NOT DESIGNATED FOR PUBLICATION
No. 122,778
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
ENRIQUE C. PERALES,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; SETH L. RUNDLE, judge. Opinion filed June 4, 2021.
Affirmed.
Kristen B. Patty, of Wichita, for appellant.
Boyd K. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.
Before GREEN, P.J., SCHROEDER, J., and WALKER, S.J.
PER CURIAM: Enrique C. Perales timely appeals from the district court's denial of
his motion for postconviction DNA testing. He argues the district court erred in denying
his motion for lack of jurisdiction while his direct appeal was pending. We agree with
Perales the district court erred in finding it lacked jurisdiction, but its alternative finding
was partially correct. Perales was not entitled to DNA testing under K.S.A. 2020 Supp.
21-2512(a) as explained below. We affirm.
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FACTS
The facts underlying Perales' convictions are well known to the parties and do not
need to be repeated here in detail. Pertinent to this appeal, on January 4, 2017, Perales
physically and sexually abused A.C. Perales waived his right to an attorney and, at his
pro se jury trial on May 17, 2017, was convicted of aggravated battery and aggravated
criminal sodomy. At trial, the victim, A.C., testified and identified Perales as her ex-
boyfriend. A.C.'s testimony and that of the SANE nurse were consistent with A.C. having
been physically and sexually abused.
The jury found Perales guilty of aggravated battery for strangulation and
aggravated criminal sodomy, both acts of domestic violence. The district court sentenced
him accordingly, and Perales directly appealed his convictions. While his direct appeal
was pending, Perales later filed multiple motions, one of which was a motion for
postconviction DNA testing filed in November 2019.
In his motion for postconviction DNA testing, Perales requested DNA testing from
A.C.'s buccal, or cheek, area collected by the forensic examiner. Perales also requested
DNA testing of A.C.'s shirt for traces of blood. He acknowledged in his motion the State
would contest his position because he admitted to oral copulation at trial but asserted the
State had a continuing duty to disclose evidence favorable to the defense. Perales did not
testify at trial, but a forensic nurse examiner testified she saw injuries on the lateral shaft
of Perales' penis that could be consistent with forced oral penetration. The nurse
specifically asked Perales the purpose of his examination and, at trial, quoted Perales'
answer directly from her report: "I'm here to get one swab of my penis and one picture of
my penis to get her DNA off of my junk. I have a laceration on my penis from a sharp
tooth that she has. She's a freak. She likes to have sex all the time, six to seven times a
day." The State responded to Perales' motion, asserting the district court lacked
jurisdiction based on Perales' pending direct appeal plus he was not entitled to relief
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under K.S.A. 2017 Supp. 21-2512 because he failed to show his conviction for
aggravated criminal sodomy was arguably indistinguishable from a conviction for rape.
Perales responded, claiming this court had since affirmed his convictions on direct
appeal, though the mandate had not yet issued, and further alleging the victim underwent
a buccal mouth swab that would not contain his DNA. The district court denied Perales'
motion for postconviction DNA testing, reasoning it lacked jurisdiction because of his
pending direct appeal to this court and Perales did not establish his crime of conviction
was arguably indistinguishable from rape.
THE DISTRICT COURT HAD JURISDICTION TO ADDRESS PERALES' MOTION FOR
POSTCONVICTION DNA TESTING.
Perales argues the district court erred in denying his motion for postconviction
DNA testing for lack of jurisdiction while his direct appeal was pending. He also claims
the district court failed to follow precedent extending the availability of postconviction
DNA testing to those, like him, convicted of aggravated criminal sodomy. Perales asks us
to reverse the dismissal and remand to the district court with instructions to consider his
motion on the merits. The State argues the district court might have had jurisdiction over
Perales' motion for postconviction DNA testing if he could have shown K.S.A. 2017
Supp. 21-2512(a) applied to his specific crimes of conviction. The State asserts Perales is
not entitled to postconviction DNA testing under the statute because his specific crimes
of conviction do not fall within the statute.
The summary denial of a motion for DNA testing under K.S.A. 2020 Supp. 21-
2512(a) involves a question of law over which an appellate court has unlimited review.
State v. Lackey, 295 Kan. 816, 819-20, 286 P.3d 859 (2012). Jurisdiction is also a
question of law over which appellate courts exercise unlimited review. State v. Smith, 304
Kan. 916, 919, 377 P.3d 414 (2016). Generally, once an appeal is docketed, the district
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court loses jurisdiction to rule on posttrial motions. State v. Smith, 278 Kan. 45, 51, 92
P.3d 1096 (2004).
K.S.A. 2020 Supp. 21-2512(a) provides: "Notwithstanding any other provision of
law, a person in state custody, at any time after conviction for murder in the first degree
. . . or for rape . . . may petition the court that entered the judgment for forensic DNA
testing (deoxyribonucleic acid testing) . . . ." (Emphasis added.) In State v. Gooch, No.
116,960, 2017 WL 5951700, at *2 (Kan. App. 2017) (unpublished opinion), a panel of
this court determined the language of K.S.A. 2016 Supp. 21-2512(a) (which is identical
to K.S.A. 2020 Supp. 21-2512[a]) allows the district court authority to hear a motion for
postconviction DNA testing despite a pending direct appeal. However, in Gooch, the
defendant was convicted of rape, an offense expressly listed in the statute.
