                                   NO. COA09-442-2

                        NORTH CAROLINA COURT OF APPEALS

                             Filed:      15 July 2014


STATE OF NORTH CAROLINA

    v.                                        Caldwell County
                                              No. 99 CRS 1677
DAVID FRANKLIN HURT



    Appeal by defendant from judgment entered 4 April 2008 by

Judge   Thomas    D.    Haigwood    in   Caldwell    County    Superior   Court.

Originally heard in the Court of Appeals 1 October 2009, with

opinion   filed    16    November     2010.     An   opinion    reversing   the

decision of the Court of Appeals and remanding for consideration

of issues not previously addressed by this Court was filed by

the Supreme Court of North Carolina on 27 June 2013.


    Roy Cooper, Attorney General, by Daniel                       P.   O’Brien,
    Assistant Attorney General, for the State.

    Staples Hughes, Appellate Defender, by Barbara S. Blackman,
    Assistant Appellate Defender, for defendant-appellant.


    DAVIS, Judge.


    This case is before this Court on remand from the Supreme

Court of North Carolina.            Our Supreme Court held that for the

reasons stated in State v. Ortiz-Zape, ___ N.C. ___, 743 S.E.2d

156 (2013), Defendant’s rights under the Confrontation Clause
                                           -2-
were not violated.          State v. Hurt, ___ N.C. ___, 743 S.E.2d 173

(2013).    On remand, we address Defendant’s remaining arguments.

      David Franklin Hurt (“Defendant”) appeals from a judgment

imposing a sentence in the aggravated range for second-degree

murder.    Specifically, Defendant alleges the trial court erred

by (1) denying his motion to dismiss the aggravating factor due

to   the   State’s    failure     to       establish       that   the    offense    was

especially heinous, atrocious, or cruel as to him; (2) quashing

the subpoena of a former prosecutor, thereby denying Defendant

the opportunity to elicit the State’s prior judicial admissions

and depriving him of his rights to due process, trial by jury,

presentation     of     a    defense,        and        compulsory      process;    (3)

overruling      Defendant’s       objection             and    motion     to      strike

testimonial     evidence      from     a    State       Bureau    of    Investigation

(“SBI”) agent; and (4) refusing to admit one of Defendant’s

exhibits   at   the    mitigation      phase       of    his   sentencing      hearing.

After careful review, we conclude that Defendant received a fair

trial free from prejudicial error.

                     Factual and Procedural Background

      The State presented evidence tending to show the following

facts:     On 26 February 1999,              law enforcement           officers    found

Howard Nelson Cook (“Mr. Cook”) dead in his home in Caldwell
                                       -3-
County.       Mr. Cook had sustained blunt force trauma, 12 major

stab wounds, and various other “cutting wounds” and abrasions.

Earlier that morning, Deputies Jason Beebee (“Deputy Beebee”)

and Joel Fish (“Deputy Fish”) of the Catawba County Sheriff’s

Office responded to a call from Nancy and Jody Hannah about a

white van that appeared to be stuck in their backyard.                 William

Parlier (“Mr. Parlier”) — Mr. Cook’s nephew — and Defendant had

been driving the van.             As the deputies approached the scene,

they encountered Mr. Parlier, who appeared to be intoxicated,

walking in the road.          The deputies also observed a white van

parked in front of a house they later learned belonged to Paula

Calloway (“Ms. Calloway”), Defendant’s girlfriend.

