State v. Romero

Under ORS 138.692 and State v. Johnson, when making a motion for DNA testing after conviction, a defendant must (1) include an affidavit asserting his innocence, identifying the evidence to be tested and putting forth a theory of defense that the DNA testing would support, and (2) make a prima facie showing of actual innocence that is more than a mere assertion of innocence.

Defendant appealed an order denying his motion for DNA testing under ORS 138.692, arguing the trial court erred when they denied his motion for failure to present a prima facie case of actual innocence. In his motion, Defendant argued that by identifying another potential perpetrator in his affidavit he had established that the identity of the perpetrator was at issue at trial, required under ORS 138.692, even though Defendant did not expressly allege in his affidavit that the identity of the perpetrator was at issue at trial. The Court explained that, under State v. Johnson, when Defendant filed his motion for DNA testing he was (1) required to include an affidavit in support of his motion asserting his innocence, identifying the evidence to be tested and putting forth a theory of defense that the DNA testing would support, and (2) make a prima facie showing of actual innocence. The Court held that merely alluding to other potential suspects in the affidavit was not sufficient for the trial court to infer the identity of the perpetrator was at issue at trial, and that more than Defendant’s mere assertion of innocence is required to make the required prima facie showing; without this, a court would not be able to assess how reasonable jurors would react to the overall record including the new DNA evidence. Affirmed.