RENDERED: NOVEMBER 15, 2024; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2023-CA-0503-MR
CARL LEE ADKINS APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE PATRICIA MORRIS, JUDGE ACTION NO. 12-CR-000395
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: ECKERLE, A. JONES, AND TAYLOR, JUDGES.
JONES, A., JUDGE: Carl Lee Adkins (“Adkins”), pro se, appeals from the
February 1, 2023 order of the Jefferson Circuit Court denying his motion under
Kentucky Revised Statue (KRS) 422.285 for DNA testing. After careful review,
we affirm.
I. BACKGROUND
In February 2012, Adkins was indicted on one count of first-degree
sodomy and one count of second-degree burglary. Record (R.) at 1-2. It was alleged that, in 2007, a man entered the room of a six-year-old girl where she was
sleeping with her mother, carried the girl into a different room, and assaulted her.
Video Record (“VR”) 3/6/2013 at 11:34:14-11:40:53. The girl was unable to
identify the perpetrator, but knew he was African American. Id. The perpetrator
left once the girl’s mother called out to her. Id.
In 2013, during Adkins’ jury trial, a forensic scientist from the state
crime lab gave expert testimony that a swab of dried secretions from the girl’s
groin tested positive for saliva. VR 3/6/2013 at 12:33:34-12:37:50. The testing on
that swab resulted in a DNA profile consistent with the girl and Adkins’ DNA at
11 of 13 loci. VR 3/6/2013 at 3:29:10-3:34:30. The test results from the other two
loci that were tested were inconclusive. VR 3/6/2013 at 3:33:13. Additionally,
hairs were found on the comforter taken from the girl’s bed. VR 3/6/2013 at
12:42:41. The hairs were not tested, as the scientist testified, because a hair
comparison generally does not indicate that a specific hair belonged to a specific
person. VR 3/6/2013 at 12:42:54-12:49:20. The scientist could not say whether a
hair analysis could be exculpatory. VR 3/6/2013 at 12:49:30.
Adkins was convicted of the lesser-included offense of first-degree
sexual abuse and second-degree burglary. Record (“R.”) at 127-129. Adkins was
sentenced to twenty-years’ imprisonment total. Id. Adkins’ conviction and
-2- sentence were affirmed by the Supreme Court of Kentucky on direct appeal.1 In
2017, Adkins filed a motion pursuant to Kentucky Rule of Criminal Procedure
(“RCr”) 11.42, alleging his counsel was ineffective. R. at 170. The motion was
denied. Adkins appealed the denial to this Court. We affirmed the trial court’s
denial of the RCr 11.42 motion.2 On December 19, 2022, Adkins filed a motion
with the trial court asking for additional DNA testing. R. at 370. The trial court
denied the motion on February 1, 2023. R. at 411. This appeal follows.
II. STANDARD OF REVIEW
We review the trial court’s order denying Adkins’ motion for
additional DNA testing for an abuse of discretion. Moore v. Commonwealth, 357
S.W.3d 470, 492 (Ky. 2011). A trial court abuses its discretion when it makes a
decision that is “arbitrary, unreasonable, unfair, or unsupported by sound legal
principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). The
trial court’s decision will be affirmed unless there is a showing of a “flagrant
miscarriage of justice.” Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky.
1983).
1 Adkins v. Commonwealth, No. 2013-SC-000460-MR, 2014 WL 2810040 (Ky. Jun. 19, 2014). 2 Adkins v. Commonwealth, No. 2017-CA-001585-MR, 2020 WL 1330197 (Ky. App. Mar. 20, 2020).
-3- III. ANALYSIS
On appeal, Adkins argues that, pursuant to KRS 422.285, he is
entitled to post-conviction DNA testing on the hairs recovered from the comforter.
KRS 422.285 is “a special exception to the rule of finality of judgments,” granting
particular “felons the right to post-conviction DNA testing of certain evidence.”
Owens v. Commonwealth, 512 S.W.3d 1, 7 (Ky. App. 2017). However, before
granting relief, a trial court must determine that the petitioner meets the specific
requirements in KRS 422.285. Id. KRS 422.285 requires the trial court to
determine the availability of relief the petitioner seeks by analyzing the following:
the specific factual averments the petitioner makes in support of his petition (KRS
422.285(2)); the petitioner must have been convicted of particular offenses (KRS
422.285(1)(a)); the petitioner must be incarcerated or under correctional
supervision (KRS 422.285(5)(f) and (6)(f)); and, the petitioner must demonstrate
the evidence at issue is available and has not previously been subjected to DNA
testing (KRS 422.85(5)(b)-(c), (6)(b)-(c)). Owens, 512 S.W.3d at 7. In the present
case, Adkins and his petition demonstrate the above preliminary requirements.
