               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA17-1308

                               Filed: 2 October 2018

Cabarrus County, Nos. 12 CRS 50232, 50239-41, 50570-71, 14 CRS 602

STATE OF NORTH CAROLINA

              v.

ANTHONY MARCELLIOUS TILGHMAN, Defendant.


        Appeal by Defendant from order entered 2 June 2017 by Judge Martin B.

McGee in Cabarrus County Superior Court. Heard in the Court of Appeals 16 May

2018.


        Attorney General Joshua H. Stein, by Assistant Attorney General Rana M.
        Badwan, for the State.

        Appellate Defender Glenn Gerding, by Assistant Appellate Defender Wyatt B.
        Orsbon, for defendant-appellant.


        HUNTER, JR., Robert N., Judge.


        Anthony Marcellious Tilghman (“Defendant”) appeals from an order denying

his pro se motion for postconviction DNA testing and to locate and preserve evidence.

Defendant contends the trial court erred by: (1) denying his motion for DNA testing

prior to ordering and receiving an inventory of all physical and biological evidence;

and (2) denying his motion because he sufficiently established his entitlement to

appointment of counsel. We dismiss in part and affirm in part.

                       I. Factual and Procedural History
                                       STATE V. TILGHMAN

                                        Opinion of the Court



       On 8 September 2014, in accordance with a plea agreement, Defendant pled

guilty to five counts of robbery with a dangerous weapon and four counts of second

degree kidnapping.         The trial court consolidated the charges and sentenced

Defendant to two consecutive terms of 72 to 99 months imprisonment. Defendant did

not appeal from his guilty pleas.

       Three years later, on 13 March 2017, Defendant filed a motion for appropriate

relief (“MAR”). On 14 March 2017, Defendant filed a pro se “Motion to Locate and

Preserve Evidence” and “Motion for Post-Conviction DNA Testing” in Cabarrus

County Superior Court. Defendant listed eighteen pieces of physical and biological

evidence he desired to be tested and requested the court appoint him legal counsel to

assist him in prosecuting the motions.

       On 2 June 2017, the trial court entered an order denying both of Defendant’s

motions.1 The court found “Judge Kevin M. Bridges entered an order disposing of the

evidence.” The court also found “Defendant’s Motion is frivolous and no hearing is

necessary. The Defendant’s Motion fails to set forth any credible basis in law or fact

to support his requests.” Defendant timely filed written notice of appeal on 14 June

2017. After settlement of the record and the filing of briefs, Defendant filed a petition

for writ of certiorari on 19 March 2018.

                                        II. Jurisdiction


       1 The trial court labeled Defendant’s motions as one motion; however, the order addresses both
of Defendant’s motions.

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                                   Opinion of the Court



      N.C. Gen Stat. § 15A-270.1 allows a defendant to “appeal an order denying the

defendant’s motion for DNA testing . . . .” N.C. Gen. Stat. § 15A-270.1 (2017). See

also State v. Doisey, 240 N.C. App. 441, 445-46, 770 S.E.2d 177, 180 (2015). Our case

law allows a defendant to appeal a denial of the appointment of counsel supplemental

to this DNA motion. See State v. Gardner, 227 N.C. App. 364, 366, 742 S.E.2d 352,

354 (2013). Thus, this Court has jurisdiction over Defendant’s arguments regarding

his written request for DNA testing and appointment of counsel. As for Defendant’s

appellate arguments regarding alleged failures to inventory evidence, we, in our

discretion, grant Defendant’s petition for writ of certiorari should his notice of appeal

be imperfect. N.C. R. App. P. 21 (2017).

                              III. Standard of Review

      Our standard of review of a trial court’s denial of a motion for postconviction

DNA testing is “analogous to the standard of review for a motion for appropriate

relief.” Gardner, 227 N.C. App. at 365, 742 S.E.2d at 354 (citation omitted). Findings

of fact are binding on appeal if they are supported by competent evidence, and we

review conclusions of law de novo. State v. Turner, 239 N.C. App. 450, 452, 768 S.E.2d

356, 358 (2015) (citation omitted). We also review whether the trial court complied

with a statutory mandate, which is a question of law, de novo. State v. Mackey, 209

N.C. App. 116, 120, 708 S.E.2d 719, 721 (2011) (citation omitted).

                                     IV. Analysis



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                                   STATE V. TILGHMAN

                                    Opinion of the Court



         Defendant’s appellate argument is two-fold: (1) the trial court erred by denying

his motion for DNA testing because he was entitled to appointment of counsel; and

(2) the trial court erred by denying his motion to DNA testing prior to obtaining an

inventory of evidence.

A. Entitlement to Appointment of Counsel

         Defendant argues the court erred in denying his motion because N.C. Gen.

