State v. Hernandez , 303 Kan. 609 ( 2016 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 108,684
STATE OF KANSAS,
Appellee,
v.
FELIPE D. HERNANDEZ,
Appellant.
SYLLABUS BY THE COURT
1.
The propriety of a district court's denial of an inmate's motion for forensic
deoxyribonucleic acid (DNA) testing pursuant to K.S.A. 21-2512, which is based upon a
nonevidentiary hearing, is a question of law subject to unlimited review.
2.
An inmate in state custody after a conviction for rape, who states a belief that
biological material exists that can be tested for DNA, which allegation is not contested by
the State, is qualified to petition for such DNA testing, so long as the alleged biological
material (1) is related to the investigation or prosecution that resulted in the conviction;
(2) is in the actual or constructive possession of the State; and (3) was not previously
subjected to DNA testing or can be subjected to retesting with new DNA techniques that
provide a reasonable likelihood of more accurate and probative results.
3.
The court shall order DNA testing pursuant to a petition made under K.S.A. 21-
2512(a) if it determines that testing may produce noncumulative, exculpatory evidence
relevant to the claim of the petitioner that the petitioner was wrongfully convicted or
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sentenced. K.S.A. 21-2512 does not require the petitioner to show with certainty that the
testing will produce noncumulative, exculpatory evidence; the statute does not require the
petitioner to make specific allegations as to precisely how the DNA testing will produce
noncumulative, exculpatory evidence; nor does the statute require the introduction of any
DNA evidence at petitioner's trial.
4.
Evidence is exculpatory if it tends to disprove a fact in issue which is material to
guilt or punishment. Defining exculpatory evidence is not a function of weighing the
evidence. Evidence may be exculpatory without being definitively exonerating.
5.
The determination of whether there is a substantial question of petitioner's
innocence is not a precursor to ordering DNA testing under K.S.A. 21-2512(c), but rather
that determination is appropriate upon the receipt of inconclusive test results, as set forth
in K.S.A. 21-2512(f)(3).
Review of the judgment of the Court of Appeals in an unpublished opinion filed November 8,
2013. Appeal from Sedgwick District Court; ANTHONY J. POWELL, judge. Opinion filed January 15,
2016. Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district
court is reversed and remanded with directions.
Janine Cox, of Kansas Appellate Defender Office, argued the cause and was on the brief for
appellant.
Julie A. Koon, assistant district attorney, argued the cause, and Marc Bennett, district attorney,
and Derek Schmidt, attorney general, were with her on the brief for appellee.
The opinion of the court was delivered by
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JOHNSON, J.: Felipe D. Hernandez appeals the district court's denial of his K.S.A.
21-2512 petition for postconviction DNA testing. Because we hold that Hernandez
satisfied his initial burden under K.S.A. 21-2512(a) and (c), we reverse and remand for a
hearing utilizing the correct legal standards.
FACTUAL AND PROCEDURAL OVERVIEW
In 2003, a jury found Hernandez guilty of one count of rape, two counts of
aggravated criminal sodomy, one count of domestic battery, two counts of criminal
threat, and one count of aggravated battery. The jury found Hernandez not guilty on a
third count of aggravated criminal sodomy. The rape, aggravated criminal sodomy, and
aggravated battery victim was Hernandez' then 13-year-old daughter, C.H.
C.H.'s sexual abuse allegations came to light as the result of a series of violent
episodes in the Hernandez home, commencing on a Friday evening. Hernandez
confronted C.H. about two absences from school, and, when C.H. refused to explain the
absences, Hernandez hit her multiple times. When Hernandez' wife, Maria, tried to
intervene, Hernandez hit her. Eventually, C.H. said she missed school to spend time with
her boyfriend. Later that evening, Hernandez hit C.H. again and threatened to kill C.H.
and Maria. C.H. asked Maria not to go to work the next day, explaining that when Maria
went to work on Saturdays, Hernandez sexually abused her.
The following morning, C.H.'s older sister, Brenda, called the police because
Hernandez was hitting and threatening to kill her, Maria, and C.H. The police arrived and
took Hernandez into custody. The police called an ambulance to take C.H. to a hospital.
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Detective Loren Johnson of the Wichita Police Department's Exploited and
Missing Children's Unit was in charge of Hernandez' case. The detective met with C.H. at
the hospital, where she told him that Hernandez had physically and sexually abused her.
