The Oregon Court of Appeals held that a prisoner failed to make a prima facie showing warranting post-conviction DNA testing.

Oregon first adopted a post-conviction DNA testing law in 2002. The person requesting DNA testing must: (1) submit an affidavit containing a statement that the person is actually innocent and identifying specific evidence that was secured in connection with the prosecution to be tested and a theory of defense that DNA testing would support; and (2) present a prima facie showing that (a) the identity of the perpetrator was at issue in the trial and (b) DNA testing of the specified evidence would, assuming exculpatory results, establish the actual innocence of the person. To grant relief the trial court must find that "there is a reasonable probability that the testing will produce exculpatory evidence that would establish the innocence of the person." ORS 138.692.

In 1999, Martin Romero was convicted of multiple sex crimes against his daughter, spanning about 12 years. Three years after his conviction, Romero filed a motion for DNA testing, supported by an affidavit in which he averred that he was "actually innocent."

Romero identified two sex toys that had not previously been tested for DNA evidence, asserting that DNA evidence could identify other perpetrators of the crime, including his brother, Manuel Martin. Romero also requested testing of a blue nightgown. He asserted that "an absence of his DNA, or the presence of another person's DNA (his brother's) on the nightgown would exonerate him because the victim had testified that she wore the nightgown each time she was abused  and that the nightgown  had not been washed."

The State opposed the motion, arguing that "no DNA test results could establish defendant's innocence due to the protracted nature of the abuse and the fact that the perpetrator's identity was never at issue during trial. The state explained that because the abuse went on for many years and the victim specifically identified defendant as her abuser, the trial focused on proving whether the abuse occurred as the victim described it, with defendant as the perpetrator."

The trial court denied Romero's motion, finding the evidence was totally lacking and there had been no showing how DNA evidence might exonerate Romero.

Initially, DNA testing orders were not appealable. In 2013, however, the legislature created an appellate process. It allowed appeals of orders issued before the May 16, 2013 effective date of the act, permitting Romero to appeal the 2002 order in 2013.

The Court of Appeals affirmed the trial court's order. "The issue is whether defendant made the requisite prima facie showing," the court observed. "The first fact in issue is whether the identity of the perpetrator was at issue at trial, and the second is whether DNA testing, assuming exculpatory results, would 'establish the actual innocence of the person. '” The court concluded that Romero "failed to produce enough evidence to allow the trier of fact to infer either of those facts."

The Court first found that Romero failed to present any evidence to support his argument that the perpetrator's identity had been at issue in the underlying trial. The State argued that the identity of the perpetrator was never at issue during trial.

"Because the parties presented conflicting allegations regarding that issue, defendant bore the burden of presenting some evidence that would have allowed a trier of fact to infer that the identity of the perpetrator was at issue in the underlying trial," the court explained. "Merely alluding to other potential suspects in the affidavit was not sufficient for the trial court to make the necessary inference."

The Court then explained that "contrary to defendant's approach, something more than a defendant's mere assertion of his innocence is required to make the prima facie showing required by statute."

An assessment of whether a defendant has made a prima facie showing that exculpatory DNA evidence would establish actual innocence, "necessarily requires an examination of the proceedings that led to the defendant's conviction, and . . . cannot be made on a conclusory assertion of innocence, standing alone," the Court found.

"To demonstrate actual innocence, the DNA evidence would necessarily have to cause the factfinder to have doubt about the conviction," the court concluded. "An assessment of whether doubt has been created logically requires looking at the trial evidence."

The Defendant must "establish a logical relationship between the presumed exculpatory DNA results and the defendant's theory of defense in the context of the underlying trial proceedings, as will be required for a later showing of actual innocence," the court held. Romero did not present "anything close to such a showing" and, therefore, the court could not "evaluate how or even if the proposed DNA evidence would alter a jury's assessment of reasonable doubt." See: State v. Romero, 274 Or App 590, _ P3d _ (2015).

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