Court of Appeals Division I 

State of Washington
Opinion Information Sheet


Docket Number: 61709-5
Title of Case: State Of Washington, Resp. vs. Dennis Grey, App.
File Date: 07/06/2009


SOURCE OF APPEAL
----------------
Appeal from King County Superior Court
Docket No: 91-1-04466-6
Judgment or order under review
Date filed: 04/21/2008
Judge signing: Honorable Jeffrey M Ramsdell


JUDGES
------
Authored by Marlin Appelwick
Concurring: Mary Kay Becker
Linda Lau


COUNSEL OF RECORD
-----------------

Counsel for Appellant(s)
Nancy P Collins
Washington Appellate Project
1511 3rd Ave Ste 701
Seattle, WA, 98101-3635

Counsel for Respondent(s)
Prosecuting Atty King County
King Co Pros/App Unit Supervisor
W554 King County Courthouse
516 Third Avenue
Seattle, WA, 98104


Daniel Kalish
King County Prosecutor's Office
516 3rd Ave
Seattle, WA, 98104-2385




IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION ONE

No. 61709-5-I/2

STATE OF WASHINGTON,
)
No. 61709-5-I

Respondent, )

ORDER GRANTING
)
v. MOTION TO PUBLISH
)

DENNIS GRAY )

AKA DENNIS GALUSHA,
)

Appellant. )

)

)

)

)

The hearing panel having reconsidered its prior determination not to

publish the opinion filed for the above entitled matter on July 6, 2009, and

finding that it is of precedential value and should be published. The appellant,

Dennis Gray, having filed a motion to publish and respondent having filed its

answer to the appellant's motion to publish herein, and a panel of the court

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No. 61709-5-I/3

having determined that the motion should be granted;

Now, therefore, it is hereby

ORDERED that the written opinion filed July 6, 2009, shall be published

and printed in the Washington Appellate Reports.

DATED this day of August, 2009.

Judge

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, )
)
Respondent, )
)
v. )
)
DENNIS GRAY )
AKA DENNIS GALUSHA, )
)
Appellant. )
)

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No. 61709-5-I/4

No. 61709-5-I

DIVISION ONE

UNPUBLISHED OPINION

FILED: July 6, 2009

Appelwick, J. -- In 1991, Dennis Gray was convicted of first degree rape

and attempted first degree rape. Gray appeals the trial court's denial of his 2007

request, pursuant to RCW 10.73.170, for postconviction DNA testing on the

physical evidence used at trial. Gray satisfied the statute because he met the

procedural requirements of the statute by demonstrating that DNA testing had

advanced since the time of trial, and by demonstrating that the evidence from

the DNA testing would be new, significant, and material to the identity of the

perpetrator. Gray satisfied the substantive requirement of the statute by

demonstrating the likelihood that the evidence would suggest innocence on a

more probable than not basis. We reverse and remand.
FACTS1

Dennis Gray was convicted of first degree rape, attempted first degree

rape, and unlawful imprisonment for an incident that occurred on August 7,

1991. Four teenagers, two girls and two boys, were camping near the home of

1 Both parties cite the State's motion and memorandum in opposition to defendant's motion for
postconviction DNA testing for the facts. The only other source, albeit scarce, of facts in the
record is the opinion this court filed on May 15, 1995.

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No. 61709-5-I/5

one of the girls when Gray2 approached their campsite, made some small talk,

and asked if they had any marijuana. Gray left, but returned a few moments

later, this time carrying a knife with a four to six inch blade. He grabbed R.J.,

one of the girls, and told the boys to lie down or he would kill her. The boys

complied. When R.J. refused to take her clothes off, Gray held her around the

throat with the knife to her neck and told C.S., the other girl, to take her clothes

off. Without releasing R.J., Gray forced C.S. to perform fellatio on him. Gray

pushed C.S. on her back and attempted to vaginally penetrate her. He then

anally raped her. At some point during the rape, Gray's grasp loosened on R.J.,

and she was able to run away. Gray fled.