Detective Johnson then began recording the interview.
Detective Johnson submitted a sworn affidavit detailing the interview, in which
C.H. told him that Hernandez had been sexually assaulting her for a year and a half. C.H.
said the sexual assaults included sexual touching, Hernandez placing his mouth on C.H.'s
vagina, C.H. placing her mouth on Hernandez' penis, and Hernandez placing his penis
inside her vagina and buttocks. C.H. said the assaults took place in her bedroom and on
Hernandez' bed. The affidavit further recited that "CH believed Felipe had intercourse
with her at least seven (7) times total." She said the last incident of penile-vaginal
penetration occurred 2 weeks prior to the interview, in her bedroom, and that Hernandez
had worn a condom. C.H. explained that Hernandez kept condoms in his vehicle.
A cassette audiotape of Detective Johnson's interview with C.H. was admitted into
evidence and played for the jury, but it is not included in the record on appeal. Detective
Johnson's trial testimony related that C.H. stated that the last sexual assault took place
approximately 2 weeks prior to the interview and occurred in C.H.'s bed.
C.H. told her doctor that Hernandez had sexually abused her for the past year and
a half. But she also related that she had engaged in intercourse with her boyfriend. The
doctor testified that C.H.'s pelvic exam did not reveal any signs of trauma; however, the
exam was consistent with the history C.H. provided.
Maria gave the police permission to search the family's home. During that search,
a crime scene investigator (CSI) collected one sheet from C.H.'s bed, towels from C.H.'s
room, and bedding from the master bedroom, where Maria and Hernandez slept. The CSI
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did not use a UV light when processing the bedrooms, but she folded C.H.'s sheet inward
so as to not lose any potential evidence. Detective Johnson testified that, because the last
incident of sexual assault was 2 weeks earlier and Hernandez wore a condom, the police
did not submit the bedding for DNA testing.
The police obtained a search warrant for Hernandez' truck and found an opened
condom box containing one unused condom. Maria testified that she and Hernandez did
not use condoms.
At trial, C.H. testified Hernandez began sexually abusing her when she was 13
years old, explaining that the abuse included sexual touching, Hernandez touching her
vagina with his mouth three to four times in her bedroom, and Hernandez inserting his
penis into her "bottom" two to four times without using a condom. C.H. related details
about a specific instance of penile-anal penetration in her sister's bedroom. She said the
first time Hernandez inserted his penis into her vagina, they were on her bed and
Hernandez used a condom. She did not discuss other specific instances of penile-vaginal
penetration. Nevertheless, she said Hernandez "never conserved any condoms that he
used," which implies more than one act of penile-vaginal penetration occurred. C.H. said
Hernandez would flush used condoms down the toilet.
Hernandez did not testify in his own defense. In closing argument, defense counsel
admitted Hernandez hit C.H. and asserted C.H. fabricated the sexual abuse allegations
against Hernandez to stop the physical abuse. As previously noted, the jury found
Hernandez guilty of rape, battery, aggravated battery, and two counts each of aggravated
criminal sodomy and criminal threat, but acquitted him on a third count of aggravated
criminal sodomy.
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Hernandez directly appealed his convictions, claiming, inter alia, that insufficient
evidence supported his rape and aggravated criminal sodomy convictions. State v.
Hernandez, No. 91,434, 2005 WL 81492 (Kan. App.) (unpublished opinion), rev. denied
279 Kan. 1008 (2005). The Court of Appeals recognized that the State's case against
Hernandez "rest[ed] mainly on the credibility of the witnesses." 2005 WL 81492, at *3.
Nevertheless, the panel held that viewing the evidence in the light most favorable to the
State, "[t]he evidence was more than adequate" to find Hernandez guilty beyond a
reasonable doubt. 2005 WL 81492, at *3.
Following his direct appeal, Hernandez filed a K.S.A. 60-1507 motion, claiming
he never agreed to a guilt-based defense on his aggravated battery charge. The Court of
Appeals affirmed the district court's denial of Hernandez' motion. Hernandez v. State,
No. 99,921, 2009 WL 1858244 (Kan. App. 2009) (unpublished opinion), rev. denied 290
Kan. 1093 (2010).
