concurring in result.
I concur in the majority opinion except as to Part V in which I concur in the result.
As to Part V, I believe the majority’s truncated view of the facts and its expressions of opinion regarding the autopsy procedures are unnecessarily critical of the autopsy personnel and their procedures.
The argument of Fain focuses on one small aspect of the autopsy procedures, i.e., the insertion of Q-tip like swabs into the various body cavities. The purpose of the procedure is to impregnate the cotton swab with liquid within the body cavity, and to allow microscopic examination for the existence of sperm. If sperm is so found, further analysis can be made. The cotton swabs were not preserved, and from that fact the defense constructs the following argument. If sperm had been deposited within any of the body cavities, and if after the body’s three-day immersion in water any such sperm remained, and if the swabbing had picked up any such remaining sperm, and if microscopic examination had revealed that the sperm depositor was a “secretor,” and if therefrom tests thereof could determine the blood type of the sperm depositor, and if such a determined blood type differed from that of the defendant, conceivably such evidence would be exculpatory of Fain. Such an attenuated argument fails to consider the uncontested facts surrounding the autopsy procedures *101which are not set forth in the majority opinion.
The undisputed record indicates that the pathologist, in accordance with standard medical procedures, used cotton Q-tip type swabs to collect samples of whatever fluid might be found in the vaginal, anal, nasal and oral cavities of the victim. Each swab was immediately thereafter wiped upon a glass slide for later microscopic examination. Tests were made upon the slides to determine if there was any sperm to be found in the victim’s body cavities. Those slides gave no evidence of the presence of sperm. Those slides were preserved. Thereafter, “washings” were made of the body cavities, which washings were preserved by refrigeration, and while available to the defense at the time of trial, were never examined.
This portion of the defendant’s argument on appeal is built upon the foundation that if the swabs themselves had been preserved, that a year and a half later they would have remained in a condition viable for examination for sperm; that such examination might have revealed results at variance to the slides containing the materials deposited thereon from the swabs; that if the swabs remained viable, and if they revealed the presence of semen, that such hypothetical semen might have revealed if the depositor thereof was a secretor, and if the depositor was a secretor a blood type could possibly be identified as different from that of Fain.
I suggest that such argument is nothing but hopeful speculation without any reasonable foundation therefor. An applicant for post-conviction relief has the burden of demonstrating by a preponderance of the evidence the allegations on which his petition is based. Clark v. State, 92 Idaho 827, 452 P.2d 54 (1969). Where as here there is competent and substantial evidence to support a decision made after an evidentiary hearing on an application for post-conviction relief, that decision will not be disturbed on appeal. Heck v. State, 103 Idaho 648, 651 P.2d 582 (Ct.App.1982); Lipps v. State, 94 Idaho 185, 484 P.2d 734 (1971); State v. Hinkley, 93 Idaho 872, 477 P.2d 495 (1970). Here, Fain was required to demonstrate that the lost swabs contained evidence that would be material to his guilt or innocence. As stated in California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984), the “evidence must possess an exculpatory value that was apparent before the evidence was destroyed ...”
The majority strongly suggests that the swabs should have been preserved. There is no contention that standard autopsy procedures required such preservation of the swabs after smears had been made upon the glass microscopic slides. It is suggested that the existence of a “sex crime kit” required the preservation of the swabs. There is no showing in this record that such “sex crime kit,” which was in the custody of a police officer present at the autopsy, constituted any legal authority which required the pathologist to vary his standard autopsy procedures. Likewise, there is no showing that the law enforcement officer was possessed of any authority to direct or supervise the conduct of the autopsy or to require that the pathologist vary his usual autopsy procedures.
Lastly, I would point out that the record discloses that prior to trial the defense refused to permit any testing of the sperm of the defendant. It was only at post-conviction proceedings when the absence of the swabs became apparent, that the defendant then indicated a willingness to have tests made of his sperm.
I would affirm the findings and conclusions of the trial court pertaining to the failure to preserve the swabs.