A three-justice panel of the Appeals Court heard oral argument in Commonwealth v. Ortiz (24P13644) about whether the DNA found on a latex glove and a shoe print are sufficient, when viewed in the light most favorable to the Commonwealth, to support convictions for breaking and entering at night, malicious destruction of property and larceny of a firearm.

The central legal question, counsel and the court framed, is the sufficiency of portable-DNA evidence and the probative value of a shoe impression when the prosecution lacks direct proof of when DNA was deposited or direct measurements of the defendant's shoe. Attorney Kevin Dimelo, representing appellant Mitchell Ortiz, told the panel that "although mister Ortiz's DNA was found on a glove near the robbery, DNA evidence found on a portable item ... is not sufficient without additional evidence that the perpetrator placed the DNA on the object at the time of the crime." He argued the glove is a portable item like the bandana and T-shirt at issue in what he called the Anita's case and that DNA is "durable" and "transferrable," meaning the presence of DNA alone does not prove the defendant wore the glove during the offense.

Dimelo pressed two related points: the forensic report does not show whether the DNA was recovered from the inside or the outside of the glove, and the prosecution's shoe-print evidence lacks a contemporaneous measurement tying the print to the defendant's shoe. Dimelo noted the print measured roughly "11 to 11 and a half" inches, that the detective relied on photographs of a shoe showing a tag marked "11 and a half," and that "the detective never actually had that shoe in his possession to make those measurements." He urged the court to treat the challenges as matters of insufficiency, not facts to be resolved on appeal by reweighing the evidence.

Assistant District Attorney Anne Kennedy, arguing for the Commonwealth, said the evidence is sufficient when viewed in the light most favorable to the prosecution. Kennedy told the court the relevant DNA was "on a fingertip" of a purple latex glove and that the glove was found along a trail with other items taken in the burglary. She also relied on a line of authority, including a footnote citation to State v. Freeman, to argue that DNA need not always be excluded where the circumstances make an innocent deposition unlikely: "In State versus Freeman ... it was impossible to do an opposite inference of the DNA arriving on the evidence in some innocent manner because it required an unlikely series of events," she said, and the Commonwealth contends the latex glove here is similarly unlikely to have arrived innocently.

Kennedy also relied on testimony that the victim and officers observed footprints outside the dwelling before the victim exited to investigate the break-in and on Officer testimony that the scene was muddy, which she said supported the inference that the prints were made at the time of the offense. The prosecutor asked the court to defer to the factfinder's ability to weigh the footprint and glove together with other evidence.

The panel asked clarifying questions about the reported location of the DNA on the glove, the provenance of the shoe photographs, and the applicable appellate standard of review. Both sides acknowledged limits in the record on certain details: the glove report does not specify inside versus outside for the DNA, and the record reflects only photographs of a shoe with a size tag rather than the physical shoe measurement.

The court did not issue a ruling at argument. The panel took the case under advisement.