Police arrived on the scene shortly after the attack and found a truck

registered to Gray near the campsite. Police set up surveillance. At about 5:00

a.m., Gray emerged from a field near R.J.'s house, and police arrested him, as

he matched the teenagers' description. They described Gray as wearing a black

leather biker-type jacket, jeans, and black boots. On the jacket was a distinctive

lapel pin. Gray had a beard and long ponytail.

Police brought bloodhounds to the scene of the attack, where they were

scented to Gray using clothing Gray was wearing at the time of his arrest. The

dogs then located Gray's scent at the rape scene, followed it through a field, out

onto the street, and to the spot where police arrested Gray and put him in the

patrol car.

2 We use Gray's name in the facts, because he was convicted of the crime. However, we refer
instead to the "assailant" or "perpetrator" in our postconviction testing analysis.

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Police prepared a photo montage, where Gray's ponytail had been

undone. They showed it to the four teenagers. None picked Gray. The two

boys, but not the two girls, positively identified Gray in a second montage where

his hair was in a ponytail.
Police collected rectal and vaginal swabs; 3 pubic and head combings;

and the underpants, bra, shorts, and tights from C.S. The swabs and clothing

were tested for semen, with negative results. No DNA (deoxyribonucleic acid)

testing was done on the swabs. Police also collected samples from Gray's

clothing. In addition, hairs were collected from both victims, including C.S.'s

pubic and head combings, the sleeping bags on which the attacks occurred, and

Gray's clothing and belongings. Hair comparison analysis presented at trial

showed that two of the five hairs recovered from one sleeping bag were

dissimilar to all the control hair samples. None of the forensic scientist's

analysis conclusively established Gray as the assailant. DNA testing of the hair

samples was not conducted.

Gray filed a motion for postconviction DNA testing under RCW 10.73.170

in King County Superior Court on February 13, 2008. Gray moved the court to

allow DNA testing on three groups of evidence: (1) clothing worn by C.S. and

R.J.; (2) hairs recovered from the scene, the victims, and Gray; and (3) rectal
and vaginal swabs taken from C.S. just after she was raped.4 The trial court

3 C.S. wiped her genital area and urinated before swabs were taken.
4 Gray also requested DNA testing of the sleeping bags on which the crimes occurred, but the
sleeping bags no longer exist as evidence.

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No. 61709-5-I/7

denied Gray's motion, stating only that "[d]efendant's Motion is Denied for failure
to satisfy the requirements of RCW 10.73.170."5 Gray timely appealed.

DISCUSSION

I. Standard of Review

The postconviction DNA testing statute articulates three requirements,

some substantive and some procedural:

(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 . . . the crime . . . ; and
. . .
(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.

RCW 10.73.170; State v. Riofta, No. 79407-3, 2009 WL 1623427, at *2 (Wash.

June 11, 2009).

In construing a statute, the objective is to ascertain and give effect to the

legislature's intent. State v. Jacobs, 154 Wn.2d 596, 600, 115 P.3d 281 (2005).

If a statute uses plain language and defines essential terms, the statute is

unambiguous. State v. Stivason, 134 Wn. App. 648, 651, 142 P.3d 189 (2006),

5 The statute does not explicitly require that the court enter findings of fact, and the trial court
made none.

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No. 61709-5-I/8

review denied, 160 Wn.2d 1016, 161 P.3d 1027 (2007). If the statute is

unambiguous, a court may not look beyond its plain meaning or consider

legislative history; rather, the court must determine legislative intent through the

plain meaning of the statute. Id.