      The deputies arrested Mr. Parlier on an outstanding warrant

and transported him to the Catawba County Jail.                   The deputies

discovered four one-dollar bills with reddish-brown stains on

Mr. Parlier’s person.         Deputy Fish returned to the location of

the white van while other officers went to check on Mr. Cook at

his   house    based   on   Mr.    Parlier’s   statement   that    “[t]he   man

inside that house killed my uncle.”             Deputy David Bates of the

Caldwell County Sheriff’s Office found the door of Mr. Cook’s

house open and the body of Mr. Cook lying on the floor in a

large puddle of blood.
                                      -4-
      Earlier that evening, Defendant and Mr. Parlier had arrived

at   Ms.   Calloway’s   home    in    a    white     van.      Ms.   Calloway   and

Defendant went to sleep and when they awoke, Mr. Parlier was

leaving in the van.     Defendant and Ms. Calloway went looking for

the van and found it stuck in a yard.                 Defendant freed the van

and drove it back to Ms. Calloway’s house.                   Soon thereafter, law

enforcement officers came to Ms. Calloway’s house, and Deputy

Fish found Defendant in Ms. Calloway’s bed, under the covers,

wearing     white   pants      with       darkened     reddish-brown       stains.

Defendant’s     sweatshirt     and    boots    were         also   tarnished    with

reddish-brown spots.        The SBI later conducted a DNA analysis on

Defendant’s sweatshirt and boots and determined that both of

these items contained Mr. Cook’s blood.

      On 15 March 1999, Defendant was indicted by a grand jury in

Caldwell County for first-degree murder, burglary, and robbery.

Mr. Parlier was also charged with the first-degree murder of Mr.

Cook.      Pursuant to a plea bargain, Mr. Parlier pled guilty to

first-degree murder and received a sentence of life in prison.

After Mr. Parlier reneged on his promise to testify against

Defendant, the State agreed to negotiate a plea with Defendant,

and on 26 August 2002, Defendant pled guilty to second-degree
                                              -5-
murder in exchange for the dismissal of the remaining charges.1

The trial judge sentenced Defendant to the maximum aggravated

range of 276 to 341 months imprisonment.

         Defendant appealed, and on 6 April 2004, this Court vacated

and remanded, concluding that the trial court erred in utilizing

the      fact    that     Defendant       joined    with    one     other     person    in

committing the offense as an aggravating factor.                         State v. Hurt,

163 N.C. App. 429, 430, 594 S.E.2d 51, 52 (2004).                           We explained

that N.C. Gen. Stat. § 15A-1340.16(d)(2) provides grounds for

sentencing a defendant to the aggravated range in circumstances

where despite joining with more than one person to commit the

offense,        the     defendant     was     not   charged       with    committing    a

conspiracy.           Id. at 434, 594 S.E.2d at 55.           Because the evidence

indicated Defendant only conspired with one person — Mr. Parlier

—   we    held    that     N.C.    Gen.     Stat.   §   15A-1340.16(d)(2)       did    not

apply.      Id.       We further concluded that Defendant’s participation

with     Mr.     Parlier    was    not    a   proper     non-statutory       aggravating

factor     because       the      General     Assembly     “carefully       crafted    the



1
  In the prosecutor’s submission to the trial court of the
factual basis for Defendant’s plea to second-degree murder, he
indicated   that   without  Mr.   Parlier’s   testimony  against
Defendant, the State’s evidence that Mr. Parlier was the one who
committed the stabbing was much stronger than the evidence
against Defendant and that was the basis for proceeding against
Defendant only on a charge of second-degree murder.
                                            -6-
statutory language to require that a defendant join with more

than one other person to support the finding of an aggravating

factor on these grounds.”              Id. at 435, 594 S.E.2d at 55.

       Our     Supreme      Court    reversed     the      decision     of   this   Court,

concluding that the fact that Defendant joined with one other

person in the commission of an offense yet was not charged with

conspiracy was reasonably related to the purposes of sentencing

and was thus a proper non-statutory aggravating factor under

N.C. Gen. Stat. § 15A-1340.16(d)(20).                       State v. Hurt, 359 N.C.

840, 844, 616 S.E.2d 910, 913 (2005).                        The Court remanded for

resentencing on different grounds in accordance with Blakely v.