Here, Perales filed a motion for postconviction DNA testing after he docketed his
direct appeal. The State argues the district court lacked jurisdiction to hear the posttrial
motion while Perales' direct appeal was still pending. This argument is contrary to the
panel's decision in Gooch, but, notwithstanding the Gooch panel's reasoning, Perales'
direct appeal is no longer pending as this court affirmed Perales' convictions, and the
mandate has been issued. See State v. Perales, No. 119,815, 2019 WL 5089857, at *1
(Kan. App. 2019) (unpublished opinion), rev. denied 312 Kan. 899 (2020). We find the
panel's rationale in Gooch persuasive; accordingly, we find there was no jurisdictional
bar for the district court to have resolved Perales' motion.
However, as the State points out, the express terms of K.S.A. 2020 Supp. 21-
2512(a) only apply to defendants convicted of first-degree murder or rape. The State
argues the statute does not apply to Perales because he was convicted of aggravated
battery and aggravated criminal sodomy, not first-degree murder or rape. Perales
responds by arguing the district court failed to follow Kansas Supreme Court precedent
outlined in State v. Denney, 278 Kan. 643, 101 P.3d 1257 (2004), extending the
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availability of postconviction DNA testing to those, like him, convicted of aggravated
criminal sodomy.
In Denney, the defendant filed a pro se motion requesting DNA testing. The
district court denied the motion, explaining the statute was expressly limited to cases
involving rape or murder, neither of which the defendant had been convicted of. Our
Supreme Court noted the statute was unambiguous and clearly only applied to murder
and rape convictions. However, the Supreme Court considered Denney's equal protection
argument under the Fourteenth Amendment to the United States Constitution, in which
Denney argued there was no rational basis to authorize DNA testing for those convicted
of rape and not authorize such testing for those convicted of aggravated criminal sodomy.
The Supreme Court explained the two crimes must be examined to determine whether
they were "'arguably indistinguishable'" under the facts. 278 Kan. at 652.
Rape is defined by statute as: "(1) Knowingly engaging in sexual intercourse with
a victim who does not consent." K.S.A. 2020 Supp. 21-5503(a)(1). Sodomy is defined as
"oral contact or oral penetration of the female genitalia or oral contact of the male
genitalia; anal penetration, however slight, of a male or female by any body part or
object; or oral or anal copulation or sexual intercourse between a person and an animal."
K.S.A. 2020 Supp. 21-5501(b). "'Sexual intercourse' means any penetration of the female
sex organ by a finger, the male sex organ or any object. Any penetration, however slight,
is sufficient to constitute sexual intercourse." K.S.A. 2020 Supp. 21-5501(a).
In Denney, our Supreme Court stated the terms "'sexual intercourse'" and
'"sodomy'" were central to the analysis. The court explained: "[R]ape can consist of
something less than voluntary consent to penetration of the female sex organ by the male
sex organ, while aggravated criminal sodomy can consist of something less than
voluntary consent to penetration of another female bodily orifice by the male sex organ."
278 Kan. at 653. The court held the circumstances of Denney's conviction of aggravated
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criminal sodomy for penetrating his victims' anuses with his male sex organ were
"arguably indistinguishable from those . . . convicted of rape with the male sex organ."
278 Kan. at 653-54. The Supreme Court concluded the statute "should not be nullified
but rather extended to include testing for conduct like Denney's." 278 Kan. at 660.
Perales argues Denney broadly applies to mean all aggravated criminal sodomy
convictions are indistinguishable from rape convictions. The State, however,
appropriately points out not all convictions for criminal sodomy reflect the same or
similar facts—such as an aggravated criminal sodomy conviction for sexual intercourse
between a person and an animal.
Thus, we must determine whether, under the facts of this case, Perales' conviction
for aggravated criminal sodomy is arguably indistinguishable from the definition of rape,
which would give the district court authority to hear his motion for postconviction DNA
testing. Even if we assume, without deciding, Perales has shown he is entitled to DNA
testing based on his conviction for aggravated criminal sodomy for forcing his victim to
fellate him, he is still not entitled to testing under the facts of this case.
As we previously found, the district court had jurisdiction to address Perales'
motion. However, the district court also found in the alternative Perales failed to establish
his crime of conviction was indistinguishable from rape. With this alternative finding, the
district court also erred by not following the extension provided in Denney. However, the
district court was ultimately correct because, under the facts of this case, Perales fails to
satisfy the requirements of K.S.A. 2020 Supp. 21-2512(c): "The court shall order DNA
testing pursuant to a petition made under subsection (a) upon a determination that testing
may produce noncumulative, exculpatory evidence relevant to the claim of the petitioner
that the petitioner was wrongfully convicted or sentenced."
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Here, Perales is requesting DNA testing from the mouth swab taken from the
victim at the time of the forensic examination. Any evidence produced, whether negative
or positive for the presence of Perales' DNA, would be inconsequential because
undisputed trial evidence indicated the victim fellated him. At trial, the issue was whether
the contact was consensual, and the jury found it was not. Thus, the evidence would be
neither noncumulative nor exculpatory.
In addition to asking for DNA testing of the mouth swab, Perales also asks for
testing of the victim's shirt for the presence of the victim's blood. Any challenge to the
blood evidence under the facts of this case would be an attempt to attack his aggravated
battery conviction, which is clearly not a crime authorized for DNA testing under K.S.A.
2020 Supp. 21-2512(a).
We affirm the district court under the facts of this case as being right for any
reason. See State v. Overman, 301 Kan. 704, 712, 348 P.3d 516 (2015).
Affirmed.
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