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Grober v. State5/8/1998
conducted in this case failed to compare his genetic markers solely to those of the Ashkenazic Jews. Dr. Cutter testified that population substructuring is not statistically significant for the locus tested, and is not statistically significant if numerous loci are tested. This is consistent with the academic material presented to the trial Judge. However, the Judge reduced the calculations by one and two orders of magnitude in reaching her Conclusion. Grober's evidence directly supports the Conclusion that there will be no greater margin of error than two orders of magnitude.
The court discarded the paternity indices for the locus which Grober's expert stated was inconclusive. This was not error. Dr. Cutter testified that one mismatch would not exclude paternity, and that it was accepted practice in paternity testing to require two mismatches to find an exclusion. Dr. Frelinger was not familiar with the protocols concerning how many mismatches are required before an exclusion is declared. Thus, even accepting Dr. Frelinger's testimony that the results of one locus were inconclusive, this does not establish an exclusion of paternity. Dr. Cutter also testified why it was not inconclusive.
Grober's remaining arguments are unpersuasive. We conclude that the trial court did not err in its calculation of the probability of paternity based on the scientific evidence presented.
E. Did the Trial Court Err in Its Evaluation of the Evidence?
Grober believes that the trial court erred when it found that the prior probability of paternity, without reference to the scientific evidence, was forty percent. He argues that if the prior probability was zero or ten percent, then the appropriate equation (using his expert's interpretation of the blood testing) would produce a probability of paternity of only 91.74 percent. This would be insufficient to raise a presumption of paternity.
This argument fails. The Judge found that it was more likely than not that D.W. and Grober had unprotected sexual intercourse around the time of conception. The evidence concerning whether D.W. and Grober had sexual intercourse was in conflict. We defer to the trial court's determination of credibility. Alaska R. Civ. P. 52(a); Wasserman v. Bartholomew, 923 P.2d 806, 817 n.29 (Alaska 1996).
Had D.W. engaged in intercourse with only Grober, the prior probability of paternity would be one hundred percent. The Judge held that the prior probability of paternity was forty percent, because D.W. was dating another man at the same time. If this is error, it benefits Grober. If D.W. in fact had intercourse with both men around the time of conception, it would be equally likely that either of the men is C.J.W.'s father, producing a prior probability of fifty percent that Grober is C.J.W.'s father.
Next, Grober argues that the court incorrectly determined that he did not produce clear and convincing evidence that he is not C.J.W.'s father. Having reviewed the record, we do not believe that this finding is clearly erroneous.
Grober's remaining argument that CSED did not have standing to bring this action is meritless. CSED does not need to plead that the action is in the child's best interest, nor does it need to seek a support order in a paternity action. See AS 25.27.040.
IV. CONCLUSION
We AFFIRM the judgment below.
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