Washington,       542    U.S.       296,   159    L.Ed.2d        403   (2004),      because

Defendant’s       sentence      exceeded       the     statutory       maximum    and    the

upward durational departure from the presumptive range was based

solely on judicially-found facts.                    Id. at 845-46, 616 S.E.2d at

913-14.        Upon reconsideration, our Supreme Court vacated its

earlier opinion in part and remanded the case with instructions

to    remand    to    the    trial    court      for   a   new    sentencing     hearing.

State v. Hurt, 361 N.C. 325, 332, 643 S.E.2d 915, 919 (2007).

The    Supreme       Court    explained       that     “[i]f     the   State     seeks   an

aggravated sentence upon remand, the trial court can consider
                                          -7-
the   evidence    then    presented        to    determine        which    aggravating

factors may be submitted to the jury.”                Id.

      A jury was empaneled for the purpose of determining the

presence of aggravating factors on 2 December 2007 in Caldwell

County      Superior    Court.        A    mistrial        was    declared    due    to

misconduct by a juror.           A new trial commenced on 31 March 2008.

At the outset of the trial, the trial judge informed the jury

that Defendant had previously entered a guilty plea for second-

degree murder and that the State was now seeking to establish

the existence of the aggravating factor that the offense                             to

which    Defendant      had    pled       guilty     was     especially       heinous,

atrocious, or cruel.

      The     State      presented        evidence         that     Defendant       had

participated     with    Mr.     Parlier        in   the    vicious       beating   and

stabbing of Mr. Cook.          The State’s evidence tended to show that

(1) Defendant drove himself and Mr. Parlier to Mr. Cook’s house;

(2)   Defendant’s      clothing    and     boots     tested       positive    for   Mr.

Cook’s blood; (3) a cigarette butt found outside Mr. Cook’s door

tested positive for blood and Defendant’s DNA; and (4) Defendant

drove Mr. Parlier and himself away from the crime scene and to

his girlfriend’s house.
                                       -8-
       Special Agent David Freeman (“Special Agent Freeman”) of

the    DNA    unit    of   the   forensic    biology   section    of   the    SBI

testified that the end of the cigarette butt containing saliva

found outside Mr. Cook’s house matched Defendant’s DNA and that

a pair of blue jeans found in the van had Mr. Cook’s blood on

them    as    did    Defendant’s   shirt     and   boots.   The    State     also

presented evidence regarding the specific manner of Mr. Cook’s

death.       Dr. Patrick Lantz, a forensic pathologist and a medical

examiner for Forsyth County, explained that six of the twelve

major stab wounds struck vital organs.                 He further testified

that each of these wounds would have been painful and would have

caused bleeding both inside and outside of Mr. Cook’s body.                  Dr.

Lantz noted, however, that none of the wounds would have caused

an immediate loss of consciousness, meaning that Mr. Cook likely

would have been awake for approximately five to ten minutes

before he lost consciousness due to blood loss.              Dr. Lantz then

opined that an additional five to ten minutes probably passed

between the time Mr. Cook lost consciousness and the time he

died.

       At the conclusion of the State’s evidence, Defendant made a

motion to dismiss the jury’s consideration of the aggravating

factor that this offense was especially heinous, atrocious, or
                                       -9-
cruel,    arguing    that    the   State     had   not   presented   sufficient

evidence that Defendant had participated in the actual killing

of Mr. Cook.       Defendant contended that the State’s evidence may

have placed Defendant at the crime scene but that it did not

establish Defendant’s actual participation in the murder itself.

The trial court denied Defendant’s motion, and Defendant did not

present any evidence at this proceeding.

    On 3 April 2008, the jury returned a verdict finding that

the offense was especially heinous, atrocious, or cruel.                     The

trial court then heard evidence regarding mitigating factors, at

which time Defendant argued that the State had offered evidence

showing only that he brought Mr. Parlier to Mr. Cook’s house,

was present at the front door, and had driven himself and Mr.

