An unpublished opinion of the North Carolina Court of Appeals does not constitute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).