In 2011, Hernandez filed a pro se petition, pursuant to K.S.A. 21-2512, seeking
postconviction forensic DNA testing of (1) blankets and sheets, (2) towels, and (3) a box
of new condoms. The State's response enumerated the charges against Hernandez and
cited to Detective Johnson's affidavit and the CSI's report in discussing the sexual abuse
allegations and investigation. The State confirmed that the items enumerated in
Hernandez' petition "appear to have remained in the custody of the Wichita Police
Department to the present."
The district court appointed counsel to represent Hernandez and conducted a
nonevidentiary hearing, after which the district court denied the petition. The Court of
Appeals affirmed the district court. State v. Hernandez, No. 108,684, 2013 WL 5976061
(Kan. App. 2013) (unpublished opinion). We granted Hernandez' petition for review.
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CRITERIA FOR POSTCONVICTION DNA TESTING UNDER K.S.A. 21-2512
Hernandez argues on appeal that the district court read the provisions of K.S.A.
21-2512 and accompanying caselaw too narrowly when it denied his motion on the facts
of this case. Specifically, he argues the district court erred in denying the motion to test
C.H.'s and Hernandez' bedding.
Standard of Review
The district court's denial of a K.S.A. 21-2512 motion for DNA testing after a
nonevidentiary hearing is a question of law subject to unlimited review. See State v.
Johnson, 299 Kan. 890, 892, 327 P.3d 421 (2014).
Analysis
First, we need to clarify the items upon which Hernandez seeks testing. The Court
of Appeals stated that, "[a]s he did in the district court, Hernandez limits his arguments
on appeal to the DNA testing of the sheets." Hernandez, 2013 WL 5976061, at *1. But
Hernandez' petition to the district court, even as it may have been narrowed by his brief
on appeal, is sufficient to preserve his claim that DNA testing should have been
conducted on C.H.'s sheet, Hernandez' sheets, and Hernandez' comforter.
With these items in mind, we turn to the language of K.S.A. 21-2512, which
provides the procedure for the district court to follow upon receiving a petition for DNA
testing, to-wit:
"(a) Notwithstanding any other provision of law, a person in state custody, at any
time after conviction for murder as defined by K.S.A. 21-3401, and amendments thereto,
or for rape as defined by K.S.A. 21-3502, and amendments thereto, may petition the court
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that entered the judgment for forensic DNA testing (deoxyribonucleic acid testing) of any
biological material that:
(1) Is related to the investigation or prosecution that resulted in the conviction;
(2) is in the actual or constructive possession of the state; and
(3) was not previously subjected to DNA testing, or can be subjected to retesting
with new DNA techniques that provide a reasonable likelihood of more accurate and
probative results.
"(b)(1) The court shall notify the prosecuting attorney of a petition made under
subsection (a) and shall afford the prosecuting attorney an opportunity to respond.
(2) Upon receiving notice of a petition made under subsection (a), the
prosecuting attorney shall take such steps as are necessary to ensure that any remaining
biological material that was secured in connection with the case is preserved pending the
completion of proceedings under this section.
"(c) The court shall order DNA testing pursuant to a petition made under
subsection (a) upon a determination that testing may produce noncumulative, exculpatory
evidence relevant to the claim of the petitioner that the petitioner was wrongfully
convicted or sentenced.
....
"(e) The court may at any time appoint counsel for an indigent applicant under
this section."
Under the plain language of the statute, we need go no further than to simply
observe that Hernandez met the first qualification for testing because he was in state
custody after a conviction for rape.
The statute then recites that the qualifying inmate can petition for DNA testing "of
any biological material." K.S.A. 21-2512(a). There is an apparent split of authority in our
Court of Appeals on whether this means that a petitioner bears the burden to prove the
existence of biological material on the items to be tested, i.e., whether an inmate is
entitled to a test to establish the absence of any biological material. Compare State v.
Lingenfelter, No. 105,551, 2012 WL 687836, at *2 (Kan. App. 2012) (unpublished
8
opinion) ("In short, to proceed under K.S.A. 21-2512, the petitioner must point to some
information at the very least indicating there is biological material to be tested."), rev.
denied 296 Kan. 1133 (2013); with State v. Smith, 34 Kan. App. 2d 368, 372, 119 P.3d
679 (holding petitioner's failure to claim collection of biological evidence not fatal
because "criminal defendant—especially one whose case is resolved by a guilty plea—
may remain unaware of the extent, if any, that biological evidence has been collected and
may be available for testing"), rev. denied 280 Kan. 990 (2005).