Parlier away from the scene of the crime.                      The trial court

rejected the argument that Defendant was a passive participant

in the murder and declined to find any non-statutory mitigating

factors.        The court found three statutory mitigating factors:

(1) that Defendant supported his family; (2) that Defendant had

a support system in the community; and (3) that Defendant had a

positive   employment       history   or     was   gainfully   employed.     The

trial court found that the aggravating factor outweighed the

factors    in    mitigation    and    that    an    aggravated    sentence   was
                                      -10-
therefore appropriate.         The trial court imposed a sentence in

the maximum aggravated range of 276 to 341 months, and Defendant

appealed.

      Defendant raised five arguments on appeal.                  In State v.

Hurt, 208 N.C. App 1, 702 S.E.2d 82 (2010), this Court held that

the   introduction      of     certain        forensic     evidence      violated

Defendant’s    rights     under       the     Confrontation      Clause,      and,

therefore, Defendant was entitled to a new sentencing hearing.

For this reason, we declined to address Defendant’s remaining

arguments on appeal.      Id. at 6, 702 S.E.2d at 87.             Discretionary

review was allowed, and our Supreme Court reversed, holding that

for   the   reasons   stated    in     Ortiz-Zape     no     violation   of    the

Confrontation Clause had occurred.              Therefore, we now consider

Defendant’s remaining four issues on appeal.

                                  Analysis

I. Denial of Motion to Dismiss

      Defendant   first      argues    that    the   trial    court   erred    in

denying his motion to dismiss due to the State’s failure to

introduce substantial evidence that the offense was especially

heinous, atrocious, or cruel.          We disagree.

      Questions of sufficiency of the evidence are reviewed under

the substantial evidence test.               See State v. Brewington, 352
                                       -11-
N.C. 489, 525-26, 532 S.E.2d 496, 517-18 (2000), cert. denied,

531 U.S. 1165, 148 L.Ed.2d 992 (2001).                In determining whether

sufficient evidence supported the trial court’s submission of

the especially heinous, atrocious, or cruel aggravator to the

jury, the reviewing court must view the evidence in the light

most favorable to the State, giving the State the benefit of all

reasonable inferences.          State v. Flippen, 349 N.C. 264, 270, 506

S.E.2d 702, 706 (1998), cert. denied, 526 U.S. 1135, 143 L.Ed.2d

1015 (1999).         “If the evidence supports a reasonable inference

of defendant’s guilt based on the circumstances, then it is for

the   jurors    to    decide   whether   the    facts,     taken    singly   or   in

combination, satisfy them beyond a reasonable doubt.”                     State v.

Campbell, 359 N.C. 644, 682, 617 S.E.2d 1, 24 (2005) (citations,

quotation marks, and brackets omitted), cert. denied, 547 U.S.

1073, 164 L.Ed.2d 523 (2006).

              To be substantial, the evidence need not be
              irrefutable or uncontroverted; it need only
              be such as would satisfy a reasonable mind
              as being adequate to support a conclusion.
              For purposes of a motion to dismiss,
              evidence is deemed less than substantial if
              it raises no more than mere suspicion or
              conjecture as to the defendant’s guilt.

State   v.    Butler,    356   N.C.   141,    145,   567   S.E.2d     137,   139-40

(2002) (citation and internal quotation marks omitted).                           The

inquiry      into    whether   substantial     evidence    has     been   presented
                                         -12-
examines “the sufficiency of the evidence presented but not its

weight.”        State v. McNeil, 359 N.C. 800, 804, 617 S.E.2d 271,

274 (2005) (citation omitted).

       A    defendant’s    role     or    presence      is   simply    one    of   the

circumstances of a murder to be considered when viewing the

evidence in the light most favorable to the State.                           Evidence

showing a less active role by a defendant or absence from the

scene does not preclude submission of the aggravating factor to

the jury as a matter of sufficiency of the evidence but rather

goes       to   the   weight     that    the    jury    might    put   toward      its

consideration of the aggravating factor.                     Brewington, 352 N.C.

at 525, 532 S.E.2d at 517 (holding that lack of participation

does   not      preclude   submission      to   jury    of   especially      heinous,

atrocious, or cruel aggravating factor).