RCW 10.73.170(2)(a) and (b) are procedural requirements relating to the
motion's form and content. Riofta, 2009 WL 1623427, at *2.6 The substantive

requirement of RCW 10.73.170(3) requires the convicted person to show the

likelihood that the DNA evidence would demonstrate innocence on a more

probable than not basis. Riofta, 2009 WL 1623427, at *4. As part of satisfying

RCW 10.73.170(3), Gray must also carry the burden on the matters pleaded

under RCW 10.73.170(2). Whether the trial court correctly denied Gray's

motion turns on whether Gray has established that DNA technology was not

sufficiently developed to test the biological evidence at the time of his trial, or

that the DNA testing now requested would provide significant new information;

shown that the information is material to the identity of the perpetrator; and

demonstrated a likelihood that the DNA evidence would demonstrate innocence

on a more probable than not basis.

We review the trial court's application of the statutory standard for an

abuse of discretion. Riofta, 2009 WL 1623427, at *5.

II. Evolution of DNA Testing: RCW 10.73.170(2)(a)(ii)

The DNA testing conducted in the early 1990s demanded a large and

6 The State does not dispute that Gray has followed the statute's procedures for form.

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No. 61709-5-I/9

properly preserved sample of biological material. Cynthia E. Jones, Evidence

Destroyed, Innocence Lost: The Preservation of Biological Evidence Under

Innocence Protection Statutes, 42 Am. Crim. L. Rev. 1239, 1242 n.18 (2005).

Because no semen was present, the testing available at Gray's trial was not

adequate to detect the DNA on C.S.'s underwear, or on the vaginal or anal

swabs. Hair examination, which compared control hairs from the victims to hairs

taken from the physical evidence, did not establish Gray as the assailant. DNA

testing on the hairs was not conducted for trial, nor does the record establish

that DNA testing of hair was available at the time of trial.

Gray argues that the new DNA testing method, short tandem repeats

(STR), is much more accurate than restriction fragment length polymorphism

(RFLP), the method available at the time of his trial. To buttress his argument,

he cited scientific and legal literature discussing the advances in DNA testing,

noting that STR testing has made it possible to test small amounts of previously

untestable biological material contained in rape kits. Id. He also provides

authority for his proposition that STR or mtDNA (mitochondrial) testing could be

conducted on the hairs. Robert Aronson & Jacqueline McMurtrie, The Use and

Misuse of High-Tech Evidence by Prosecutors: Ethical and Evidentiary Issues,

76 Fordham L. Rev. 1453, 1470-71 (2007).

The State conceded in its trial brief that DNA testing technology has

significantly advanced. However, the State responds that Gray has not met his

burden under RCW 10.73.170(2)(a)(ii) regarding the swabs, because he has not

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No. 61709-5-I/10

shown that the technology exists to find the assailant's DNA on the vaginal and

rectal swabs, given the overwhelming amount of C.S.'s DNA on the swabs. The

State does not cite to any legal or scientific literature to support its argument.

Furthermore, the State makes no argument relative to advances in DNA testing

on hair samples or clothing.

We hold that Gray has satisfied RCW 10.73.170(2)(a)(ii).
III. Significant New Information: RCW 10.73.170(2)(a)(iii) 7

In Riofta, the Supreme Court held that "the statutory language, 'significant

new information,' includes DNA test results that did not exist at the time of trial

and that are material to the perpetrator's identity, regardless of whether DNA

testing could have been performed at trial." 2009 WL 1623427, at *1.

The testing available at Gray's trial could not identify the source of any

DNA on C.S.'s underwear or on the swabs. The scientific literature cited above

indicates the new testing may be able to analyze DNA from biological trace

material even without the presence of semen. The hair comparison analysis

showed that none of the hairs taken from the victims matched Gray's but could

not identify the donor. The DNA testing on the hairs would yield new

information. Further, if the testing of swabs taken from C.S. and the hair sample

found on R.J., who was held by the perpetrator while he raped C.S., both

revealed a DNA profile of someone other than Gray, this new information would

be significant. The State provides no specific rebuttal on this point.

7 Although a petitioner need only meet one of the requirements listed in RCW 10.73.170(2)(a),
Gray has pleaded two, so we evaluate both.

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No. 61709-5-I/11

Gray has met the requirement of RCW 10.73.170(2)(a)(iii).

