State of Kansas, Appellee, v. Richard C. Butler, Appellant. (2026)

MEMORANDUM OPINION

Richard C. Butler appeals the Atchison County District Court's denial of his pro se motion for forensic DNA testing of several items associated with his prosecution. Butler's appointed counsel challenges the district court's summary denial of Butler's request for DNA testing as to two items identified in the request. Butler separately challenges the district court's admission of several pieces of physical evidence and claims the State improperly disposed of potentially exculpatory evidence. After thorough review, we agree one item may be tested and reverse the district court's order as to the knife in question; in all other respects we affirm the district court's ruling.

Factual and Procedural Background

In 2019, the State charged Butler with multiple serious felonies, including three counts of rape. The underlying circumstances of the crimes are relatively immaterial to the resolution of this appeal, but the facts are succinctly summarized in this court's appellate decision in Butler's direct criminal appeal. See State v. Butler, No. 123,742, 2022 WL 3692866, at *1-5 (Kan. App. 2022) (unpublished opinion), rev'd 317 Kan. 605, 533 P.3d 1022 (2023). While the Kansas Supreme Court disagreed with some of the Court of Appeals’ legal analysis, they approved the summary of the underlying facts. 317 Kan. at 606. As such, the sordid details of the offenses need not be recited here.

At trial, Butler did not testify in his own defense but offered some fact and character witnesses. Butler's defense consisted of characterizing the victim as vindictive and her allegations as maliciously fabricated. The jury convicted Butler of all charged offenses, except the jury returned a conviction on the lesser included offense of domestic battery rather than the charged offense of aggravated domestic battery.

At sentencing, the district court imposed a controlling sentence of 543 months in prison. Butler appealed his convictions and sentences. A panel of this court vacated his aggravated kidnapping conviction but otherwise affirmed his convictions and sentences. Butler, 2022 WL 3692866, at *19. On review, the Kansas Supreme Court reversed that part of the Court of Appeals’ decision that vacated Butler's conviction for aggravated kidnapping, essentially reinstating the conviction. The court otherwise affirmed the convictions and sentences. Butler, 317 Kan. at 612.

Following the Kansas Supreme Court's ruling, Butler filed a motion for habeas corpus relief under K.S.A. 60-1507. Butler v. State, No. 127,474, 2025 WL 733370 (Kan. App. 2025) (unpublished opinion), rev. denied 321 Kan. 788 (2025). Butler made three related claims regarding the State's use of the victim's testimony that was contradicted by her court-ordered domestic violence assessment and her physical examination. This court affirmed the district court's summary dismissal of the habeas corpus petition. 2025 WL 733370, at *5.

On August 26, 2024, Butler filed a pro se motion requesting forensic DNA testing of several physical objects. The State challenged the propriety of Butler's request, and the district court ultimately denied Butler's request without a hearing. The district court concluded that some of the objects Butler sought to have tested were not in the actual or constructive possession of the State. Of the objects within the State's possession, the court noted that Butler did not provide a persuasive argument that some of the objects contained biological material that could be tested for DNA. Even if biological material were discovered, the DNA testing would not be exculpatory because the relationship between Butler and the victim was undisputed. Butler lived in the house, so his DNA and the victim's DNA would be expected on the various objects obtained from the house.

Butler timely appealed the district court's ruling on DNA testing. He was provided appointed counsel, who filed a brief on Butler's behalf. Butler was then permitted to supplement his counsel's brief with a pro se brief.

Discussion of Butler’s Appellate Challenges

I. The district court erred by summarily denying Butler's motion for DNA testing.

When a district court denies a motion for DNA testing under K.S.A. 21-2512 without an evidentiary hearing and findings of fact, an appellate court is in the same position as the district court to evaluate the motion. Accordingly, appellate review is unlimited. See State v. Ruff, 322 Kan. 126, 130, 586 P.3d 762 (2026) (“[S]ummary denial occurs when a court's adjudication of a petition is based on the pleadings, the record of the underlying trial, and any legal arguments advanced at a nonevidentiary hearing. In such cases, appellate review is unlimited because appellate courts are in as good a position as the district court to assess the petition's merits.”).