       Defendant      contends    that    the   State    presented     no    evidence

establishing that he directly participated in the killing of Mr.

Cook as no evidence was presented regarding his role in the

actual      perpetration    of    the    homicide.       Accordingly,        Defendant

argues that the State’s failure to submit any evidence that

Defendant played an active role in the actual murder precludes a

finding by the jury beyond a reasonable doubt that the murder

was especially heinous, atrocious, or cruel as to Defendant.
                                          -13-
      However, our Supreme Court has held that lack of presence

at or participation in a codefendant’s gruesome murder does not

preclude the submission to the jury of the especially heinous,

atrocious, or cruel aggravating factor.                    Rather, it is a matter

for the jury to consider in determining the weight to give the

aggravating factor.           Id.

      In Brewington, the defendant was convicted of first-degree

murder, conspiracy to commit murder, and arson.                        Id. at 493, 532

S.E.2d   at     499.         On   appeal,     he    argued      that     the    jury     had

impermissibly        found    the     existence     of   the    especially        heinous,

atrocious, or cruel aggravating factor based on the actions of

his codefendants.           He conceded that the murders for which he was

convicted were especially heinous, atrocious, or cruel.                               Id. at

523, 532 S.E.2d at 516.             However, he maintained that although he

had   planned      the     murders,    the   jury    could      not    have    found     the

existence     of     the    aggravating      circumstance        as    to   him   because

there was no evidence that he was personally responsible for the

manner in which they were carried out or that he was actually

present at the time they were committed.                   Id.        Our Supreme Court

rejected      this       argument,     explaining        that    “[t]he        fact     that

defendant was not present when the murders occurred, and that a

codefendant actually committed the murders, is a matter that a
                               -14-
jury would properly consider in determining the weight to give

an aggravating circumstance and in balancing the aggravating and

mitigating circumstances.”   Id. at 525, 532 S.E.2d at 517.

    Similarly, in the present case, Defendant does not dispute

the fact that the manner in which Mr. Cook was murdered was

sufficient to support the submission of the especially heinous,

atrocious, or cruel aggravating factor to the jury.       Instead,

Defendant asserts that the aggravating factor was erroneously

submitted to the jury as to him.

    Recognizing that a defendant need not be physically present

for the commission of the crime in order for this aggravating

factor to be submitted to the jury, we believe that in this

case, when viewing the evidence in the light most favorable to

the State, a reasonable inference can be drawn that Defendant

did actively participate in the murder of Mr. Cook.     Unlike in

Brewington, where the evidence established that the defendant

was not physically present for the commission of the murders,

the circumstantial evidence presented here permits a reasonable

inference that Defendant had a personal role in the murder of

Mr. Cook in that (1) Defendant had Mr. Cook’s blood on him; (2)

Defendant drove Mr. Parlier and himself away from the scene of

the murder and to his girlfriend’s house; and (3) a cigarette
                                       -15-
butt with blood and Defendant’s saliva on it was found at Mr.

Cook’s home.      See, e.g., State v. Demery, 113 N.C. App. 58, 61-

64, 437 S.E.2d 704, 707-08 (1993) (holding that circumstantial

evidence including blood typing and hair analysis was sufficient

to submit to jury question of whether defendant was perpetrator

of murder).       Accordingly, we hold that the trial court did not

err in denying Defendant’s motion to dismiss.