“If the petition meets the requirements of the statute, and if the
petitioner is among the class of persons intended to be granted this statutory right,
and if the evidence the petitioner seeks to have tested otherwise qualifies for
testing,” the trial court must then determine if there is “a reasonable probability
-4- that the DNA evidence the petitioner seeks would have made a difference had it
been available at or before trial[.]” Id. at 10. First, under KRS 422.285(5)(a), the
trial court must determine, if taking as true the DNA testing result predictions of
the petitioner, whether “[a] reasonable probability exists that the petitioner would
not have been prosecuted or convicted” if the evidence had been available before
or during trial. KRS 422.285(5)(a); Owens, 512 S.W.3d at 10. If the trial court
cannot come to this conclusion, it must then analyze reasonable probability under
KRS 422.285(6)(a). Owens, 512 S.W.3d at 10-11.
The trial court may order DNA testing if it determines a reasonable
probability exists that either:
1. The petitioner’s verdict or sentence would have been more favorable if the results of DNA testing and analysis had been available at the trial leading to the judgment of conviction; or
2. DNA testing and analysis will produce exculpatory evidence[.]
KRS 422.285(6)(a)1., 2. Otherwise, if the court determines that there is no
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RENDERED: NOVEMBER 15, 2024; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2023-CA-0503-MR
CARL LEE ADKINS APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE PATRICIA MORRIS, JUDGE ACTION NO. 12-CR-000395
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: ECKERLE, A. JONES, AND TAYLOR, JUDGES.
JONES, A., JUDGE: Carl Lee Adkins (“Adkins”), pro se, appeals from the
February 1, 2023 order of the Jefferson Circuit Court denying his motion under
Kentucky Revised Statue (KRS) 422.285 for DNA testing. After careful review,
we affirm.
I. BACKGROUND
In February 2012, Adkins was indicted on one count of first-degree
sodomy and one count of second-degree burglary. Record (R.) at 1-2. It was alleged that, in 2007, a man entered the room of a six-year-old girl where she was
sleeping with her mother, carried the girl into a different room, and assaulted her.
Video Record (“VR”) 3/6/2013 at 11:34:14-11:40:53. The girl was unable to
identify the perpetrator, but knew he was African American. Id. The perpetrator
left once the girl’s mother called out to her. Id.
In 2013, during Adkins’ jury trial, a forensic scientist from the state
crime lab gave expert testimony that a swab of dried secretions from the girl’s
groin tested positive for saliva. VR 3/6/2013 at 12:33:34-12:37:50. The testing on
that swab resulted in a DNA profile consistent with the girl and Adkins’ DNA at
11 of 13 loci. VR 3/6/2013 at 3:29:10-3:34:30. The test results from the other two
loci that were tested were inconclusive. VR 3/6/2013 at 3:33:13. Additionally,
hairs were found on the comforter taken from the girl’s bed. VR 3/6/2013 at
12:42:41. The hairs were not tested, as the scientist testified, because a hair
comparison generally does not indicate that a specific hair belonged to a specific
person. VR 3/6/2013 at 12:42:54-12:49:20. The scientist could not say whether a
hair analysis could be exculpatory. VR 3/6/2013 at 12:49:30.
Adkins was convicted of the lesser-included offense of first-degree
sexual abuse and second-degree burglary. Record (“R.”) at 127-129. Adkins was
sentenced to twenty-years’ imprisonment total. Id. Adkins’ conviction and
-2- sentence were affirmed by the Supreme Court of Kentucky on direct appeal.1 In
2017, Adkins filed a motion pursuant to Kentucky Rule of Criminal Procedure
(“RCr”) 11.42, alleging his counsel was ineffective. R. at 170. The motion was
denied. Adkins appealed the denial to this Court. We affirmed the trial court’s
denial of the RCr 11.42 motion.2 On December 19, 2022, Adkins filed a motion
with the trial court asking for additional DNA testing. R. at 370. The trial court
denied the motion on February 1, 2023. R. at 411. This appeal follows.
II. STANDARD OF REVIEW
We review the trial court’s order denying Adkins’ motion for
additional DNA testing for an abuse of discretion. Moore v. Commonwealth, 357
S.W.3d 470, 492 (Ky. 2011). A trial court abuses its discretion when it makes a
decision that is “arbitrary, unreasonable, unfair, or unsupported by sound legal
principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). The
trial court’s decision will be affirmed unless there is a showing of a “flagrant
miscarriage of justice.” Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky.
1983).
1 Adkins v. Commonwealth, No. 2013-SC-000460-MR, 2014 WL 2810040 (Ky. Jun. 19, 2014). 2 Adkins v. Commonwealth, No. 2017-CA-001585-MR, 2020 WL 1330197 (Ky. App. Mar. 20, 2020).
-3- III. ANALYSIS
On appeal, Adkins argues that, pursuant to KRS 422.285, he is
entitled to post-conviction DNA testing on the hairs recovered from the comforter.
KRS 422.285 is “a special exception to the rule of finality of judgments,” granting
particular “felons the right to post-conviction DNA testing of certain evidence.”