Postconviction DNA testing in a criminal case is governed by K.S.A. 21-2512. When considering a request for DNA testing, a district court must make several determinations through a three-step process.

Step 1: Determine whether the movant was convicted of a crime permitting postconviction testing.

First, a criminal defendant seeking DNA testing must have been convicted of one or more specified offenses and be held within state custody. K.S.A. 21-2512(a) (“[A] person in state custody, at any time after conviction ․ for rape as defined by K.S.A. 21-3502, prior to its repeal, or K.S.A. 21-5503, and amendments thereto, may petition the court that entered the judgment for forensic DNA testing ․”). Here, Butler was convicted in 2020 of three counts of rape, among other offenses, for which he is currently incarcerated, serving a prison sentence of over 45 years. This conviction permits postconviction testing.

Step 2: Applying the three-part analysis to determine testing eligibility

Second, the court is required to conduct a three-part, burden-shifting inquiry regarding the criteria for testing. The party requesting DNA testing must allege the material sought to be tested satisfies the statutory criteria. State v. Angelo, 316 Kan. 438, 455-57, 518 P.3d 27 (2022). If the motion sufficiently alleges the statutory criteria, the burden of production shifts to the State to identify the biological material it previously secured in connection with the case and to raise any disagreements with the defendant's allegations regarding the presence of biological material. Angelo, 316 Kan. at 457. Third, if the parties do not agree about the extent of the biological material held by the State, the court must hold an evidentiary hearing to establish the existence of biological material in the State's possession. Angelo, 316 Kan. at 458.

Testing Criteria

K.S.A. 21-2512(a) limits testing to:

“(a) ․ 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.”

In this context, “biological material” is undefined in statute or case authority. However, words used by the Legislature that are not statutorily defined have their common meanings. “Biological” has four meanings listed in Webster's New World College Dictionary 148 (5th ed. 2021): (1) “of or connected with biology; of plants and animals”; (2) “of the nature of living matter”; (3) “used in or produced by practical biology”; or (4) “related genetically rather than by adoption.” The most relevant definition of “material” in the same dictionary is defined as “of matter; of substance; relating to or consisting of what occupies space; physical.” Webster's at 900. Combining these definitions leads to a meaning that “biological material” is a physical substance produced by or part of a living organism.

As noted above, Butler sought DNA testing of nine physical objects: (1) the victim's DNA; (2) the victim's clothing; (3) bedsheets from the victim's master bedroom; (4) bedsheets from the spare bedroom; (5) a kitchen knife Butler allegedly used to threaten and intimidate the victim; (6) Butler's boxer shorts; (7) a roll of tape found beside a sink; (8) the victim's cellphone; and, (9) a vibrator Butler allegedly used in the commission of several offenses. Other than the victim's DNA, none of the items Butler identified are specifically biological material. Presumably, therefore, Butler wanted the objects tested for the presence of biological material before testing any extant biological material.

K.S.A. 21-2512 does not authorize testing of physical evidence to determine whether biological material is present. Angelo, 316 Kan. at 452-53 (“The plain language of subsection (a) does not contemplate or provide for testing of other physical evidence to determine whether biological material is present. And K.S.A. 2021 Supp. 21-2512(a) requires that a petition for postconviction DNA testing allege that biological material satisfying the threshold requirements for testing exists.”).

Additionally, the material sought to be tested must be within the actual or constructive possession of the State, related to the investigation or prosecution that resulted in the conviction, and not previously tested with the DNA testing techniques sought by the defendant. K.S.A. 21-2512(a)(2), (a)(3).

The relief sought within Butler's pro se motion for DNA testing is not entirely clear. He requests retesting without specifying what items were previously tested for DNA and lists a series of items without alleging the existence of biological material on any specific item. He then contends that the State lacked any biological material of his to generate a DNA profile for comparison. If true, this would undermine any conclusions regarding Butler's connection to the biological material tested; but it would not necessarily render the testing techniques invalid, only the conclusions drawn from the testing. Consequently, for any biological item tested, this argument does not support retesting. See K.S.A. 21-2512(a)(3) (permitting DNA testing of biological material that was not previously tested or retesting with new techniques that might produce more accurate results).