Stat. § 15A-269 entitles him to appointment of counsel.

         N.C. Gen. Stat. § 15A-269 states:

               the court shall appoint counsel for the person who brings a
               motion under this section if that person is indigent. If the
               petitioner has filed pro se, the court shall appoint counsel
               for the petitioner in accordance with the rules adopted by
               the Office of Indigent Defense Services upon a showing
               that the DNA testing may be material to the petitioner’s
               claim of wrongful conviction.

N.C. Gen. Stat. § 15A-269(c) (2017) (emphasis added).

         Our case law places the burden of proof to show materiality on the moving

party.     To meet this burden, a moving defendant must allege “more than the

conclusory statement that the ability to conduct the requested DNA testing is

material to the defendant’s defense.” Gardner, 227 N.C. App. at 369, 742 S.E.2d at

356 (quotation marks and alterations omitted) (citing State v. Foster 222 N.C. App.

199, 205, 729 S.E.2d 116, 120 (2012)). Merely asserting conclusory statements that

DNA testing could be material to the defense and, if tested, would exonerate



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                                   STATE V. TILGHMAN

                                    Opinion of the Court



defendant are insufficient meet this burden. See Turner, 239 N.C. App. at 455-56,

768 S.E.2d at 359 (holding defendant’s assertion “[t]he ability to conduct the

requested DNA testing is material to [his] defense” was conclusory and, therefore,

insufficient to establish materiality under the statute); Gardner, 227 N.C. App. at

369-70, 742 S.E.2d at 356 (holding a defendant who pled guilty to fifteen counts of

statutory rape failed to meet his burden of materiality when he used a standardized

form which provided no space to include an explanation of materiality for DNA

testing).

       In this case, Defendant entered a guilty plea and did not present any defense

to the trial court.   Recently, our Court acknowledged a guilty plea increases a

defendant’s burden to show materiality. See State v. Randall, ___ N.C. App. ___, ___,

817 S.E.2d 219, ___, slip op. at *4 (N.C. Ct. App. June 5, 2018) (acknowledging “the

inherent difficulty in establishing the materiality required by N.C. Gen. Stat. § 15A-

269 for a defendant who pleaded guilty[.]”). However, the Court stated it did “not

believe that the statute was intended to completely forestall the filing of such a

motion where a defendant did, in fact, enter a plea of guilty.” Id. at ___, 817 S.E.2d

at ___, slip op. at *4. “The trial court is obligated to consider the facts surrounding a

defendant’s decision to plead guilty in addition to other evidence, in the context of the

entire record of the case, in order to determine whether the evidence is ‘material.’ ”

Id. at ___, 817 S.E.2d at ___, slip op. at *4-*5 (citation omitted).



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                                 STATE V. TILGHMAN

                                  Opinion of the Court



      Defendant’s statements of materiality are indistinguishable from Gardner and

Turner. Defendant asserted in his motion for DNA testing the “evidences need to be

tested and preserved for the purpose of DNA testing where the results would prove

that the Defendant was NOT the perpetrator of the crimes allegedly committed[.]”

Defendant further argued he was intoxicated and under the influence of drugs, he

never participated in the crime, and he was coerced to take the plea deal and “the

DNA results would prove it.” Additionally, Defendant maintains the items listed

“[w]ere not subject to DNA testing, and today’s technology would allow the testing of

DNA provide results that are significantly more accurate and probati[ve] of the

identity of the perpetrator in which, will exonerate Defend[a]nt.”

      Defendant asserts these statements taken together meet his evidentiary

burden and are not merely conclusory statements. We conclude otherwise and hold

the aggregation of Defendant’s conclusory statements communicates the same

conclusory effect. See State v. Collins, 234 N.C. App. 398, 411-12, 761 S.E.2d 914,

922-23 (2014) (holding defendant’s statements, in both his pro se motion and amended

affidavit, concerning “DNA [e]xperts,” a “new technique known as ‘Touch DNA[,]’ ”

and the ability to subject items to “newer and more accurate testing which would

provide results that are significantly more accurate and probative” were each

conclusory on their own merit, and, thus, defendant failed to meet the materiality

burden under the statute).



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                                          STATE V. TILGHMAN

                                           Opinion of the Court



      Defendant’s assertions are incomplete. He provided no information suggesting

how new testing is different and more accurate. “Without more specific detail from

Defendant, or some other evidence, the trial court [cannot] adequately determine

whether additional testing would be significantly more accurate and probative[.]” Id.

at 412, 761 S.E.2d at 923. Accordingly, and in light of Defendant’s guilty plea, we

hold Defendant failed to meet his burden of showing materiality under N.C. Gen.

