it is unlikely that, on a more

probable than not basis, a favorable DNA test result on two bullet fragments would

demonstrate Braa’s innocence. Furthermore, Braa is not entitled to the inference

that Whitney’s DNA on the bullet fragments demonstrates that Whitney was nearby

when he was shot. Without that inference, he cannot establish his innocence on

a more probable than not basis. Thus, the trial court did not abuse its discretion

when it denied Braa’s post-conviction motion for DNA testing.

      Affirmed.




WE CONCUR:                                                          ~G

                                                   C14~2




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