With respect to the victim's swabs, Butler has failed to identify which of the swabs were not previously submitted to DNA testing. Clearly, one or more swabs were tested to obtain a DNA profile of the victim for comparison. To the extent the biological material on the victim's swabs was submitted for testing, Butler fails to carry his burden to satisfy the testing criteria in K.S.A. 21-2512(a) because he has not articulated a new DNA testing technique that will likely produce more accurate results.

The State contends that Butler failed to assert that any of the other items contained biological material that could be submitted to DNA testing. But the pleading requirements of K.S.A. 21-2512 are not stringent. The motion must merely allege that the evidence containing biological material is related to the investigation or prosecution, that the State has actual or constructive possession of the evidence, and that evidence was not previously subjected to DNA testing or that it could be tested using new DNA testing techniques. Angelo, 316 Kan. at 456 (citing Bruner v. State, 277 Kan. 603, 606, 88 P.3d 214 [2004]). The opening statement of Butler's motion states: “For the following reasons Petitioner-Pro se, Richard C. Butler, asking this court to allow Forensic DNA testing to be retested and giving to him on the following biological materials.” This court must liberally construe pro se pleadings to give effect to their substance rather than form. State v. Gilbert, 299 Kan. 797, 802, 326 P.3d 1060 (2014); Bruner, 277 Kan. at 605. A liberal construction of Butler's motion supports the conclusion that he alleged the existence of biological material on the nonbiological items he listed.

Secured Biological Material

In its response, the State clarified some of the confusion created by Butler's motion by asserting that it did not possess any items listed by Butler other than the victim's oral swab containing her known DNA sample, the victim's pants purportedly worn the morning of the alleged crimes, and the knife located in the kitchen sink. Of the items in its possession, the State conceded that all items were involved in the investigation or prosecution of Butler's case, and that the State did not know whether biological material could be found on the victim's clothing or on the knife, as those items were never tested for biological material. So, though Butler requested retesting, none of the items in the State's possession were previously tested to extract DNA, other than the swabs taken from the victim's sexual assault examination.

Necessity of Evidentiary Hearing

Because establishing the criteria for testing does not require evidence but merely assertions as to the existence of each requirement, Butler's pro se motion for DNA testing satisfies his initial burden to request testing of the victim's pants and the knife under K.S.A. 21-2512. Angelo, 316 Kan. at 458 (“[I]f the parties dispute that biological material exists, then they can present evidence to the district court for fact-finding.”). The State did not dispute Butler's presumed assertion that the victim's pants or the knife contained biological material that could be used to conduct DNA testing. Given the lack of dispute, an evidentiary hearing was not required. It follows, though, with respect to the pants and knife, the district court should have determined that Butler met the criteria for DNA testing of those items.

Step 3: Considering whether any testing will likely produce exculpatory evidence

The next step in a court's consideration of a request for DNA testing under K.S.A. 21-2512 is to consider whether the testing will likely produce noncumulative, exculpatory evidence. K.S.A. 21-2512(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.”). We examine both items of evidence under this lens.

Victim's Pants

The district court concluded that, even if the victim's pants and the knife bore biological material that could be tested for DNA, the results of the DNA testing could not be exculpatory to Butler. But the Kansas Supreme Court cautions courts considering a request for DNA testing not to weigh evidence at this stage of the inquiry.

“[T]he strength of the inculpatory trial evidence is not a relevant consideration in determining whether DNA test results may produce exculpatory evidence under K.S.A. 2021 Supp. 21-2512(c). Rather, at this stage, the focus of the inquiry is limited to whether such results may tend to prove or disprove a disputed material fact, even if the results would do so by only the slightest margin. See [State v.] George, 308 Kan. [62,] 68[, 418 P.3d 1268 (2018)]; Haddock v. State, 295 Kan. 738, 769, 286 P.3d 837 (2012). The district court may weigh the evidence only after testing has been ordered—when it makes a ‘ “probabilistic determination about what reasonable, properly instructed jurors would do” with the new evidence in light of the totality of the circumstances’ under K.S.A. 2021 Supp. 21-2512(f). [State v.] Lackey, 295 Kan. [816,] 824[, 286 P.3d 859 (2012)].” Angelo, 316 Kan. at 461-62.

