¶14 (dissenting) — Lindsey Crumpton is entitled to postconviction DNA (deoxyribonucleic acid) testing under RCW 10.73.170 and State v. Thompson, 173 Wn.2d 865, 872-73, 271 P.3d 204 (2012) (quoting State v. Riofta, 166 Wn.2d 358, 367, 209 P.3d 467 (2009)). Therefore, I respectfully dissent.
*422¶15 The majority cites the correct rule for evaluating Crumpton’s motion: we look to whether, viewed in light of all of the evidence presented at trial, favorable DNA test results would raise the likelihood that the convicted person is innocent on a more probable than not basis. But the majority misapplies the rule, basing its decision on the strength of the evidence presented at trial and its conclusion that DNA evidence is unlikely to help Crumpton. This approach leads the majority to incorrectly deny Crumpton a postconviction DNA test.
I. Presumption op a Favorable Test
¶16 This is a horrific crime, and the evidence against Crumpton is strong. But the evidence of guilt is always strong in a motion for postconviction DNA testing because the convicted person making the motion has already been found guilty beyond a reasonable doubt. State v. Gray, 151 Wn. App. 762, 773, 215 P.3d 961 (2009). Thus, the majority’s reliance only on the strength of the evidence against Crumpton is misplaced.
¶17 To evaluate a motion for postconviction DNA testing, we cannot look to the evidence merely to determine whether it was sufficient to convict the defendant. Gray, 151 Wn. App. at 773. Instead, we look to see how the evidence stands up in the presence of a favorable DNA test. See Thompson, 173 Wn.2d at 875 & n.3; Gray, 151 Wn. App. at 773 n.9.
¶18 RCW 10.73.170(3) provides that “[t]he court shall grant” a procedurally proper motion for DNA testing if “the convicted person has shown the likelihood that the DNA evidence would demonstrate innocence on a more probable than not basis.” Our Supreme Court has already interpreted and applied this statute:
In determining whether a convicted person “has shown the likelihood that the DNA evidence would demonstrate innocence on a more probable than not basis,” a court must look to *423whether, viewed in light of all of the evidence presented at trial or newly discovered, favorable DNA test results would raise the likelihood that the person is innocent on a more probable than not basis. The 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 [convicted person] was not the perpetrator.
Riofta, 166 Wn.2d at 367-68 (emphasis added and omitted) (quoting RCW 10.73.170(3)). The court weighing this motion must presume that the DNA test results would be favorable to the convicted person’s claim of actual innocence. Riofta, 166 Wn.2d at 367-68.
¶19 Declining to make this presumption, the majority states that “finding DNA other than Crumpton’s is unlikely in light of [evidence presented at trial].”12 Majority at 420. Whether a favorable result is likely or unlikely has no part in our evaluation of Crumpton’s motion. Our obligation is to focus on whether a favorable test raises the likelihood of innocence. We are not to speculate on the results of the test.
¶20 The majority, in rejecting the Riofta presumption, additionally states that every motion for postconviction DNA testing would be granted if trial courts presume that the DNA test results would be favorable to the convicted person. I respectfully disagree. Our Supreme Court presumed favorable test results and still denied the motion in Riofta, explaining that “[n] either the absence of Riofta’s DNA nor the presence of another’s DNA on the [evidence] would raise a reasonable probability of his innocence.” 166 Wn.2d at 373. More importantly, Riofta’s articulation of the statutory standard is binding on this court.
*424II. Application op the Riofta Presumption to Crumpton’s Motion
¶21 I agree with the majority that the convicted person’s innocence is the proper focus of the court’s inquiry. Riofta, 166 Wn.2d at 369 n.4. But I disagree with the majority’s conclusion that Crumpton cannot show the likelihood that a favorable DNA test could not demonstrate his innocence on a more probable than not basis.
¶22 The majority states that “even if we assume that DNA testing would not reveal the presence of Crumpton’s DNA, the jury likely would still have convicted him based on the other overwhelming evidence admitted at trial.” Majority at 420. But we must be mindful that “the procedure for ordering DNA testing under RCW 10.73.170 is not akin to retrying the case.” Thompson, 173 Wn.2d at 873. Instead, Crumpton’s motion is a means of obtaining newly discovered evidence that could lead to a new trial, if the test results are actually favorable. Riofta, 166 Wn.2d at 368. Thus the majority’s approach is contrary to Thompson and Riofta, neither of which assessed the likelihood of a second conviction in a retrial.
¶23 Finally, I disagree with the majority’s assertion that even favorable test results would not have exonerated Crumpton. This statement is directly contrary to Thompson, 173 Wn.2d at 875. This court does not look to see whether favorable DNA test results would exonerate Crumpton, but looks only to whether favorable results would raise the likelihood that Crumpton is innocent on a more probable than not basis. Riofta, 166 Wn.2d at 367.
¶24 Here, all the evidence suggests that one rapist committed this crime. Crumpton’s motion asserts that the rapist’s DNA may be present in three types of biological evidence: the rapist’s semen found on a rectal swab and a stained bedsheet, pubic hairs recovered from the mattress, and a bloodstained handkerchief.
*425¶25 DNA testing of the semen would determine whether or not Crumpton is its source. Given that there was one rapist, a result showing that the semen belonged to a man other than Crumpton would demonstrate that Crumpton is, more probably than not, innocent of the rape.14 See Thompson, 173 Wn.2d at 875; Gray, 151 Wn. App. at 774. Further, DNA testing of the hairs and any blood on the handkerchief could show that they came from the same source as the semen. If that source is a person other than Crumpton, the test results would enhance the likelihood that Crumpton is probably innocent.
¶26 Thus, I disagree with the majority’s conclusion that even favorable test results would be unavailing to Crumpton in light of the strong circumstantial evidence against him. Instead, favorable test results would require viewing all the evidence in a different light because the evidence would no longer support an inference that Crumpton is the rapist. Though favorable results may be unexpected, postconviction DNA testing has exonerated individuals who were found guilty on the basis of eyewitness identifications,15 microscopic hair comparisons,16 and even their own inculpatory statements.17
¶27 I would reverse and order DNA testing.
Review granted at 177 Wn.2d 1015 (2013).
The majority states that Crumpton used an oily rag “to obliterate semen evidence.” Majority at 419-20. This statement lacks evidentiary or scientific support. Nothing in the record suggests that vegetable oil would obliterate semen or the DNA it contains. To the contrary, a forensic serologist testified at Crumpton’s trial to the presence of semen on the swab and bedsheet.
The majority’s statement that “even if testing identified another’s DNA, it would show only the possibility that the victim had sex with someone other than Crumpton before or after he raped her” is made without the benefit of argument by either party or a verbatim report of proceedings of the trial. Majority at 420. The information presented to us is that there was one rapist. The record is silent as to the sexual activity of the victim.
See Riofta, 166 Wn.2d at 371 (quoting Brandon L. Garrett, Judging Innocence, 108 Colum. L. Rev. 55, 60 (2008)).
Nat’l Research Council, Strengthening Forensic Science in the United States: A Path Forward 160 (2009).
In re Pers. Restraint of Bradford, 140 Wn. App. 124, 126, 165 P.3d 31 (2007) (reversing a petitioner’s convictions for first degree rape and first degree burglary in light of exculpatory DNA test results, even though the petitioner had confessed to the crimes).