An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA14-34
                       NORTH CAROLINA COURT OF APPEALS

                             Filed:     19 August 2014


STATE OF NORTH CAROLINA

      v.                                      Johnston County
                                              Nos. 82 CRS 5044-47
JOE FORNECKER SMITH



      Appeal by defendant from order entered 28 October 2013 by

Judge Gale M. Adams in Johnston County Superior Court.                    Heard in

the Court of Appeals 21 May 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Kimberly N. Callahan, for the State.

      Sue Genrich Berry, for defendant-appellant.


      CALABRIA, Judge.


      Joe Fornecker Smith1 (“defendant”) appeals from an order

denying his amended motion for post-conviction DNA testing.                       We

affirm.

      The background and facts of the underlying offenses in this

case are fully set forth in defendant’s previous appeal, State

1
  Defendant’s name is spelled “Joe Fornocker Smith” and “Joe
Fornecker Smith” on different documents in the record. We use
the spelling provided in the notice of appeal.
                                      -2-
v. Smith, 310 N.C. 108, 310 S.E.2d 320 (1984).                  In June 1982,

defendant and Louie Carlos Ysaguire (“Ysaguire”) raped, sexually

assaulted, and robbed a female victim at a motel.                     They then

bound and gagged the victim and urinated on her before leaving

her face down on the bed.          Defendant was arrested, charged, and

indicted under a theory of aiding and abetting Ysaguire with

first degree rape, first degree sexual offense, first degree

burglary, and armed robbery.          After a trial, the jury returned

verdicts finding defendant guilty of all offenses.                    The trial

court sentenced defendant to two life sentences and two fourteen

year sentences, each to run consecutively.                Defendant appealed

to the Supreme Court of North Carolina.                  The Court found no

error in defendant’s trial.

    In February 2010, defendant filed a pro se motion for post-

conviction DNA testing pursuant to N.C. Gen. Stat. § 15A-269, an

affidavit of innocence, and           a motion to locate and preserve

evidence.      Subsequently, defendant’s counsel filed an amended

motion   for   DNA     testing   on   eight   items      that   had   not    been

subjected to DNA testing: a rape kit from the victim, a rape kit

from Ysaguire, a rape kit from defendant, one bed sheet, one

pillowcase,    cloth    strips    removed   from   the    victim,     two   pubic

hairs, and one knife.            Following a hearing, the trial court
                                          -3-
ordered     the   State    to    locate      the   evidence    sought   or   submit

affidavits if the evidence had been destroyed.                   The trial court

reserved its ruling on whether DNA testing would be allowed on

the knife used in the assault, which the parties agreed was

available for testing.

       On   24    June    2013    in    Johnston      County    Superior     Court,

defendant’s counsel reviewed affidavits that the State submitted

from the Johnston County Sheriff’s Office, the North Carolina

State Bureau of Investigation, the Smithfield Police Department,

and the Johnston County Clerk of Court (“the Clerk’s Office”).

Defendant’s counsel learned that neither the Clerk’s Office nor

any of the agencies possessed the physical evidence listed in

the amended motion with the exception of the knife used in the

assault.     After hearing arguments from defendant and the State,

the trial court denied defendant’s motion for post-conviction

DNA testing of the knife on 28 October 2013.                  Defendant appeals.

       Defendant argues that the affidavits submitted by the State

were   insufficient       to    meet   the    statutory   requirements       or   the

trial court’s order.             Specifically, defendant claims that the

affidavits did not establish that the evidence had in fact been

destroyed    or    was    unavailable        for   testing.     However,     at   the

hearing, defendant failed to object to the sufficiency of the
                                              -4-
affidavits.         Nor did defendant argue at the hearing that the

State had failed to comply with the trial court’s order or with

N.C.   Gen.    Stat.       §    15A-269.            Furthermore,    at    the     hearing,

defendant     did    not       assert   any    bad     faith   on   the    part    of   the

Clerk’s Office or the various agencies.                        Therefore, defendant

failed   to    preserve         this    issue       for   appeal.         See   State    v.

Haselden, 357 N.C. 1, 10, 577 S.E.2d 594, 600 (citations and

quotation marks omitted), cert. denied, 540 U.S. 988, 157 L. Ed.

2d 382 (2003) (“This Court will not consider arguments based

upon matters not presented to or adjudicated by the trial court.

Even alleged errors arising under the Constitution of the United

States are waived if defendant does not raise them in the trial

court.”).

       Defendant also argues that the trial court erred in denying

his motion for post-conviction DNA testing of the knife.                                 We

disagree.

       In reviewing the denial of a motion for post-conviction DNA

testing, “[f]indings of fact are binding on this Court if they

are supported by competent evidence and may not be disturbed

absent an abuse of discretion.                 The lower court’s conclusions of

law are reviewed de novo.”              State v. Gardner, ___ N.C. App. ___,

___, 742 S.E.2d 352, 354 (2013) (citation omitted).
                                               -5-
          N.C. Gen. Stat. § 15A-269(a) (2013) provides, in pertinent

part, that a defendant may make a motion for DNA testing “if the

biological evidence meets all of the following conditions”: (1)

it is material to the defendant’s defense; (2) it is related to

the prosecution that resulted in the judgment; and (3) it was

either not previously tested or “would provide results that are

significantly more accurate and probative of the identity of the

perpetrator or accomplice or have a reasonable probability of

contradicting prior test results.”

      To       be       successful   on    a    motion      for    post-conviction            DNA

testing, a defendant must prove that the biological evidence is

“material to the defendant’s defense.”                          N.C. Gen. Stat. § 15A-

269(a).        “[A] defendant carries the burden to make the showing

of materiality required by N.C. Gen.Stat. § 15A-269(a)(1) [sic]

and   .    .    .       this   burden     requires        more    than     the    conclusory

statement that the ability to conduct the required DNA testing

is material to the defendant’s defense.” Gardner, ___ N.C. App.

at ___, 742 S.E.2d at 356                      (citation and internal quotations

omitted).               “Favorable   evidence        is    material      if      there   is    a

reasonable probability that its disclosure to the defense would

result     in       a    different   outcome         in   the     jury’s    deliberation.”
                                       -6-
State v. Hewson, ___ N.C. App. ___, ___, 725 S.E.2d 53, 56

(2012) (citations omitted).

    In the instant case, there is no question that defendant’s

request   for   post-conviction        DNA    testing   is   related   to   the

prosecution     that   resulted   in    the    judgment,     since   defendant

believes the evidence collected supports his claim of innocence.

Defendant also correctly asserts that the items of evidence that

were listed for testing had not been subjected to DNA testing at

any time in any lab.        Therefore, the issue for this Court to

determine is whether the testing of the knife is material to

defendant’s defense or whether the DNA found on the knife would

result in a different outcome in the jury’s deliberation.

    At the hearing, defense counsel argued the importance of

testing the knife:

                The only thing that has been located,
           that we have requested to have tested, was
           the knife that was allegedly used in that
           incident that evening.

                I think that knife is very important .
           . . to the fact the police on site said the
           two gentlemen at the time, [Ysaguire] – and
           that’s the point in time when they saw the
           knife in the car. They say that [defendant]
           didn’t have it in his possession when he got
           to the car.    And also, that would be in
           [defendant’s] testimony at the trial that he
           did not threaten anybody with a knife; that
           he was trying to hold on in order to stand
           up, that he was under the influence of what
                                        -7-
           we believe might be LSD.

                Therefore . . . I would ask this Court
           [sic] to submit that knife for DNA testing
           so that we can confirm whether or not the
           epithelial cells off of [Ysaguire], the co-
           defendant, are there and it would be no DNA
           from my client, [defendant].

    The State responded, inter alia, that “DNA testing of the

knife   would    not    establish   any       evidence    of    the   defendant’s

innocence or mitigation[.]”         The trial court denied defendant’s

amended motion for post-conviction DNA testing and ordered that

the knife was not to be tested.               The court “[did] not find that

the verdict would have been more favorable to the defendant had

it been previously tested and testing is not likely to produce a

result that is different from what has already occurred[.]”                    The

court   added,        “the   evidence     [against       defendant]     in    this

particular case [was] overwhelming.”

    At the hearing to submit the knife for testing to show the

lack of defendant’s DNA, defendant had the burden of proving the

materiality of the evidence.             Defendant’s counsel argued that

since defendant did not have possession and did not threaten

anyone with the knife, the testing would confirm that Ysaguire’s

DNA would be on the knife, not defendant’s DNA.                       Not having

possession      and    not   threatening       anyone    with   the   knife    was

insufficient to prove how the DNA testing of the knife would be
                                            -8-
material to defendant’s defense, because defendant testified at

trial that Ysaguire “pulled a knife on him.”                     Smith, 310 N.C. at

111, 310 S.E.2d at 322.              Defendant failed to show in his motion

for   DNA       testing      and     at   the     hearing,      with     a    reasonable

probability, how the lack of his DNA on the knife itself would

have affected his defenses at trial or resulted in a different

outcome in the jury’s deliberation.                      Hewson, ___ N.C. App. at

___, 725 S.E.2d at 56.              Since defendant was unable to carry his

burden of showing there was a reasonable probability that the

disclosure       of    DNA   would    produce     a   different        outcome    in   the

result     of    the    jury’s      deliberation,        id.,    the    trial    court’s

findings of fact were supported by competent evidence.                                 The

trial court did not abuse its discretion by denying defendant’s

motion for post-conviction DNA testing.

      In        conclusion,        defendant       failed       to     challenge       the

sufficiency of the affidavits at the hearing.                           Therefore, he

failed     to     preserve     that       issue    for    appeal.            Furthermore,

defendant’s conclusory assertion that DNA testing of the knife

would support his claim of innocence is insufficient to show the

materiality of the evidence to his defense as required by N.C.

Gen. Stat. § 15A-269.              Therefore, the trial court did not err in
                                    -9-
denying     defendant’s   motion.         The   trial   court’s   order   is

affirmed.

    Affirmed.

    Judges BRYANT and GEER concur.

    Report per Rule 30(e).