Stat. § 15A-269(c).2         We affirm this portion of the trial court’s order denying

Defendant’s motion.


         2 The trial court’s order is devoid of an explicit mention of materiality. Defendant did not bring

forth any appellate argument regarding the lack of specific findings or conclusions of law addressing
N.C. Gen. Stat. § 15A-269. It is not the role of this Court to make arguments for appellants. Viar v.
N.C. Dep’t of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005) (“It is not the role of the appellate
courts . . . to create an appeal for an appellant.”). Nonetheless, we address this issue, as it may have
frustrated our appellate review.
           In Gardner, our Court did not require specific findings of fact or conclusions of law in the trial
court’s order denying defendant’s motion for postconviction DNA testing. Our Court concluded the
trial court’s order was sufficient based on the following: (1) the court’s statement it reviewed the
allegations in defendant’s motion; (2) the court citing N.C. Gen. Stat. § 15A-269(b); (3) other findings;
and (4) the court’s conclusion defendant failed to show the existence of any grounds for relief. 227 N.C.
App. at 370, 742 S.E.2d at 356-57. In an unpublished decision, our Court extended the rule in Gardner.
State v. Cade, No. COA14-785, 2015 WL 661171, at *2 (unpublished) (N.C. Ct. App. Feb. 17, 2015)
(citation omitted). There, the order did not cite to N.C. Gen. Stat. § 15A-269. 2015 WL 661171, at *2.
However, the order included a statement the trial court reviewed the motion, files, and applicable law.
2015 WL 661171, at *2. The trial court concluded there was no basis in law or fact for the motions,
Defendant did not establish a viable claim, and there was no merit to the motion. 2015 WL 661171,
at *2. Our Court held the trial court did not err by failing to include more specific findings of fact or
conclusions of law. 2015 WL 661171, at *2. Moreover, in State v. Cox, our Court reviewed a trial
court’s oral denial of defendant’s motion for preservation and inventory of evidence and postconviction
DNA testing. 245 N.C. App. 307, 781 S.E.2d 865 (2016). Here, the trial court stated it “carefully”
reviewed Defendant’s motion, the clerk’s file, and applicable law. Additionally, the court found, as
stated supra, “Defendant’s Motion is frivolous[.]” Accordingly, even without a specific finding or
conclusion of materiality, though it would be helpful to our appellate review, the lack thereof did not
frustrate review.
         Our appellate review, without remand, does not run afoul of our Court’s recent decision, State
v. Shaw, ___ N.C. App. ___, 816 S.E.2d 248 (N.C. Ct. App. May 15, 2018). In Shaw, the trial court



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                                        STATE V. TILGHMAN

                                          Opinion of the Court



B. Denial of Defendant’s Motion Prior to an Inventory of Evidence

        Defendant argues the trial court erred in “summarily denying his motion” for

a complete inventory of all physical and biological evidence relating to his case.

Defendant asks this Court to remand the matter to the trial court who would, in turn,

reconsider Defendant’s motion “in light of that inventory[.]” Defendant requested an

inventory of evidence pursuant to N.C. Gen. Stat. § 15A-268 (2017) and N.C. Gen.

Stat. § 15A-269, and we address each statute in turn.

        1. Inventory of Evidence Pursuant to N.C. Gen. Stat. § 15A-268

        N.C. Gen. Stat. § 15A-268 states:

                (a1) Notwithstanding any other provision of law and
                subject to subsection (b) of this section, a custodial agency
                shall preserve any physical evidence, regardless of the date
                of collection, that is reasonably likely to contain any
                biological evidence collected in the course of a criminal
                investigation or prosecution.

                …

                (a7) Upon written request by the defendant, the custodial
                agency shall prepare an inventory of biological evidence
                relevant to the defendant’s case that is in the custodial
                agency’s custody. If the evidence was destroyed through
                court order or other written directive, the custodial agency

reviewed defendant’s motion for postconviction DNA testing as a motion for appropriate relief. Id. at
___, 816 S.E.2d at ___, slip op. at *2-*3. Because defendant failed to meet the requirements for a
motion for appropriate relief, the court denied his motion. Id. at ___, 816 S.E.2d at ___, slip op. at *3.
Because the court denied on grounds for motions of appropriate relief and did not address section 15A-
269, our Court could not “determine whether defendant’s motion for post-conviction DNA testing was
properly denied.” Id. at ___, 816 S.E.2d at ___, slip op. at *6. Consequently, we vacated the order and
remanded for review “consistent with the provisions of N.C. Gen. Stat. § 15A-269.” Id. at ___, 816
S.E.2d at ___, slip op. at *5-*6.



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                                        STATE V. TILGHMAN

                                         Opinion of the Court



                shall provide the defendant with a copy of the court order
                or written directive.