Though the reasoning of the court in Angelo strongly weighs in favor of reversing the district court's conclusion about the exculpatory nature of potential DNA evidence obtained from the victim's pants and the knife, Butler's case is distinguishable from Angelo. As Angelo noted, when considering the non-cumulative, exculpatory nature of additional DNA testing, the district court must focus on whether the DNA results may tend to prove or disprove a disputed material fact. In State v. George, 308 Kan. 62, 67, 418 P.3d 1268 (2018), the court noted that the essential purpose of DNA testing is “ ‘to confirm or dispute the identity of individuals involved in or at the scene of a purported crime.’ ” 308 Kan. at 67 (quoting State v. Johnson, 299 Kan. 890, 894, 327 P.3d 421 [2014]).

In Angelo and the cases it cited for support, the identity of the perpetrator of the crime was a disputed material fact. 316 Kan. at 464-65. In Butler's prosecution, the identity of the victim's sexual partner was not disputed. Butler's presence at the victim's house at the time of the alleged offenses was also not materially disputed. The dispute lay in whether the sexual interactions were consensual and whether Butler engaged in the threats and acts of violence for which he was convicted. In other words, Butler admitted he had been in the victim's home and had engaged in sexual intercourse with her. The case hinged on the victim's credibility that Butler's interactions with the victim occurred in a violent, involuntary manner, as the victim alleged—including whether Butler threatened her with a kitchen knife.

Even without weighing any evidence, the existence or absence of Butler's DNA or the victim's DNA on her pants does not tend to prove or disprove any material fact at issue in Butler's trial by even the slightest margin because Butler's presence in the victim's household generally was never in dispute. Nor was his intimate relationship with the victim. See Johnson, 299 Kan. at 894 (holding that DNA evidence was intended to confirm or dispute the identify of individuals at the scene of the crime and that, when identity is not a fact issue in dispute at trial, DNA testing cannot exculpate the defendant from guilt for the crimes).

According to the victim, Butler brandished the knife and ordered her to remove her clothing almost as soon as she entered her house. Butler did not testify, but he also did not present any evidence to suggest that he was not at the victim's home at the time in question. Butler's identity and presence at the victim's home were not in dispute, only the nature of his conduct there. As a result, DNA testing of the victim's clothing cannot establish or disprove Butler's presence at her home because his presence was conclusively established by other evidence. Accordingly, the district court did not err in denying Butler's motion for DNA testing of the victim's pants.

The Knife

Unlike DNA testing of the victim's clothing, which could only be used to establish or disprove Butler's undisputed presence at the time of the crime, the testing of the knife could tend to corroborate or impeach the victim's account about Butler's use of the knife to threaten the victim and obtain her compliance.

As a result, assuming the presence of biological material on the knife, DNA testing could reveal the victim's DNA on the knife, Butler's DNA on the knife, some unknown third person's DNA on the knife, or some combination of these options. Some of these options could support Butler's defense or cast doubt on the victim's credibility, even if the results were ultimately insufficient to exonerate Butler.

One would assume that if any DNA other than Butler's had been on the knife before he used it to threaten the victim, it may have been wiped away by Butler's handling of the knife, even if Butler's DNA did not transfer in any measurable quantity. So, if biological material were found on the knife and DNA testing of the knife conclusively established that the biological material was contributed by someone other than Butler, the evidence tends to be exculpatory, even if, as discussed, an explanation for the DNA results fails to ultimately exonerate Butler.

Even if DNA testing establishes only the presence of the victim's DNA on the knife and not Butler's DNA, the results provide support to Butler's defense. The victim testified that she never handled the knife during the commission of the crimes. She testified that Butler handled the knife extensively throughout his commission of the crimes. She claimed that she left the knife next to Butler when she fled her house. Consequently, while a DNA profile containing both the victim's and Butler's DNA would not provide exculpatory evidence for Butler, the victim's DNA alone would tend to support Butler's claim that the victim's account about Butler's menacing her with the knife was fabricated.