IV. Materiality: RCW 10.73.170(2)(b)

Gray asked the court to allow DNA testing on three groups of evidence:

(1) clothing worn by C.S. and R.J.; (2) hairs recovered from the scene, the

victims, and Gray; and (3) rectal and vaginal swabs taken from C.S. just after

she was raped. Gray argues that the victims' clothing may have traces of skin

cells; because the clothing has not been tested, the results may be material to

the identity of the perpetrator. The assailant demanded that C.S. remove her

clothing herself, and the record does not show the extent to which the

perpetrator may have had direct contact with it. However, DNA from the

assailant could have been transferred from C.S.'s body to her clothing when she

dressed following the assault. DNA evidence from the underwear would be

material, even if DNA evidence from the rest of her clothing might not be.

Although Gray requests testing on R.J.'s clothing, the record does not

reflect whether it is available. R.J. was held by the assailant while he raped
C.S.8 However, even assuming that a new DNA profile was identified on R.J.'s

clothing, that DNA evidence alone would not be material to the identity of the

perpetrator.

Gray argues that DNA testing of the hair would be material to the identity

of the perpetrator because there was a single perpetrator, and DNA evidence

8 A forensic scientist tested C.S.'s clothing and did not find traces of semen or other bodily fluid.
Hair was recovered from R.J.'s clothing, but the record is unclear about whether other biological
samples were obtained, or could be obtained, from her clothing.

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No. 61709-5-I/12

from another person would be material to the perpetrator's identity. The State

responds that because Gray was already excluded as the source of the hairs

based on hair comparison analysis during trial, DNA testing of the hairs would

not be material to the identity of the perpetrator. Even if the hairs contained a

DNA profile of someone other than Gray or the victims, the State explains, any

number of innocent people could have deposited hairs on the victims or on the

sleeping bags (from which the hairs were collected). This argument rings true as

to the hair found on the sleeping bags and the victims' outerwear. However, the

possibility exists that the hair found in the pubic combing of C.S. and the hair on

R.J.'s clothing came from the same person. Such a match would be significant,

particularly if it identified a male other than Gray or the two boys. If the DNA

testing revealed this person was not Gray, the results would be material to the

identity of the perpetrator.

Gray also requests testing on the vaginal and rectal swabs, arguing that if

DNA other than C.S.'s is present, it will be material to the identity of the

perpetrator. The State asserts that testing the vaginal and rectal swabs, when

there is allegedly no semen or sperm on those swabs, would not be material to

the identity of the perpetrator.

The scientific and legal literature supplied by Gray suggested semen or

sperm may not be necessary to conduct DNA testing; skin cells may be enough.

The absence of Gray's DNA from the swabs would not be material. Even the

presence of a third person's DNA on the swabs or on any other evidence,

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considered individually, may appear to lack materiality. However, we must

consider the possibility that the combination of the test results would identify the

perpetrator. For example, if testing revealed a matching DNA profile from the

swabs taken from C.S., and from R.J.'s clothing or hair taken from her clothing,

this evidence would be clearly material to the identity of the perpetrator.

We hold that Gray has met his burden under RCW 10.73.170(2)(b).

V. Demonstrating Innocence on a More Probable than not Basis: RCW
10.73.170(3)

The legislative intent behind the 2005 amendment to RCW 10.73.170 was

to broaden access to DNA testing. Riofta, 2009 WL 1623427, at *2. Gray urges

that the standard in 10.73.170(3) -- "'the likelihood that the DNA evidence would

demonstrate innocence on a more probable than not basis'" -- is a "unique"

standard, because of the legislature's addition of "likelihood" to the common

more probable than not standard. Gray cites dictionary definitions equating

"likelihood" to probability or chance. If "likelihood" means probability, then it is

redundant of the more probable than not standard. Because courts must give

effect to every word in a statute, Gray explains that the moving party must show

only that there is a chance that DNA evidence would probably show the person

is innocent.