But we need not resolve that question here. Hernandez' petition recited that the
items to be tested were "believed to contain biological material." The State's response did
not refute the existence of biological material, but rather it noted that the CSI's report
indicated possible DNA evidence on C.H.'s sheet and Hernandez' comforter. Moreover, at
the jury trial, the CSI did not dispute defense counsel's assertion that there was a potential
for DNA on the collected items. Accordingly, we move on to the next steps in the
process.
When a qualified inmate requests DNA testing on biological material, the statute
lays out three initial steps the district court is to follow:
"(1) notify the prosecuting attorney that a petition has been made under K.S.A. 21-
2512(a); (2) determine whether the biological material sought to be tested qualifies for
testing under K.S.A. 21-2512(a)(1)-(3); and (3) determine whether testing may produce
noncumulative, exculpatory evidence relevant to the petitioner's claim of wrongful
conviction or sentencing. In performing the second and third steps, the district court must
assess whether to appoint counsel for an indigent applicant, as provided by K.S.A. 21-
2512(e), and whether an evidentiary hearing is required." State v. Lackey, 295 Kan. 816,
820-21, 286 P.3d 859 (2012).
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The district court completed step one, as evidenced by the State's response to
Hernandez' petition.
Under the second step of determining whether the biological material qualifies for
testing,
"[t]he statute merely requires the prisoner to allege that the evidence is related to the
investigation or prosecution of his or her conviction [subsection (a)(1)], that the State has
possession or constructive possession of the evidence [subsection (a)(2)], and that the
evidence was not previously subjected to DNA testing or that it could be tested using new
DNA testing techniques [subsection (a)(3)]." Bruner v. State, 277 Kan. 603, 606, 88 P.3d
214 (2004).
We have held that subsection (a)(1) "is to be read broadly to include any material related
to either the investigation or the prosecution; it is not limited to the evidence that was
actually introduced at trial." Lackey, 295 Kan. at 821 (citing Wimbley v. State, 292 Kan.
796, 810, 275 P.3d 35 [2011]). Hernandez easily clears this hurdle, as the bedding was
seized from Hernandez' home during the investigation of C.H.'s abuse allegations.
Likewise, Hernandez also has no trouble with subsection (a)(2), as the State's
response to the petition reported that the items on which Hernandez requested testing
"appear to . . . remain[] in the custody of the Wichita Police Department." And under
subsection (a)(3), the district court found no indication that the evidence had been
previously submitted for DNA testing.
The contested issue in this case is under step three, statutory subsection (c), which
provides: "The court shall order DNA testing pursuant to a petition made under
subsection (a) upon a determination that testing may produce noncumulative, exculpatory
evidence relevant to the claim of the petitioner that the petitioner was wrongfully
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convicted or sentenced." K.S.A. 21-2512(c). In challenging the petition in the district
court, the State asked the court to summarily deny the testing because there was no
reasonable likelihood that Hernandez' DNA would be found on the sheets because the
victim testified that Hernandez always used a condom when he raped her. Therefore, an
absence of Hernandez' DNA would not provide a reasonable basis to believe that the jury
would not have found him guilty. Additionally, the State asserted that, "if we were to do
the testing, most likely what we would find is his DNA and her DNA."
The State's first argument—that there was no reasonable likelihood of finding
Hernandez' DNA on the sheets—was both factually and legally infirm. Factually, the
alleged sexual intercourse with a condom was not the only type of sexual abuse that C.H.
alleged. She testified that Hernandez touched her vagina with his mouth in her bedroom
three to four times. C.H. also said Hernandez performed anal intercourse without a
condom on two to four occasions, and she only explicitly tied one of the acts to a specific
location (her sister's bedroom). Moreover, we have recognized that biological material
other than semen may be present on items sought to be tested which may produce
exculpatory DNA evidence. See, e.g., State v. Rodriguez, 302 Kan. 85, 88, 350 P.3d 1083
(2015) (discussing DNA testing on semen, blood, saliva, and hair; noting that crime lab
analyst explained "the mouth and vagina slough a significant amount of cellular
material"). Further, Hernandez is not the only person whose DNA, or lack thereof, may
have provided exculpatory evidence, as discussed below.