II. Motion to Quash Subpoena

     Defendant      next    contends    that      the   trial    court      erred    in

granting   the    State’s    motion    to     quash     the    subpoena     of    Jason

Parker    (“Mr.   Parker”),    one     of   the     prosecutors        at   the   2002

hearing    on    Defendant’s   guilty       plea.       A     motion   to    quash    a

subpoena is addressed to the sound discretion of the trial court

and is not subject to review absent a showing of an abuse of

discretion.2      State v. Newell, 82 N.C. App. 707, 709, 348 S.E.2d

158, 160 (1986).        An abuse of discretion occurs only where a

trial court’s ruling was “manifestly unsupported by reason or

[was] so arbitrary that it could not have been the result of a



2
  In his brief, Defendant argues that the trial court’s ruling on
this issue deprived him of his constitutional rights to due
process, trial by jury, presentation of a defense, and
compulsory process.     However, Defendant did not raise these
constitutional claims in the trial court.    Therefore, any such
constitutional issues have been waived.     State v. Moses, 205
N.C. App. 629, 635, 698 S.E.2d 688, 693 (2010).
                                         -16-
reasoned decision.”          State v. White, 349 N.C. 535, 552, 508

S.E.2d 253, 264 (1998) (citation and quotation marks omitted),

cert. denied, 527 U.S. 1026, 144 L.Ed.2d 779 (1999).

      At the hearing, Defendant sought to have Mr. Parker testify

about the factual basis the State proffered at Defendant’s plea

hearing — that the State believed Mr. Parlier killed Mr. Cook

and that the State had no physical evidence placing Defendant

inside the house when the murder occurred.                      Defendant argues

that Mr. Parker’s statements regarding the State’s acceptance of

Defendant’s guilty plea to second-degree murder established his

guilt    as   merely   an   aider   and    abettor     rather    than    an   active

participant in the murder.           However, Defendant mischaracterizes

Mr.     Parker’s    statements      at    his   plea    hearing     as    judicial

admissions.       A recitation of the factual basis for a guilty plea

is not a judicial admission.             Rather, a prosecutor’s summary of

the facts supporting the plea is merely one procedural mechanism

by which a judge may find that a factual basis exists for the

plea.     See N.C. Gen. Stat. § 15A-1022(c) (2013) (prohibiting

trial     judge     from    accepting       guilty     plea     “without      first

determining that there is a factual basis for the plea” which

may be based on “[a] statement of the facts by the prosecutor”).

      A judicial admission, conversely, is “a formal concession
                                                -17-
made by a party . . . in the course of litigation for the

purpose      of    withdrawing           a    particular         fact    from     the      realm     of

dispute. . . . Such an admission is not evidence, but rather

removes the admitted fact from the field of evidence by formally

conceding its existence.”                     Jones v. Durham Anesthesia Assocs.,

P.A.,       185    N.C.      App.    504,      509,       648    S.E.2d       531,       535   (2007)

(citation          omitted).             Mr.        Parker’s         statements           were      not

“concessions,”            nor   were         they     offered        “for     the     purpose        of

withdrawing         a     particular         fact     from       the    realm       of    dispute.”

Consequently,           we   are     not     persuaded          by   Defendant’s         contention

that the trial court’s decision to quash the subpoena deprived

him    of    the    opportunity          to    elicit       binding       admissions           on   the

State.

       Defendant has failed to demonstrate that the trial court

abused its discretion in quashing the subpoena of Mr. Parker.

The trial court allowed the State’s motion to quash after the

State argued there was no compelling reason for Mr. Parker’s

live    testimony         and   that         requiring      Mr.      Parker     to       testify     in

person was unduly burdensome and unreasonable.                                 In quashing the

subpoena, the trial court expressly noted that there were other

ways    for       Defendant         to   show       the    absence       of     the      especially

heinous,      atrocious,            or   cruel      aggravator          without       calling       the
                                               -18-
original prosecutor for Defendant’s case to the stand.

       Indeed, we note that during the mitigation phase, Defendant

was able to introduce               the statements previously made by Mr.

Parker in his recitation during the plea hearing through the

admission of Defendant’s Exhibit 9, which contained Mr. Parker’s

statements      as     transcribed           from      the       plea     hearing.           While

Defendant      maintains         that     he     nonetheless            suffered      prejudice

because   Mr.    Parker’s         statements          were    never       before     the     jury,

Defendant      does       not     dispute       the       fact     that        he   could       have

introduced      this      exhibit      during       the    aggravation          phase      of    the

proceeding.      As such, we cannot say that the trial court abused

its discretion in quashing the subpoena.