Owens v. Commonwealth, 512 S.W.3d 1, 7 (Ky. App. 2017). However, before
granting relief, a trial court must determine that the petitioner meets the specific
requirements in KRS 422.285. Id. KRS 422.285 requires the trial court to
determine the availability of relief the petitioner seeks by analyzing the following:
the specific factual averments the petitioner makes in support of his petition (KRS
422.285(2)); the petitioner must have been convicted of particular offenses (KRS
422.285(1)(a)); the petitioner must be incarcerated or under correctional
supervision (KRS 422.285(5)(f) and (6)(f)); and, the petitioner must demonstrate
the evidence at issue is available and has not previously been subjected to DNA
testing (KRS 422.85(5)(b)-(c), (6)(b)-(c)). Owens, 512 S.W.3d at 7. In the present
case, Adkins and his petition demonstrate the above preliminary requirements.
“If the petition meets the requirements of the statute, and if the
petitioner is among the class of persons intended to be granted this statutory right,
and if the evidence the petitioner seeks to have tested otherwise qualifies for
testing,” the trial court must then determine if there is “a reasonable probability
-4- that the DNA evidence the petitioner seeks would have made a difference had it
been available at or before trial[.]” Id. at 10. First, under KRS 422.285(5)(a), the
trial court must determine, if taking as true the DNA testing result predictions of
the petitioner, whether “[a] reasonable probability exists that the petitioner would
not have been prosecuted or convicted” if the evidence had been available before
or during trial. KRS 422.285(5)(a); Owens, 512 S.W.3d at 10. If the trial court
cannot come to this conclusion, it must then analyze reasonable probability under
KRS 422.285(6)(a). Owens, 512 S.W.3d at 10-11.
The trial court may order DNA testing if it determines a reasonable
probability exists that either:
1. The petitioner’s verdict or sentence would have been more favorable if the results of DNA testing and analysis had been available at the trial leading to the judgment of conviction; or
2. DNA testing and analysis will produce exculpatory evidence[.]
KRS 422.285(6)(a)1., 2. Otherwise, if the court determines that there is no
reasonable probability that DNA testing results would produce a favorable verdict,
sentence, or exculpatory evidence, then the trial court shall dismiss the petition.
Id. at 11. KRS 422.285(5)(a) (emphasis added). The trial court must assume the
evidence will be favorable to the petitioner when completing its reasonable
probability analysis. Bowling v. Commonwealth, 357 S.W.3d 462, 468 (Ky. 2010).
-5- Adkins argues that the trial court failed to make the prerequisite
determinations that Adkins was the type of person to benefit from KRS 422.285.
After reviewing the record, the trial court implicitly followed the analysis
described in Owens, and correctly applied the reasonable probability standard. The
trial court determined that there was no reasonable probability that the evidence
Adkins seeks to have tested would have produced a favorable verdict, sentence, or
exculpatory evidence. After reviewing the record and law, we agree.
Adkins fails to support his argument with an explanation as to how
testing the hairs found on the comforter (or any other evidence not previously
tested) would result in a favorable verdict, sentence, or any exculpatory evidence.
He broadly contends that DNA testing of the hairs would change the outcome of
his trial; however, he fails to explain how. This Court previously determined in a
prior appeal that not introducing evidence of the hairs at Adkins’ trial or cross-
examining the scientific expert about the hairs was a specific strategy taken by
Adkins’ attorney. R. at 251-255. Furthermore, the scientific expert testified that
he could not say whether or not the hairs would provide results favorable to Adkins
or any exculpatory evidence. Id. The Kentucky Supreme Court previously came
to this same conclusion in Wilson v. Commonwealth, 381 S.W.3d 180, 190 (Ky.
2012), where the Court held that the DNA results from hairs found inside a vehicle
would only, at most, show that other people had been inside the car which is not
-6- exculpatory evidence. Wilson, 381 S.W.3d at 190. The same framework can be
applied here because the house where the comforter was taken from had multiple
people living in it at the time of the burglary and sexual assault. VR at 10:47:10,
11:16:30, 11:18:20, 11:19:20. Adkins has not provided any explanation as to how
the DNA testing results of the hairs would be favorable to him at the time of his
trial or judgment of conviction; there is also no explanation of how testing the hairs
would provide exculpatory evidence. Even if the hairs were proven to belong to
someone other than Adkins, the fact would remain that Adkins’ DNA was found
on the victim’s groin area. The hair evidence would not exclude Adkins being the
source of that DNA. Therefore, the trial court did not abuse its discretion when it
denied Adkins’ motion for DNA testing.
IV. CONCLUSION
For the foregoing reasons, the Jefferson Circuit Court’s February 1,
2023 order is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Carl Lee Adkins, pro se Russell Coleman Eddyville, Kentucky Attorney General of Kentucky
Christopher Henry Assistant Attorney General Frankfort, Kentucky
-7-