Legally, the State suggests that the statute requires the petitioner to show with
certainty that the requested testing will produce noncumulative exculpatory evidence. But
that is not the standard. K.S.A. 21-2512(c) says that "[t]he court shall order DNA testing"
if the "testing may produce noncumulative, exculpatory evidence." (Emphasis added.)
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In the same vein, the State's other arguments—that the absence of Hernandez'
DNA would not have changed the verdict and that the most likely result of testing would
be to find the inculpatory circumstance of revealing both Hernandez' and C.H.'s DNA
together—invited the district court to apply an incorrect standard with regard to testing.
In Lackey, we attempted to explain the standard as follows:
"[W]e previously, and rather explicitly, rejected the notion of defining exculpatory
evidence under K.S.A. 21-2512(c) as being a function of weighing evidence. See Bruner,
277 Kan. at 606 (plain statutory language does not limit DNA testing to cases where
evidence not overwhelming). In the context of a prosecutor's obligation to disclose
exculpatory evidence, we have said that '"[e]vidence is exculpatory if it tends to disprove
a fact in issue which is material to guilt or punishment."' State v. Aikins, 261 Kan. 346,
382, 932 P.2d 408 (1997) (quoting State v. Carmichael, 240 Kan. 149, 153, 727 P.2d 918
[1986]). Additionally, Black's Law Dictionary 637 (9th ed. 2009) defines exculpatory
evidence as '[e]vidence tending to establish a criminal defendant's innocence.' (Emphasis
added.) Finally, and most compelling, Haddock v. State, 295 Kan. 738, 759, 286 P.3d 837
(2012), specifically acknowledged that evidence may be exculpatory without being
exonerating." 295 Kan. at 823.
Likewise, the State's argument asked the district court to jump ahead in the
process, essentially conflating the determination of whether to order testing with the
determination of what the jury would likely do with the test results. As we explained in
Lackey:
"Under [subsection (f) of K.S.A. 21-2512], the district court may well be called upon to
weigh the evidence to make a 'probabilistic determination about what reasonable,
properly instructed jurors would do' with the new evidence in light of the totality of the
circumstances. Haddock, 295 Kan. at 769. But the statute does not contemplate that
exercise of discretion in determining whether to order the testing in the first instance."
295 Kan. at 824.
12
Hernandez' counsel did not point out to the district court that the State was arguing
for the application of an incorrect legal standard. To the contrary, defense counsel
contributed to the misdirection of the court by emphasizing that the prosecution had not
presented any DNA evidence at the trial and by advising the court that his client had not
responded to counsel's request for an explanation as to what Hernandez was hoping to
show through the testing.
In summarily denying the testing request, the district court relied on both
propositions, i.e., that no DNA evidence was presented at trial and that Hernandez did not
provide his counsel with a specific explanation as to how the DNA testing would produce
noncumulative exculpatory evidence. Both reasons are refuted by our holdings in Bruner.
With respect to the absence of DNA evidence at trial, Bruner opined that the statute
required testing, even where the trial evidence was circumstantial and where "no part of
the circumstantial evidence [was] biological." 277 Kan. at 606; see also Wimbley, 292
Kan. at 810 (holding the district court erred in finding that defendant could not obtain
testing of biological material because the State had not presented that evidence at trial).
With respect to Hernandez' failure to provide his counsel with an explanation of
how the DNA testing would produce noncumulative exculpatory evidence, the district
court apparently overlooked the following from Bruner:
"K.S.A. 2003 Supp. 21-2512 does not require the prisoner to make specific
allegations regarding how the DNA testing would produce noncumulative, exculpatory
evidence. The statute merely requires the prisoner to allege that the evidence is related to
the investigation or prosecution of his or her conviction, that the State has possession or
constructive possession of the evidence, and that the evidence was not previously
subjected to DNA testing or that it could be tested using new DNA testing techniques.
K.S.A. 2003 Supp. 21-2512(a).
....
13
"We find that Bruner's failure to include specific assertions regarding what
noncumulative, exculpatory evidence would be produced is not fatal to his request for
DNA testing.
"We conclude that under the facts before us, the district court should have
appointed counsel and conducted an evidentiary hearing. While some aspects of K.S.A.