The State responds that "likelihood" means probability, and that Gray has

not shown that testing will demonstrate innocence on a more probable than not
basis, because the evidence on which he was convicted was strong.9 Because

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this statute applies to postconviction testing, the evidence will always have been

sufficient to convict beyond a reasonable doubt. But whether the evidence in the

original trial was strong or weak is only part of the question.

The Supreme Court has outlined a test, consistent with the mandate from

the legislature, to assess the probability that new DNA evidence would be

probative of innocence on a more probable than not basis. "To determine the

probability that a petitioner could demonstrate his innocence with the aid of

favorable 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." Riofta, 2009 WL 1623427, at *5.

Noting the legislature's use of the word "innocence," the Supreme Court

explained the legislative intent to restrict the availability of postconviction DNA

testing to a class of extraordinary cases, because to say a person is innocent

suggests the State has convicted the wrong person. Id. at *5 n.4. Hence, "[t]he

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." Id. at *4.

9 We note that much of the evidentiary basis on which Gray was convicted was circumstantial.
The evidentiary basis for Gray's conviction consisted of two photographic montages, the two
boys' in-court identifications of Gray, opinion testimony that the two boys were more positive
about their pick from the second montage than the first, and bloodhound testimony that tracked
his scent from the campsite to the spot of his arrest. Police also found a truck registered to Gray
near the campsite shortly after the crime was reported. While all the signs might point to Gray,
we cannot disregard the possibility of flawed evidence. For an example of eyewitness
misidentification, see the Innocence Project's explanation of Ronald Cotton's case, where Cotton
was improperly identified in a police lineup and in a photo identification, and DNA evidence later
exonerated him. Innocence Project, Know the Cases, http://www.innocenceproject.org/Content/
72.php (last visited May 19, 2009).

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In Riofta, the court declined to order testing on a white hat found on the

sidewalk near the driveway where the assailant shot at the victim, even when the

victim saw that the assailant was wearing it. Id. at *1. Even if Riofta obtained

the DNA test results he sought -- an absence of his DNA from the hat -- the result

would not be probative of his innocence. Id. at *5, *7. Because the shooter had

come from a vehicle with other people in it, the court found that any of the other

occupants could have worn the hat before the shooting, so the presence of other

DNA profiles than Riofta's would not suggest his innocence. Id. at *6.

Unlike Riofta, here, only one person perpetrated this crime. The testing

could yield various results. Gray could be identified with certainty as the

perpetrator. The test could be inconclusive. Or, it could show that the DNA

profiles from C.S.'s hair combings, underwear, or swabs matched the DNA

profile of the hair sample taken from R.J.'s clothing, but did not match Gray's

DNA profile. This would suggest Gray's innocence on a more probable than not

basis.

Factually, this case is similar to In re Pers. Restraint of Bradford, 140 Wn.

App. 124, 165 P.3d 31 (2007). Though that case concerned the question of a

new trial after the DNA test results were known, it bears on the question of

probable innocence. In Bradford, the appellant requested through a personal

restraint petition that the court reverse his convictions for rape and burglary

based upon newly discovered DNA evidence. Id. at 126. Posttrial testing

revealed DNA on the mask that was neither Bradford's nor the victim's; rather it

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belonged to an unidentified donor. Id. at 128. Because the victim had testified

that the assailant repeatedly pushed the mask back over her eyes, the court was

satisfied with the strength of the inference that Bradford was not the perpetrator

and granted him a new trial. Id. at 132. Here, the assailant had intimate contact

with one victim while holding the other victim at knife point. The presence of the

same DNA profile on either the vaginal or anal swabs taken from C.S. and on

any of the samples from R.J. would support a strong inference that the donor

was the assailant. If that DNA profile does not match Gray's, it would be

probative of his innocence on a more probable than not basis.

We hold that Gray has satisfied RCW 10.73.179(3).

We reverse the trial court's order denying Gray's motion for

postconviction DNA testing and remand.

WE CONCUR:

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