For this reason, the district court improperly concluded that any DNA evidence obtained from testing biological material on the knife was not exculpatory. As Angelo instructs, the weight of any exculpatory DNA evidence when balanced against the evidence presented at trial must be reserved until the results of the testing are known to the district court. 316 Kan. at 461-62.

For these reasons, we reverse the district court's order denying Butler's request for DNA testing under K.S.A. 21-2512 only with respect to the knife. The case is remanded to the district court with instructions to order DNA testing of the knife to the extent possible, acknowledging that the existence of biological material on the knife is based solely on Butler's allegations. There may prove to be no biological material to test or the biological material may not provide a sufficient DNA sample to create a profile. But DNA testing must at least be attempted.

II. Butler's claim that the district court abused its discretion in admitting several pieces of physical evidence at trial fails.

In his supplemental pro se brief, Butler contends that the district court erred in admitting several pieces of physical evidence at trial without conducting DNA evidence of the objects to corroborate the victim's account about how the items were involved in the crimes. Specifically, Butler challenges the admission of a vibrator and Butler's boxer shorts.

As a preliminary matter, a motion for DNA testing under K.S.A. 21-2512 is not a procedural vehicle for raising matters outside the scope of the statute. State v. Harris, 318 Kan. 926, 929-30, 550 P.3d 311 (2024). The proper procedure for challenging the district court's evidentiary rulings was to raise the issues in a direct criminal appeal. Barring that, a prisoner could seek to challenge some evidentiary rulings in a collateral, habeas corpus proceeding under K.S.A. 60-1507.

This court could liberally construe Butler's motion as a request for habeas corpus relief under K.S.A. 60-1507. Gilbert, 299 Kan. at 802. A court may consider a request for DNA testing within a habeas corpus proceeding. Bruner, 277 Kan. at 605. But nothing in Butler's pro se motion requesting DNA testing suggests he was seeking broader constitutional relief. His motion before the district court does not raise any of the evidentiary claims he pursues in this appeal.

Normally, a court does not entertain issues raised for the first time on appeal. Schutt v. Foster, 320 Kan. 852, 855-56, 572 P.3d 770 (2025). While limited exceptions permit an appellate court, in its discretion, to consider such issues for the first time on appeal, Butler has not argued that any of the exceptions apply in his case. The Kansas Supreme Court has ruled that Butler's failure to articulate a basis for appellate consideration of an issue for the first time on appeal constitutes a waiver of any exceptions to the preservation rule. 320 Kan. at 856.

Even if we assume Butler overcomes all these procedural obstacles, he faces yet another problem. He never objected to the admission of the vibrator or his boxer shorts on the grounds that they were not tested for DNA to corroborate the victim's account. A party may not challenge the admission of evidence without preserving the challenge at trial with a contemporaneous objection. K.S.A. 60-404. A party may not object to the admission of evidence on one legal basis at trial and raise a different basis for challenging the evidence on appeal. State v. Reed, 300 Kan. 494, 505, 332 P.3d 172 (2014).

Additionally, the admission of evidence is a trial issue that is typically addressed on direct appeal. A habeas corpus proceeding is not a second direct appeal and cannot be used to address trial errors, unless the trial errors impinge on a constitutional right and the movant demonstrates exceptional circumstances to justify a failure to raise the issue on direct appeal. Littlejohn v. State, 310 Kan. 439, 444, 447 P.3d 375 (2019) (citing Dunlap v. State, 221 Kan. 268, 270, 559 P.2d 788 [1977]). Butler has not articulated a justification in his brief.

Even if we were to reach this issue, Butler provides no basis for reversible error. All relevant evidence is admissible unless otherwise prohibited by statute, constitutional principle, or court decision. State v. Wash, 320 Kan. 646, 688, 571 P.3d 568 (2025). Butler cites no statutory authority for the proposition that physical evidence must be tested for DNA evidence before it may be admitted at trial to corroborate a witness account, and our research reveals no such authority to support his position.