III.    Denial       of     Motion      to     Strike        Special        Agent     Freeman’s

Testimony

       Defendant       next      argues       that     the       trial      court     erred       in

overruling      his       objection     and     motion       to    strike       Special      Agent

Freeman’s testimony regarding the general percentages of cases

in    which    the    SBI     laboratory        is    able       to     find    a   DNA     match.

Defendant      contends         that    this      testimony           was      irrelevant        and

undependable “as the jury could not have reliably determined

[Defendant’s] role from the fact that blood matching the victim

was    found    on    his       clothing”      and     that       Special       Agent     Freeman
                                   -19-
“essentially told the jury that a DNA match establishes that a

person committed an offense, whereas the absence of                   a match

establishes that a person did not.”

    Evidence is relevant if it has “any tendency to make the

existence   of     any    fact   that     is    of    consequence     to   the

determination of the action more probable or less probable than

it would be without the evidence.”             N.C.R. Evid. 401.      Although

a trial court’s relevancy determinations are not discretionary

and, therefore, are not reviewed for abuse of discretion, this

Court   gives    such    determinations    great     deference   on   appeal.

State v. Grant, 178 N.C. App. 565, 573, 632 S.E.2d 258, 265

(2006), appeal dismissed and disc. review denied, 361 N.C. 223,

642 S.E.2d 712 (2007).        Relevant evidence may be excluded under

Rule 403 “if its probative value is substantially outweighed by

the danger of unfair prejudice,           confusion of the       issues, or

misleading the jury.”         N.C.R. Evid. 403.         A trial court has

discretion whether or not to exclude evidence under Rule 403,

and a trial court’s determination will only be disturbed upon a

showing of an abuse of that discretion.              Campbell, 359 N.C. at

674, 617 S.E.2d at 20.

    At Defendant’s sentencing hearing,               Special Agent Freeman

was asked in what percentage of cases the SBI was able to find a
                                            -20-
DNA match, and he testified as follows:

               Of   the   cases   the   [sic]  we   obtain
               approximately seventy percent of them are
               able to determine a match. In approximately
               thirty percent then we’ll say that there
               isn’t a match and that person couldn’t have
               committed the crime.

Even   assuming,       without       deciding,      that    this     testimony      lacked

relevance, Defendant has failed to show that any such error was

prejudicial.        State      v.    Oliver,      210    N.C.     App.    609,    615,   709

S.E.2d 503, 508 (“The admission of evidence which is technically

inadmissible will be treated as harmless unless prejudice is

shown such that a different result likely would have ensued had

the evidence been excluded.                   Further, it is the defendant’s

burden    to    show     prejudice         from    the    admission       of     evidence.”

(citations and quotation marks omitted)), disc. review denied,

365 N.C. 206, 710 S.E.2d 37 (2011).

       This portion of Special Agent Freeman’s testimony was from

the preliminary stages of his direct examination, during which

he was asked about his qualifications, the nature of DNA, and

the process by which DNA matching is done in the laboratory.

Special    Agent       Freeman       had    not    yet     begun    testifying       about

Defendant’s       case    in        particular;         rather,     he     was    speaking

generally about the nature of his work.

       Moreover,    Defendant         misconstrues        Special        Agent    Freeman’s
                                      -21-
testimony.       Defendant asserts that, in essence, Special Agent

Freeman told the jury that a DNA match indicates the person

whose DNA was tested actually committed the offense.                          However,

that is not what Special Agent Freeman stated in his testimony.

Rather, he explained that where no match is found, the person in

question   could    not    have    committed       the   crime.         He    did    not

affirmatively state        that when a match is found, the subject

definitely committed the crime.

    Defendant has failed to show prejudicial error by the trial

court in allowing this testimony.             Accordingly, this argument is

overruled.

