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State v. Jenkins

Court of Appeals of Oregon

March 29, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
RICHARD ANTHONY JENKINS, Defendant-Appellant.

          Argued and Submitted September 24, 2015

         Multnomah County Circuit Court 071135698; Janice R. Wilson, Senior Judge.

          Erik Blumenthal, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Offce of Public Defense Services.

          Peenesh Shah, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Carolyn Alexander, Assistant Attorney General.

          Before Ortega, Presiding Judge, and Lagesen, Judge, and Garrett, Judge.

         Case Summary: Defendant appeals an order denying his motion for DNA testing, arguing that the trial court erroneously concluded that he had not met the requirements set out in ORS 138.692 and, in particular, that he had failed to present a prima facie showing that DNA testing would, assuming exculpatory results, establish his actual innocence. In defendant's affidavit in support of his motion, he included the results from prior DNA testing of a sweat jacket associated with robberies for which he was convicted, which identified defendant as a major contributor of DNA to the sweat jacket and were used as evidence against him in his criminal trial. Held: Given the prior DNA results, defendant has not established how favorable DNA tests results from retesting the sweat jacket would establish his actual innocence, and, therefore, the trial court did not err in denying defendant's motion for DNA testing.

         Affirmed.

          ORTEGA, P. J.

         Defendant appeals an order denying his motion for DNA testing, arguing that the trial court erroneously concluded that he had not met the requirements set out in ORS 138.692 and, in particular, that he had failed to present a prima facie showing that DNA testing would, assuming exculpatory results, establish his actual innocence.[1] In defendant's affidavit in support of his motion, he included the results from prior DNA testing of a sweat jacket associated with robberies for which he was convicted, which identified defendant as a major contributor of DNA to the sweat jacket and were used as evidence against him in his criminal trial. Reviewing the trial court's determination for legal error, see State v. Romero. 274 Or.App. 590, 599, 360 P.3d 1275 (2015), rev den, 358 Or 794 (2016), and given the prior DNA results, we conclude that defendant has not established how favorable DNA tests results from retesting the sweat jacket would establish his actual innocence. Accordingly, the trial court did not err in denying defendant's motion for DNA testing, and we affirm.

         Defendant was convicted in 2008, following a bench trial, of two counts of first-degree robbery with a firearm, three counts of second-degree robbery with a firearm, and three counts of felon in possession of a firearm. The convictions arose from two robberies committed at a Portland bar on different dates in 2007.

         In 2009, defendant moved to allow independent testing of forensic evidence under ORS 138.690 ("A person may file in the circuit court in which the judgment of conviction was entered a motion requesting the performance of DNA (deoxyribonucleic acid) testing on specific evidence ***."). As required by ORS 138.692 (1), [2] he also provided an affidavit, which acknowledged that the evidence at issue, a white sweat jacket decorated with gold logos, had already been tested by Dr. Scott, a forensic scientist, at the Oregon State Police Forensic Laboratory (OSP crime lab). That test, according to the affidavit and an attached lab report, indicated that three individuals contributed DNA evidence to the sweat jacket and identified defendant as the major contributor. Defendant also stated in his affidavit that his criminal trial counsel had obtained state funding to hire a DNA expert, Intermountain Forensics, for his defense.[3]Defendant also swore that the sweat jacket did not belong to him and that he had never worn it. In defendant's view, because he had no connection to the sweat jacket, he could not have contributed any of the discovered DNA. He also asserted that an independent test will "prove as a matter of factual evidence that there does not exist any DNA from Defendant that contributes to the mixture of three individuals." Therefore, defendant posited that "such a test will prove as a matter of fact that the State obtained its conviction upon fabricated evidence that has not been established as evidence of fact."

         The trial court ruled that defendant's affidavit did not satisfy the requirements of ORS 138.692(1) and denied defendant's motion for DNA testing. Defendant appeals the order, arguing that, because the legislature's intent in enacting the DNA testing statute was to set a "low bar" for DNA testing, the task of the trial court deciding the motion must be to order testing if the "theory put forward by the defendant could result in proof of the defendant's innocence." (Emphasis in original.) Further, defendant asserts that the facts alleged in the pleadings must be viewed in the light most favorable to defendant, the party required to make a prima facie showing of actual innocence.

         Under that standard, defendant contends that he met all of the requirements set out in ORS 138.692(1), namely, that he attested that he was innocent of the robbery felonies for which he was convicted, ORS 138.692(1)(a)(A)(i); he identified the specific evidence to be tested-the sweat jacket secured in the investigation-and put forth a theory of defense that independent DNA testing would support, ORS 138.692((1)(a)(B); he included the results of the DNA testing conducted by the OSP crime lab, ORS 138.692(1)(a)(C); and, he presented a prima facie showing that DNA testing of the sweat jacket would, assuming exculpatory results, establish his actual innocence, ORS 138.692(1)(b). In particular, his theory of defense is that DNA testing will establish that he never wore the sweat jacket used as evidence connecting him to the robberies and that the OSP crime lab testing results were fabricated or erroneous.[4]

         The state responds that the trial court correctly determined that defendant did not meet his burden of making a prima facie showing of actual innocence, as required by ORS 138.692(1)(b)(A), because, even if DNA retesting results were different from the initial testing, they would not exonerate defendant. Moreover, in the state's view, even if independent DNA testing were to result in not finding a match with defendant's DNA, there could be a number of explanations that could explain such results. Further, the state argues, defendant's assertions ...


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