Because no statute or constitutional principle bars the admission of the vibrator and Butler's boxer shorts, the district court did not abuse its discretion to admit these items of physical evidence if they were relevant to the case. Since the victim testified about the vibrator's use in Butler's rape of her, it was relevant to his prosecution for rape. Because the victim also testified about the boxer shorts Butler was wearing at the time of the alleged crimes, it also was relevant to his prosecution. Butler has not alleged that the evidence was more prejudicial than probative, but the probative value of these items of evidence far outweighed any danger of unfair prejudice to Butler.

Even if Butler's claims did not fail on procedural bases, the district court did not abuse its discretion in admitting the vibrator and Butler's boxer shorts at trial.

III. Butler is not entitled to relief on his claim that the State destroyed potentially exculpatory evidence.

In his pro se supplemental brief, Butler alleges that certain physical items, which he claims contained biological material that could have been tested for DNA, were improperly “got[ten] rid of” by the State.

As an initial matter, Butler did not raise these arguments in the district court. After the State responded to his request for DNA testing of these items, noting that most of them were not in the State's possession, Butler provided a pro se response. That response merely alleged that the physical items were used at trial and therefore should have been preserved. Butler did not claim that the State had destroyed or disposed of the physical items, let alone articulate a cognizable claim for relief. Consequently, the issue is not properly raised for the first time on appeal.

Generally, an appellate court will not consider an issue raised for the first time on appeal unless the appellant articulates a judicially-recognized exception for considering an issue for the first time on appeal. Schutt, 320 Kan. at 855-56. Butler has not cited any exception to the preservation rule. Accordingly, we need not consider the issue.

Even if we were to consider Butler's claims for the first time on appeal, he faces another procedural obstacle. K.S.A. 21-2512 is not the proper procedural vehicle for making a spoliation claim. The scope of K.S.A. 21-2512 is limited to the State's preservation of biological material the State has already secured, not to the preservation of physical evidence that might possess biological material. Harris, 318 Kan. at 929-30. The proper procedural vehicle for bringing a spoliation claim is a habeas corpus motion under K.S.A. 60-1507, subject to the bad-faith requirements of Arizona v. Youngblood, 488 U.S. 51, 58, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988). Harris, 318 Kan. at 930.

Because appellate courts are directed to give a liberal construction to pro se pleadings, however, we could interpret Butler's claims as a habeas corpus motion under K.S.A. 60-1507. Gilbert, 299 Kan. at 802. A claim for DNA testing under K.S.A. 21-2512 may be raised in a motion under K.S.A. 60-1507. Bruner, 277 Kan. at 605. So, the two claims are not mutually exclusive.

However, nothing within Butler's original pro se motion or in his response indicate he intended to seek habeas corpus relief. Butler previously sought habeas corpus relief, and neither his current motion nor his supplemental pro se brief contain an argument that would compel this court to entertain a successive motion under K.S.A. 60-1507. State v. Mitchell, 315 Kan. 156, Syl. ¶ 6, 505 P.3d 739 (2022) (“A second or successive K.S.A. 60-1507 motion may be dismissed as an abuse of remedy unless the defendant establishes exceptional circumstances for the subsequent motion.”).

Finally, nothing within Butler's appellate brief alleges that the destruction of the physical evidence Butler hoped to test for DNA was the product of bad faith. Accordingly, Butler has failed to allege a prima facie claim for spoliation under Youngblood. When raising a claim in a motion for habeas corpus relief under K.S.A. 60-1507 a movant faces stricter pleading requirements than a typical civil case. The facts supporting the claim for relief must be alleged with specificity. Pabst v. State, 287 Kan. 1, 25, 192 P.3d 630 (2008) (“[O]ur rule governing the sufficiency of a 60-1507 motion appears to require more specificity” both in terms of the legal grounds alleged and in the factual bases relied on.). Arguing that the State “got rid of” potentially exculpatory evidence is not sufficient to raise a claim of spoliation under Youngblood.

Reversed and remanded for DNA testing of the knife if biological material is found; affirmed in all other respects.

Affirmed in part, reversed in part, and remanded with directions.

PER CURIAM: