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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
EZEQUIEL APOLO-ALBINO, No. 83552-1-I Respondent, DIVISION ONE v. PUBLISHED OPINION STATE OF WASHINGTON,
Petitioner.
BIRK, J. — This appeal asks what showing a claimant must make to
overcome a motion to dismiss under section .040 of the wrongly convicted persons
act (Act), chapter 4.100 RCW, where the parties dispute whether the claimant’s
former conviction was vacated “on the basis of significant new exculpatory
information.” RCW 4.100.040(1)(c)(ii). We conclude section .040 requires a
claimant to meet a burden of production to adduce evidence sufficient for a
reasonable trier of fact to find the elements of a claim under the Act by clear and
convincing evidence. Because Apolo-Albino meets this burden, we affirm the
superior court’s denial of the State’s section .040 motion and remand for further
proceedings.
I
In 2009, Apolo-Albino was convicted of two counts of child molestation. The
State presented testimony from Apolo-Albino’s children, B.G. and D.G., that he
had molested them. Apolo-Albino maintained his innocence. In April 2015, the For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83552-1-I/2
Indeterminate Sentence Review Board released Apolo-Albino on an Immigration
and Customs Enforcement detainer.
In September 2015, a referrer reported to Child Protective Services (CPS)
that D.G. had reported that a foster parent had coerced her into testifying against
her father, and that Apolo-Albino did not sexually abuse her. CPS investigated the
allegation the foster parent had committed abuse by manipulating D.G.’s and
B.G.’s testimony, and concluded the allegation was “FOUNDED,” stating, “It
appears that [the foster parent] coerced and emotionally manipulated [D.G. and
B.G.] into testifying against their father and putting him in jail for more than 6 years.”
A special prosecutor investigated, but the prosecutor opined the recantations were
not credible.
Apolo-Albino filed a CrR 7.8(b)(2) motion for relief from judgment and a new
trial based on newly discovered evidence. Apolo-Albino included over 500 pages
of documents, including recantations of the witnesses and the CPS investigation
report. The State filed a separate motion to vacate Apolo-Albino’s convictions
under CrR 7.8(b)(5) (“[a]ny other reason justifying relief”), and to dismiss the
charges under CrR 8.3(a) (dismissal by the prosecution). The State’s motion
argued the recantations were not reliable, but stated,
[T]here seems to be little to be gained from re-litigating this eight- year-old case when the defendant has served his prison sentence, the abuse was limited to over the clothes sexual touching and the victims have recanted and now claim that no molestation occurred. Given these circumstances, the State . . . moves to dismiss this case with prejudice.
2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83552-1-I/3
Apolo-Albino’s attorney responded to the State’s motion and proposed order with
a one-line e-mail stating, “We have no objection to the court signing this order.”
The superior court entered an order stating in relevant part, “[T]he State’s motion
to dismiss with prejudice is granted for the reasons stated therein.”
In September 2019, Apolo-Albino filed a claim under the Act. The State
made a statutorily described motion to dismiss the claim for failure to establish by
documentary evidence that the convictions were vacated “on the basis of
significant new exculpatory information.” RCW 4.100.040(1)(c)(ii). The superior
court denied the State’s motion. The superior court applied a “but for” test, stating,
“ ‘[B]ut for’ the new evidence put forth in the defense’s Motion for a New Trial, the
prosecutor would not have brought a motion to dismiss ‘in the interests of justice.’ ”
The State sought and this court granted discretionary review.1
II
Before we can decide whether the evidence is sufficient to meet RCW
4.100.040(1)(c)(ii), it is necessary to determine the standard according to which
1 In seeking discretionary review, the State argued among other things the
trial court erred by adopting a “ ‘but for’ ” causation standard under the Act. On review, amicus curiae, The Innocence Network, citing Mackay v. Acorn Custom Cabinetry, Inc., 127 Wn.2d 302, 310, 898 P.2d 284 (1995), argues “ ‘[T]he ‘substantial factor’ test” appropriately implements the statute. The State moved to strike in part Apolo-Albino’s answer to the amicus curiae brief of The Innocence Network, arguing Apolo-Albino did not argue “substantial factor” causation in the trial court and may not argue it for the first time on review in answer to an amicus brief. See Cummins v. Lewis County, 156 Wn.2d 844, 850-51, 133 P.3d 458 (2006) (the court will not review arguments first raised in a reply brief on appeal). The State alternatively asks that we consider its reply on this issue set forth in its motion. We deny the State’s motion to strike but we grant its alternative motion. We conclude it is unnecessary to adopt either the “but for” or “substantial factor” standard under the Act.
3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83552-1-I/4
we evaluate the evidence in a motion to dismiss under section .040 of the Act.
Apolo-Albino argues in part that the court’s role, at the section .040 motion to
dismiss stage, is to ask “if a trier of fact could find” the elements of a claim are met.
We agree.
The meaning of a statute is a question of law reviewed de novo. Dep’t of
Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4 (2002). “The court’s
fundamental objective is to ascertain and carry out the Legislature’s intent, and if
the statute’s meaning is plain on its face, then the court must give effect to that
plain meaning as an expression of legislative intent.” Id. at 9-10. This requires
“examination of the statute in which the provision at issue is found, as well as
related statutes or other provisions of the same act in which the provision is found.”
Id. at 10, 11-12. The meaning of section .040 of the Act is informed by examination
of section .060.
The Act lists six elements a claimant must establish to recover a judgment.
RCW 4.100.060(1)(a)-(e); Larson v. State, 194 Wn. App. 722, 732-33, 375 P.3d
1096 (2016). At a trial on the merits, section .060 requires the claimant establish
these elements “by clear and convincing evidence.” RCW 4.100.060(1). Section
.060 provides for consideration of certain factors in exercising “discretion regarding
the weight and admissibility of evidence.” RCW 4.100.060(3). Section .060
contemplates that claims under the Act may be tried to a jury. RCW 4.100.060(5).
Thus, at trial under section .060, the element that a claimant’s conviction was
vacated on the basis of significant new exculpatory information, like the other
elements, must be established to a specified standard of proof (clear and
4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83552-1-I/5
convincing evidence), and potentially by a jury trial. This indicates the Act views
the six elements as questions of fact.
Section .040 requires the claimant to meet the same six elements, and
additionally a statute of limitations. RCW 4.100.040(1)-(2). While section .060
describes proof of the elements as being necessary to obtain a favorable
judgment, section .040 describes its requirements as the preconditions “to file an
actionable claim.” RCW 4.100.040(1), .060(1). Section .040 lacks any standard
of proof. While lacking any specified weight the evidence must carry, section .040
requires the first four elements, including the one at issue here, be “establish[ed]
by documentary evidence.” RCW 4.100.040(1). For the last two elements, under
section .040 the claimant need only “state facts in sufficient detail for the finder of
fact to determine” them. RCW 4.100.040(2). The claimant or a personal
representative must verify the claim. RCW 4.100.040(4). Under section .040, the
court or the attorney general may make a motion to “dismiss” the claim. RCW
4.100.040(6)(a). If the court dismisses the claim, it must give reasons in written
findings of fact and conclusions of law. RCW 4.100.040(6)(b). The Act directs that
review of a dismissal is de novo. RCW 4.100.050.
Section .040 requires only a showing that a claim is “actionable.” RCW
4.100.040(1). That a claim be “actionable” is a lower threshold than certainty that
a claim will succeed. Section .040’s requirement, for two of the elements, that the
claimant merely “state facts” in sufficient detail in a verified claim, suggests the
inquiry at the .040 stage is whether the claim is supported by facts that would
support recovery if a trier of fact believes them at a trial on the merits. RCW
5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83552-1-I/6
4.100.040(2). And de novo appellate review implies that section .040 is concerned
with a burden of production, because, unlike an ultimate burden of persuasion,
whether a claimant has met a burden of production is generally determined as a
matter of law. Cornwell v. Microsoft Corp., 192 Wn.2d 403, 412, 430 P.3d 229
(2018) (sufficiency of evidence to survive summary judgment); Hill v. BCTI Income
Fund-I, 144 Wn.2d 172, 181-82, 186-87, 23 P.3d 440 (2001) (sufficiency of
evidence to support verdict), abrogated on other grounds by Mikkelsen v. Pub. Util.
Dist. No. 1, 189 Wn.2d 516, 529-32, 404 P.3d 464 (2017); State v. Arbogast, 199
Wn.2d 356, 366-67, 506 P.3d 1238 (2022) (sufficiency of evidence to submit
entrapment defense to jury).
The text and structure of the Act, and the contrasting requirements of
sections .040 and .060, indicate section .040 is concerned with the existence of
evidence sufficient to permit a trier of fact to find for the claimant at trial.2 We hold
RCW 4.100.040 establishes a burden of production, and the claimant meets this
burden if the claimant adduces evidence sufficient for a reasonable trier of fact to
find the elements of RCW 4.100.060(1) by clear and convincing evidence at trial.
III
The State argues the evidence is nevertheless insufficient for Apolo-Albino
to meet the section .040 burden by documentary evidence that his conviction was
2 We acknowledge some language potentially suggesting a different conclusion. Section .040 requires a claimant to “establish” the first four elements, and granting a motion to dismiss (but not denying one) requires “findings of fact” explaining the reasons for dismissal. RCW 4.100.040(1), (6)(b). These inconclusive signals do not overcome the indications that section .040 focuses on the existence of evidence, not its weight.
6 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83552-1-I/7
vacated on the basis of significant new exculpatory information. The State argues
the court should not look past the face of the vacatur order, and the recantations
in this case should not be viewed as exculpatory. We disagree.
A
The State argues a conclusion the vacatur was on the basis of significant
new exculpatory information is foreclosed, because the court adopted the
reasoning stated in the prosecutor’s motion and the prosecutor believed the
recantations were not reliable. The State argues the vacatur of Apolo-Albino’s
conviction was based on an “ ‘other reason’ ” under CrR 7.8(b)(5), not “newly
discovered evidence” under CrR 7.8(b)(2). But the State acknowledges the
prosecutor “referenced the recantations as one of three circumstances that led him
to conclude that little would be gained by an evidentiary hearing.” As a result, the
court’s order granting the State’s motion to dismiss “for the reasons stated therein”
relied on the recantations for at least part of the basis for the dismissal. In addition,
our decision in Larson has already indicated that it is appropriate, at a trial on the
merits under section .060, to consider in addition to the reasoning stated on the
face of a dismissal the background facts supporting it.
In Larson, the court had vacated the criminal convictions of the claimants
because of ineffective assistance of counsel, and the State had thereafter
dismissed the charges based on insufficient evidence. 194 Wn. App. at 731. This
court held the trial court erred in finding the claimants had not proven their
convictions were vacated based on significant new exculpatory information. Id. at
738. The reason for the finding of ineffective assistance was that defense counsel
7 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83552-1-I/8
at the criminal trial had neglected to present available exculpatory alibi evidence.
Id. at 737. As a result, though the vacatur referred only to ineffective assistance
of counsel, “the existence of significant new exculpatory information was the sole
basis for the criminal court’s decision to vacate the convictions.” Id. at 738. Under
Larson, a trier of fact under section .060 of the Act may consider the background
circumstances leading to a vacatur, beyond the face of the order.
This interpretation ensures the Act is available to those who can prove they
are actually innocent but lack a particularized acknowledgement of innocence
under the Criminal Rules. Such an acknowledgement may be lacking for multiple
reasons. Quoting Jacqueline McMurtrie, The Unindicted Co-Ejaculator and
Necrophilia: Addressing Prosecutors' Logic-Defying Responses to Exculpatory
DNA Results, amicus curiae Washington Innocence Project points to reported
instances of reluctance by authorities to acknowledge an erroneous criminal
judgment even in the face of compelling evidence of innocence. 105 J. CRIM. L. &
CRIMINOLOGY 853, 855 (2015) (documenting instances in which authorities sought
to “explain away” exculpatory evidence or resort to “outlandish and insidious
theories” against innocent suspects). The Act provides an avenue for claimants to
establish actual innocence independent of institutional or other limitations of the
criminal process to recognize an erroneous conviction.
B
The State argues that the recantation evidence in this case is not “significant
new exculpatory information,” and therefore cannot support Apolo-Albino’s claim
under the Act. Generally, to obtain a new trial in a criminal case based on new
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evidence, the defendant must show among other things that the new evidence is
material and would likely change the outcome at trial. State v. Williams, 96 Wn.2d
215, 222-23, 634 P.2d 868 (1981). When the new evidence is a recantation, this
inquiry focuses on whether the recantation is reliable. State v. Macon, 128 Wn.2d
784, 804, 911 P.2d 1004 (1996). Macon held a trial court did not abuse its
discretion in refusing a new trial when it concluded at a hearing that a recantation
was not reliable and so not material and not likely to change the outcome of the
case. Id. at 803. The court said recantations are inherently suspect and said
reliability must be determined in advance of the ruling on a new trial. Id. at 804.
The State says the criminal court here never ordered a new trial, so never ruled
the Macon standard was met, and so the vacatur cannot have been on the basis
of significant new exculpatory information.
The State’s argument is undercut by Larson’s holding that “significant new
exculpatory information” under the Act is broader in scope than “newly discovered
evidence” under the Criminal Rules. 194 Wn. App. at at 733-35. In Larson, the
criminal court had refused relief for newly discovered evidence, because the
neglected alibi evidence had been available at the time of the criminal trial. Id. at
730, 733. This court interpreted the Act to permit claimants to rely on new evidence
which merely had not been presented at the criminal trial. Id. at 736. Beyond this,
the Act contemplates the ultimate question of innocence will be decided at a trial
on the merits under section .060. Neither the absence of a particular proceeding
in the criminal case, nor Macon, prevents Apolo-Albino from attempting to establish
by clear and convincing evidence at a trial on the merits under section .060 that
9 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83552-1-I/10
his convictions were vacated on the basis of significant new exculpatory
information.
The determinative question is whether Apolo-Albino can point to
documentary evidence sufficient for a reasonable trier of fact to find by clear and
convincing evidence he has established the disputed element of his claim under
the Act. A CPS investigator documented that D.G. “disclosed that when she was
in [the ] foster home she was made to lie and say that her biological father sexually
abused her.” The report stated B.G. disclosed “that [the foster parent] told her
what to say about her father, that he touched her inappropriately.” In an interview
with prosecutors, D.G. explained, “she was crying and didn’t want to send her dad
to jail, but didn’t feel comfortable telling the truth because she didn’t want to get
hurt by [the foster parent]. [D.G.] said that [the foster parent] threatened her before
court that if she didn’t do ‘that’ she would hurt her.” Another parent present for
some of the original statements by D.G. and B.G. later reported, “ ‘My feeling is
that the kids were coached’ ” and described at least one other incident in which
D.G.’s and B.G.’s foster parent encouraged another child to make an accusation
of molestation. These and other statements led the CPS investigator to conclude
the foster parent manipulated D.G. and B.G. into testifying against their father.
The State has argued D.G.’s and B.G.’s new statements are nevertheless
not reliable, arguing some aspects are “demonstrably incorrect or false.” The State
pointed out D.G.’s and B.G.’s new statements describe abuse of other children,
which those children deny. The State pointed to present motives by at least D.G.
both to portray her father in a better light than was true and to retaliate against her
10 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83552-1-I/11
former foster parent based on more recent events. However, when the criminal
court vacated Apolo-Albino’s convictions, in addition to these arguments by the
State, that court was presented with the above-summarized recantations together
with the State’s own reliance on them as part of its motion to dismiss. Under the
Act, whether the vacatur was on the basis of significant new exculpatory
information is a question of fact, and there is documentary evidence sufficient for
a rational trier of fact to find in favor of Apolo-Albino on this issue by clear and
convincing evidence.
We affirm the order denying the State’s section .040 motion for the reasons
stated in this opinion and remand for further proceedings.
WE CONCUR: