An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-836
                       NORTH CAROLINA COURT OF APPEALS

                               Filed: 4 March 2014


STATE OF NORTH CAROLINA

      v.                                      Johnston County
                                              No. 09 CRS 55879, 56059
VAN BUREN KILLETTE, JR.



      Appeal by defendant from order entered 17 January 2013 by

Judge Thomas H. Lock in Johnston County Superior Court.                       Heard

in the Court of Appeals 11 December 2013.


      Roy Cooper, Attorney General, by Laura E. Parker, Assistant
      Attorney General, for the State.

      Staples Hughes, Appellate Defender, by Constance E.
      Widenhouse, Assistant Appellate Defender, for defendant-
      appellant.


      STEELMAN, Judge.


      Where the evidence in question had already been destroyed

and   the    defendant      failed    to    show    that    the    evidence     was

biological evidence and material to his defense, the trial court

did not err in denying defendant’s motion to locate and preserve

evidence for DNA testing.
                                       -2-



                 I. Factual and Procedural Background

     On 1 June 2010, Van Buren Killette, Jr., (defendant) pled

guilty to one count of second-degree burglary, two counts of

second-degree kidnapping, and one count of conspiracy to commit

robbery with a dangerous weapon, pursuant to a plea bargain as

to   sentence.         Defendant      was     sentenced          to    27-42    months

imprisonment     for   burglary      and    kidnapping,          and   27-42    months

imprisonment     for    conspiracy,         with   the       sentences         to   run

consecutively.

     On   14   June    2010,   the   State     filed     a   motion       to   destroy

evidence in defendant’s cases.               This motion was granted on 7

July 2010.      The evidence destroyed included duct tape from the

crime scene, a pair of defendant’s shoes, a brown paper bag

containing miscellaneous items of clothing, a brown paper bag

containing     two   multi-colored     hoodies,    and       a    brown    paper    bag

containing pieces of duct tape with shoe impressions.

     On 10 December 2010, defendant, pro se, filed a motion to

locate and preserve evidence, a motion for DNA testing, and an

affidavit of actual innocence.               On 10 January 2013, the trial

court heard defendant’s motions.             On 17 January 2013, the trial

court denied defendant’s motions.
                                       -3-
    Defendant appeals.



                           II. Standard of Review

    “In reviewing a trial judge's findings of fact, we are

‘strictly      limited    to    determining       whether    the    trial   judge's

underlying findings of fact are supported by competent evidence,

in which event they are conclusively binding on appeal, and

whether   those       factual   findings     in    turn     support   the   judge's

ultimate conclusions of law.’” State v. Allen, ___ N.C. App.

___, ___, 731 S.E.2d 510, 519, disc. review denied, 366 N.C.

415, 737 S.E.2d 377 (2012), cert. denied, ___ U.S. ___, 133

S.Ct. 2009, 185 L. Ed. 2d 876 (2013) (quoting State v. Williams,

362 N.C. 628, 632, 669 S.E.2d 290, 294 (2008)).

    “Issues      of    statutory    construction      are     questions     of   law,

reviewed de novo on appeal.” McKoy v. McKoy, 202 N.C. App. 509,

511, 689 S.E.2d 590, 592 (2010).

                 III. Materiality of Destroyed Evidence

    On appeal, defendant contends that the trial court erred by

failing   to    conduct     a   hearing    regarding        the    destruction    of

physical evidence, or to consider an appropriate remedy, and

that the trial court erred by denying defendant’s motion to

preserve evidence for DNA testing.            We disagree.
                                   -4-
    Pursuant    to   N.C.   Gen.   Stat.   §   15A-268,   the   State   is

required to preserve “biological evidence,” which

            includes the contents of a sexual assault
            examination kit or any item that contains
            blood, semen, hair, saliva, skin tissue,
            fingerprints, or other identifiable human
            biological material that may reasonably be
            used to incriminate or exculpate any person
            in the criminal investigation, whether that
            material is catalogued separately on a slide
            or swab, in a test tube, or some other
            similar method, or is present on clothing,
            ligatures,    bedding,    other    household
            materials, drinking cups, cigarettes, or any
            other item of evidence.

    N.C. Gen. Stat. § 15A-268(a) (2013).         In response to notice

that such evidence is to be destroyed, a defendant may request a

hearing.    N.C. Gen. Stat. § 15A-268(d).

    At the 10 January 2013 hearing, the State stipulated that

the evidence in question – duct tape without fingerprints, a

pair of shoes and other items of clothing collected from near

the crime scene, and a shoe impression – had been destroyed, and

asserted that it was not biological evidence pursuant to N.C.

Gen. Stat. § 15A-268.       At the close of the hearing, defendant

moved that the court conduct a hearing on the destruction of

evidence.    The court declined to do so, holding that the State

had stipulated that evidence had been destroyed, and that the

stipulation would be part of the court’s findings.              The trial
                                         -5-
court   further    found   that    the     evidence     in    question     was   not

biological evidence.

      Defendant failed to present evidence at the 10 January 2013

hearing that would support a finding that the destroyed evidence

was   biological    evidence      that    would   merit      a   hearing    on   its

destruction.      The statutory mandates of N.C. Gen. Stat. § 15A-

268, including a hearing at defendant’s request, apply only to

biological evidence.       Even assuming arguendo that the State did

not follow the procedures outlined in N.C. Gen. Stat. § 15A-268,

those procedures apply only to biological evidence.                        We hold

that the trial court did not err in denying defendant’s request

for a hearing.

      Defendant further contends that the trial court erred in

denying his motion to preserve evidence for DNA testing.                         N.C.

Gen. Stat. § 15A-269 provides that a defendant may file a motion

for post-conviction DNA testing of biological evidence provided

that the evidence in question:

           (1)     Is material to the defendant's defense.

           (2) Is related to the investigation or
           prosecution that resulted in the judgment.

           (3) Meets        either         of     the        following
           conditions:

           a.      It was not DNA tested previously.
                                       -6-
            b.   It was tested previously, but the
            requested DNA test 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.

N.C. Gen. Stat. § 15A-269(a) (2013).            As noted above, the trial

court found that the evidence in question was not biological

evidence, and that the evidence had been destroyed.                Nowhere in

defendant’s 10 December 2010 motion to preserve evidence, nor

during the 10 January 2013 hearing, did defendant offer any

support   for   an   argument   that     the    evidence   in    question    was

material.    Defendant offers only the vague allegation that the

evidence was material, without arguing why it was material.                   We

have   previously    held   that   a    mere   conclusory   statement       that

evidence is material, without more, is not sufficient to support

a motion to conduct DNA testing.               State v. Gardner, ___ N.C.

App. ___, ___, 742 S.E.2d 352, 356, disc. review denied, ___

N.C. ___, 749 S.E.2d 860 (2013) (citing State v. Foster, ___

N.C. App. ___, ___, 729 S.E.2d 116, 120 (2012)).                In the absence

of a showing that the evidence in question was material, we hold

that the trial court did not err in denying defendant’s motion

to preserve evidence for DNA testing.

       This argument is without merit.
                         -7-
AFFIRMED.

Judges STEPHENS and DAVIS concur.

Report per Rule 30(e).