N.C. Gen. Stat. § 15A-268(a1), (a7) (2017) (emphases added).

        Under the plain language of the statute, custodial agencies are obligated to

make an inventory of the biological evidence3 when a defendant makes a “written

request.”    N.C. Gen. Stat. § 15A-268(a7).             However, a request for location and

preservation of evidence is not a request for an inventory of evidence. Doisey, 240

N.C. App. at 447-48, 770 S.E.2d at 181-82. Where a defendant does “not make any

written request for an inventory . . . it follows that the trial court did not consider or

rule on such a request.” Id. at 448, 770 S.E.2d at 182. Accordingly, there is no ruling

for this Court to review. Id. at 448, 770 S.E.2d at 182.

        Here, Defendant’s motion was not for an inventory of evidence. He titled his

motion as a “Motion to Locate and Preserve Evidence[.]” (All capitalized in original).

He requested an order “to Locate and Preserve any and all physical and biological

evidence” and for DNA testing of the evidence. Thus, the trial court did not err in

denying Defendant’s motion for postconviction DNA testing prior to obtaining an

inventory of biological evidence which Defendant never requested, and we must

dismiss this argument. See id. at 447-48, 770 S.E.2d at 181-82.



        3N.C. Gen. Stat. § 15A-268 defines “biological evidence” as, inter alia, “any item that contains
blood, semen, hair, saliva, skin tissue, fingerprints, or other identifiable human biological
material . . . .” N.C. Gen. Stat. § 15A-268(a) (2017).



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                                        STATE V. TILGHMAN

                                          Opinion of the Court



        Assuming arguendo Defendant properly requested an inventory of biological

evidence, case law would bind us to dismiss this argument.4 Our Court recently

addressed this issue in State v. Randall. In Randall, defendant requested “that the

trial court require ‘custodial law enforcement agency/agencies to inventory the

biological evidence relating to his case.’ ” Id. at ___, 817 S.E.2d at ___, slip op. at *8

(emphasis and alterations omitted). Although defendant asserted he requested an

inventory from agencies, the record did not contain “evidence of these requests[.]” Id.

at ___, 817 S.E.2d at ___, slip op. at *8-*9. Our Court held “[w]ithout evidence that

[d]efendant made proper requests . . . and without any indication that the trial court

considered the issue below” there was no ruling for this Court to review. Id. at ___,

817 S.E.2d at ___, slip op. at *9 (citation omitted).                  Accordingly, we dismissed

defendant’s argument. Here, similar to defendant in Randall, the record is devoid of

evidence Defendant made proper requests, and we would still dismiss this issue.

        2. Inventory of Evidence Pursuant to N.C. Gen. Stat. § 15A-269

        N.C. Gen. Stat. § 15A-269 states:

                (f) Upon receipt of a motion for postconviction DNA testing,
                the custodial agency shall inventory the evidence
                pertaining to that case and provide the inventory list, as
                well as any documents, notes, logs, or reports relating to
                the items of physical evidence, to the prosecution, the
                petitioner, and the court.

        4 In his motion, Defendant notes N.C. Gen. Stat. § 15A-268(a7) requires law enforcement to
prepare an inventory of biological evidence. In his brief, Defendant asserts he was “independently
entitled to an inventory of all biological evidence under § 15A-268(a7) because he specifically cited this
provision in his motion requesting an inventory.”

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                                 STATE V. TILGHMAN

                                  Opinion of the Court




N.C. Gen. Stat. § 15A-269(f). Unlike N.C. Gen. Stat. § 15A-268, a defendant need not

make a request for an inventory of physical evidence. Doisey, 240 N.C. App. at 445,

770 S.E.2d at 180 (citation omitted). Instead, the custodial agency’s obligation to

inventory evidence is triggered “[u]pon receipt of a motion for postconviction DNA

testing[.]” N.C. Gen. Stat. § 15A-269(f). See Doisey, 240 N.C. App. at 445, 770 S.E.2d

at 180. The statute is silent as to whether a defendant or the trial court bears the

burden of serving the motion for inventory on the custodial agency.

       Here, the record lacks proof either Defendant or the trial court served the

custodial agency with the motion for inventory. Assuming arguendo it is the trial

court’s burden to serve the custodial agency with the motion, any error by the court

below is harmless error. As held supra, Defendant failed to meet his burden of

showing materiality. Accordingly, the trial did not err by denying his motion for DNA

testing prior to an inventory under N.C. Gen. Stat. § 15A-269(f).

                                   V. Conclusion

       For the foregoing reasons, we dismiss part of Defendant’s appeal and affirm

the trial court’s order.

       DISMISSED IN PART; AFFIRMED IN PART.

       Judges ELMORE and ZACHARY concur.




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