2003 Supp. 21-2512 might allow a 'fishing expedition,' we must conclude such an
expedition is one the legislature has concluded is worth conducting. Presently, the
requirements of K.S.A. 2003 Supp. 21-2512(a) will limit the hearing's scope, and a
request for DNA testing will be determined on a case-by-case basis." 277 Kan. at 606.
See also Lackey, 295 Kan. at 824 ("The district court is charged with the responsibility of
assessing the exculpatory and cumulative nature of each item proposed to be tested.").
That responsibility is not fulfilled by unsupported statements, such as declaring that long-
term inmates with "time on their hands" are "throwing up mud up against the wall and
hoping something sticks" and that an inmate "sees in the statute that he's got some right to
DNA testing, so it doesn't cost him anything to ask for it."
In short, the district court applied incorrect legal standards by requiring that DNA
had to have been proffered by the State at trial and requiring the petitioner to make
specific allegations as to how DNA testing would provide noncumulative exculpatory
evidence. It should have restricted its analysis to the question of whether the "testing may
produce noncumulative, exculpatory evidence relevant to the claim of the petitioner that
the petitioner was wrongfully convicted or sentenced." K.S.A. 21-2512(c).
Moreover, as Hernandez points out, the district court's reliance on Smith to support
summary denial on the merits is misplaced. In Smith, the petitioner admitted to engaging
in sexual intercourse and sodomy with the victim but claimed the acts were consensual.
As the Smith panel observed, "DNA testing is intended to confirm or dispute the identity
of individuals involved in or at the scene of a purported crime," but such testing could not
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provide evidence of consent, i.e., could not generate noncumulative exculpatory
evidence. 34 Kan. App. 2d. at 373-74. In the instant case, Hernandez denies engaging in
the sex acts with C.H., so that the identity of the individuals involved in the crime could
be exculpatory. Simply put, Smith is not on point.
The Court of Appeals opined that it did not need to address the district court's
application of caselaw because it summarily concluded that the district court correctly
found that DNA testing could not produce exculpatory evidence, explaining:
"Hernandez asked that the sheets be tested for his DNA, his wife's DNA, and C.H.'s
DNA. The discovery of Hernandez' DNA on the sheets would have been detrimental to
his defense. But the absence of Hernandez' DNA on the sheets would not tend to prove or
disprove any fact at issue that was material to his guilt or innocence. Likewise, the
presence or absence of C.H.'s DNA or the wife's DNA on the sheets would not have
disproved C.H.'s allegations against Hernandez." 2013 WL 5976061, at *3.
As noted earlier in this opinion, evidence can be exculpatory without being
exonerating. To be exculpatory evidence, it need not definitively prove the petitioner's
innocence but only tend to prove a disputed material fact. Moreover, we disagree with the
panel's assessment that the absence or presence of DNA from Hernandez, his wife, and/or
C.H., in whatever combination, or in conjunction with third party DNA, could never tend
to prove or disprove the materially disputed fact that sex acts between Hernandez and
C.H. occurred in his bed or her bed. For instance, the presence of DNA from Hernandez
and/or his wife on their bed, coupled with the absence of C.H.'s DNA, would tend to
disprove that Hernandez sexually abused C.H. on that bed. Similarly, the presence of
DNA from C.H. and/or her boyfriend on her bed, without any DNA from Hernandez,
would be exculpatory evidence.
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Again, the impact of the evidence on the jury verdict is to be addressed in
subsection (f) of K.S.A. 21-2512, after the test results are obtained. The court has to
determine whether the test results are unfavorable to the petitioner, favorable to the
petitioner, or inconclusive. If unfavorable, the petition is dismissed. K.S.A. 21-
2512(f)(1)(A). If favorable, the court has the option of ordering a hearing and entering
any order that serves the interests of justice. K.S.A. 21-2512(f)(2)(A) and (B). If the
results are inconclusive, "the court may order a hearing to determine whether there is a
substantial question of innocence." K.S.A. 21-2512(f)(3). The determination of whether
there is a substantial question of innocence is not a precursor to ordering the testing in the
first instance.
Because the district court's summary denial of Hernandez' petition was founded
upon its application of incorrect legal standards, the matter is remanded with directions
for the court to conduct a hearing utilizing the law as set forth herein and permitting the
introduction of evidence, if necessary.
The decision of the Court of Appeals is reversed. The decision of the district court
is reversed and remanded with directions.
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