State Of Washington v. Steven Lee Cook
74872-6
| Wash. Ct. App. | Jun 19, 2017Background
- Steven Lee Cook, a licensed massage therapist, was convicted by a jury of indecent liberties by forcible compulsion after a client (N.R.) alleged he touched and inserted a finger into her vagina during a massage; he was acquitted of second-degree rape.
- N.R. underwent a forensic sexual assault exam four days after the incident; four vaginal swabs were collected. N.R. had showered and used the restroom several times between the incident and the exam.
- Detective Arnett interviewed Cook; Cook admitted touching the outside of N.R.’s vagina but denied penetration. Police did not request DNA testing pretrial because investigators and the examiner believed touch DNA was unlikely to be recovered.
- After conviction, Cook filed a pro se motion for postconviction DNA testing of the vaginal swabs, arguing absence of touch DNA (or massage oil) would prove no sexual assault occurred.
- The superior court denied the motion, reasoning (1) if Cook’s DNA were found it would support guilt, and (2) if another person’s DNA were found that would not disprove nonpenetrative sexual touching, the essential element of the conviction. Cook appealed.
Issues
| Issue | Cook's Argument | State's Argument | Held |
|---|---|---|---|
| Whether postconviction DNA testing should be ordered under RCW 10.73.170(3) | Testing could show no touch DNA (or presence of another's DNA), which would more likely than not demonstrate innocence of indecent liberties by forcible compulsion | Even a favorable result (someone else’s DNA or no DNA) would not more likely than not establish innocence because Cook admitted touching the complainant’s vagina | Court affirmed denial: DNA result would not, on balance of trial evidence, show innocence on a more probable than not basis |
| Whether Cook may raise additional grounds in this appeal that were or could have been raised earlier | New or repeated issues should be considered to challenge conviction now | Issues raised or available on first appeal cannot be relitigated on second appeal; proper vehicle is a personal restraint petition | Court barred consideration of additional grounds on second appeal |
| Whether appellate costs should be awarded against Cook | Cook asked denial of appellate costs citing indigency | State may seek costs only if it shows Cook’s financial situation improved since indigency finding | Court left costs issue subject to RAP 14.2 procedures; affirmed without awarding costs now |
Key Cases Cited
- Gentry v. State, 183 Wn.2d 749 (Wash. 2015) (standard for evaluating whether DNA testing would more likely than not demonstrate innocence)
- Crumpton v. State, 181 Wn.2d 252 (Wash. 2014) (court must presume favorable DNA evidence and consider entire trial record)
- Thompson v. State, 173 Wn.2d 865 (Wash. 2012) (standards for postconviction DNA testing motions)
- Riofta v. State, 166 Wn.2d 358 (Wash. 2009) (consideration of all trial evidence when evaluating likelihood DNA would show innocence)
- Sauve v. Blodgett, 100 Wn.2d 84 (Wash. 1983) (issues that were or could have been raised on direct appeal cannot be raised again on second appeal)
- State v. St. Clare, 198 Wn. App. 371 (Wash. Ct. App. 2017) (procedures for appellate costs when prior indigency finding exists)