CHUN, J.
A jury convicted Digerolamo of second degree rape after his deoxyribonucleic acid (DNA) matched the DNA collected from amylase found in the victim's rape kit. Digerolamo moved for post-conviction DNA testing to determine the type of amylase the rape kit detected. The trial court denied the motion, finding RCW 10.73.170 does not authorize amylase testing and Digerolamo did not meet the statute's substantive requirement. Digerolamo appeals the denial. Because Digerolamo does not meet RCW 10.73.170's procedural or substantive requirements, we affirm.
S.B. spent a night at her aunt and Digerolamo's (her aunt's husband) home in 2009. S.B. drank alcohol to the point of intoxication that night but claimed Digerolamo did not drink any alcohol. Digerolamo states S.B. later threw up and the smell caused him to vomit as well. When S.B. went to bed, Digerolamo remained as the only male in the house. After S.B. fell asleep, she awoke to the feeling of a man with his tongue in her vagina. S.B. tried to push the man off and then blacked out.
The next day the hospital performed a rape kit on S.B. The rape kit found amylase (a digestive enzyme found in saliva and other bodily fluids) on the perineal swab and on S.B.'s underwear. DNA testing determined the amylase came from Digerolamo. A jury convicted Digerolamo of second degree rape. This court affirmed the conviction on appeal.
In 2017, Digerolamo moved for post-conviction DNA testing under RCW 10.73.170(2)(iii).
The State argues Digerolamo does not satisfy the procedural requirements because the statute's "DNA testing" language does not provide for amylase testing.
The meaning of a statute presents a question of law reviewed de novo.
To be granted post-conviction DNA testing, the requesting party must satisfy RCW 10.73.170's procedural and substantive requirements.
In interpreting a statute, the court aims to carry out the legislature's intent and give effect to the plain meaning.
Courts find statutes ambiguous if they can be reasonably interpreted in more than one way.
Digerolamo asserts the term DNA testing should be interpreted broadly to include amylase testing. He contends this would meet the statutory goal of using technology to free innocent people. However, because the term DNA testing is unambiguous, this court declines to hold RCW 10.73.170 authorizes amylase testing.
RCW 10.73.170 is titled "DNA testing requests" and provides "[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," but does not define DNA testing. RCW 1073.170(1). Because the statute does not define the term in dispute, the court looks to dictionary definitions. Merriam-Webster's defines DNA test as a "test that examines DNA and that is used to identify someone or show that people are relatives." MERRIAM-WEBSTER ONLINE DICTIONARY,
The State claims, even if RCW 10.73.170 authorizes amylase testing, Digerolamo fails to meet the statute's substantive requirement. Digerolamo contends proof the amylase came from his pancreas demonstrates his innocence on a more probable than not basis. Again, we agree with the State.
Appellate courts review a trial court's application of a statutory standard for an abuse of discretion.
If a defendant meets RCW 10.73.170's procedural requirements, a trial court must grant the post-conviction DNA testing if he or she has also shown the "`likelihood that the DNA evidence would demonstrate innocence on a more probable than not basis.'"
A trial court "presume[s] that the DNA evidence would be favorable" to the requesting party.
Digerolamo maintains he meets the substantive requirement's heavy burden. He asserts the pancreatic amylase would demonstrate a likelihood he is innocent of second degree rape because it would show the amylase samples from the victim's rape kit came from Digerolamo's wet vomit.
Proof the amylase came from Digerolamo's pancreas would benefit him because it would make his "vomit-transfer" theory more likely. However, other theories could also explain the presence of pancreatic amylase on the victim. As the State points out in its briefing, "even if Digerolamo had vomited on the night in question, both salivary and pancreatic amylase would likely be present in his mouth when he sexually assaulted the victim." Though the court presumes the testing will be favorable to Digerolamo in that it will be pancreatic amylase, he is not entitled to a further inference as to how the pancreatic amylase got onto the victim.
As such, the trial court properly exercised its discretion to find a favorable amylase test would not demonstrate Digerolamo's innocence on a more probable than not basis. Here, there was only one alleged perpetrator and the DNA evidence matched Digerolamo. While Digerolamo points out his DNA is the only forensic evidence linking him to the crime and the victim has limited memory of the night, it is not likely favorable test results would demonstrate his innocence in spite of the other evidence against him. In particular, the victim stated she was sexually assaulted and the rape kit found Digerolamo's DNA on the victim and her underwear.
Affirmed.
SCHINDLER and APPELWICK, JJ., concur.
(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.
(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.
. . .
(5) DNA testing ordered under this section shall be performed by the Washington state patrol crime laboratory. Contact with victims shall be handled through victim/witness divisions.