IV. Refusal to Admit Notebook Offered by Defendant

    Defendant’s         final   argument    on    appeal    is    that       the   trial

court erred in      excluding Defendant’s Exhibit 3                 —    a notebook

prepared   for    the    2002    sentencing       proceedings     that       contained

recitations of Mr. Parlier’s multiple confessions, a forensic

blood   spatter    expert       report,    and    medical    reports         regarding

Defendant’s alcohol consumption — during the mitigation phase of

sentencing.

    N.C. Gen. Stat. § 15A-1340.16(a) requires a trial court to

consider evidence of aggravating and mitigating factors during

sentencing.        The    trial    court     is     given   wide        latitude      in
                                      -22-
conducting sentencing hearings, including the ability to weigh

the credibility of the evidence in determining the existence of

mitigating factors.          State v. Mabry, 217 N.C. App. 465, 471, 720

S.E.2d 697, 702 (2011).          A defendant who seeks a sentence in the

mitigated range bears the burden of persuading the court by a

preponderance of the evidence.             N.C. Gen. Stat. § 15A-1340.16(a)

(2013).

      “Although the formal rules of evidence do not apply in

sentencing hearings, evidence offered at sentencing must be both

pertinent      and     dependable.        While   the    court     may   base     its

sentencing decision on reliable hearsay, [a] defendant is not

entitled    to       consideration   of     hearsay     evidence    that     is   of

doubtful credibility.”          State v. Reed, 93 N.C. App. 119, 125,

377   S.E.2d     84,    88   (internal     citations     and     quotation      marks

omitted and emphasis added), disc. review denied, 324 N.C. 580,

381 S.E.2d 779 (1989).            The trial court’s failure to find a

mitigating factor when evidence is offered in support of that

factor will not be overturned on appeal unless the supporting

evidence “is uncontradicted, substantial, and there is no reason

to doubt its credibility.”           State v. Lane, 77 N.C. App. 741,

745, 336 S.E.2d 410, 412 (1985).

      Defendant argues that the trial court committed reversible
                                         -23-
error    when    it    refused   to    consider     his    “mitigation    report”

because it deprived him of the opportunity to present mitigating

evidence.       We disagree.      The trial court declined to admit the

notebook marked as Defendant’s Exhibit 3 and instead asked that

Defendant       call   live   witnesses     from    his    witness    list.      In

reaching this decision, the trial judge expressed his concerns

about considering Defendant’s written documents over live in-

court testimony, stating as follows:

               [J]ust simply handing something up, a piece
               of      paper      writing,     unsupported,
               unauthenticated, over objection — when you
               handed me a list of ten or fifteen witnesses
               that you were going to call. . . who have
               information set forth in this report on
               mitigation, some of which were brought back
               from prison units and are in facilities here
               adjacent to the courtroom and courthouse
               that could be produced.       I’m going to
               sustain the [State’s] objection.       These
               people are going to be produced in this
               courtroom.

       Thus,     the    trial    court     did     not    refuse     to   consider

Defendant’s mitigation evidence.                Instead, the trial court was

simply informing Defendant of its preference for live testimony.

Furthermore, our review of the transcript reveals that Defendant

was,    in   fact,     allowed   to   introduce     certain   portions     of   the

documents contained in Defendant’s Exhibit 3, including (1) the

affidavit of Mr. Parlier; and (2) parts of the plea hearing.
                                        -24-
Defendant   also    offered     live     testimony   from    Mr.   Parlier   and

testified   on     his   own    behalf     during    the    mitigation   phase.

Defendant has failed to show how the trial court’s refusal to

admit Exhibit 3 in its entirety deprived him of the opportunity

to   present     evidence      of   a   mitigating    factor.       Therefore,

Defendant’s argument on this issue lacks merit.

                                    Conclusion

     For these reasons, we conclude that Defendant received a

fair trial free from prejudicial error and affirm the sentence

imposed by the trial court.

     NO PREJUDICAL ERROR; AFFIRMED.

     Judges STEPHENS and HUNTER, JR. concur.
