State v. Fowler
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA12-281 NORTH CAROLINA COURT OF APPEALS Filed: 4 December 2012 STATE OF NORTH CAROLINA v. Caldwell County No. 93 CRS 3641 HARRY JAMES FOWLER, Defendant. Appeal by defendant from order entered 31 August 2011 by Judge W. Robert Bell in Caldwell County Superior Court. Heard in the Court of Appeals 26 November 2012. Attorney General Roy Cooper, by Assistant Attorney General Sherri G. Horner, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Constance E. Widenhouse, for defendant-appellant. HUNTER, Robert C., Judge. Defendant Harry James Fowler appeals from an order denying his motion for post-conviction DNA testing pursuant to N.C. Gen. Stat. § 15A-269 (2011). A jury found attempted first liberties with defendant degree a We affirm. minor. sex guilty of offense, Judge first and Beverly T. degree rape, taking indecent Beal sentenced -2defendant to consecutive terms of imprisonment of life, twenty years, and ten years. Defendant appealed his convictions and, in an unpublished opinion, this Court found no error. State v. Fowler, 123 N.C. App. 786, 474 S.E.2d 418, disc. review denied, 344 N.C. 736, 478 S.E.2d 10 (1996). On 3 November 2008, defendant filed a Motion to Locate and Preserve Evidence in which he requested that the court order the location and preservation of Pants Blue Jeans size 7 and Panties Purple? size 7[.] Defendant also filed a pro se Motion for DNA Testing Pursuant to N.C. Gen. Stat. §§ 15A-269 requesting that DNA testing be performed on Pants (size 7) and Panties (size 7)[.] Judge Beal entered an Order Initiating DNA Testing Procedure on 26 November 2008. Beal directed Investigation the district (SBI), the attorney, Lenoir In the order, Judge the Police State Bureau Department, and of the Caldwell County Sheriff s Department to report to the court any DNA testing reports, or tangible evidence of any type in possession ; ordered the Clerk of Court of Caldwell County to preserve any evidence in its custody in regard to the case; and directed each agency to report the possession or lack of possession of the two items referred to in defendant s motions. Judge Beal subsequently appointed counsel for defendant and -3ordered defendant to prepare an adequate affidavit of innocence[.] Defendant, through counsel, Innocence on 13 February 2009. appointed counsel Contentions[.] filed a filed In a new Affidavit of August 2011, defendant s document entitled Defendant s In the document, defendant requested: (1) the court take judicial notice of the DNA testing problems the State Bureau of Investigation has had over recent months; (2) an independent agency determine the location of the pants; (3) any available physical evidence be retested by an agency other than the SBI; (4) his case be referred to the North Carolina Innocence Inquiry Commission; (5) the State turn over notes and documents associated with interviews of the victim and her mother; and (6) a rehearing on all motions denied by Judge Beal. On 29 August 2011, Judge W. Robert Bell held an evidentiary hearing on defendant s motion for DNA testing, motion to locate and preserve evidence, and Defendant s Contentions[.] By order filed 31 August 2011, the court denied defendant s motion for DNA testing after conclusions of law. making detailed findings of fact and The trial court ultimately concluded that all agencies complied with the November 2008 order and that the pants (size 7) and panties (size 7) do not exist and -4therefore are not available for DNA testing. The trial court allowed defendant s request to take judicial notice of problems the SBI has had with remaining five requests. DNA testing and denied defendant s Defendant appeals. Counsel appointed to represent defendant asserts that she has been unable to identify any issue with sufficient merit to support a meaningful argument for relief on appeal and asks that this Court conduct its own review of the record for possible prejudicial error. Counsel has also shown to the satisfaction of this Court that she has complied with the requirements of Anders v. California, 386 U.S. 738, 744-45, 18 L. Ed. 2d 493, 498 (1967), and State v. Kinch, 314 N.C. 99, 102-03, 331 S.E.2d 665, 666-67 (1985), by advising defendant of his right to file written arguments with this Court and providing him with the documents necessary for him to do so. Defendant has purported to file a pro se brief. filed two separate documents with this Court. defendant filed Objection to a document Counsel s entitled Propose [sic] On 29 May 2012, Petitioners/Appellants Aband[on]ment Stipulated on Appeal and In the Alt-Pro-se brief handwritten counsel is document, biased defendant against him argues as Defendant that evidenced his by of Errors In this appellate counsel not -5briefing the six Proposed Issues on Appeal set out on page 177 in the settled record on appeal. In defendant s 16 July 2012 document entitled Petitioner s objections to the Allegations of the State[ ]s purported brief filed 21 June 2012[,] defendant objects to the State s contention that the record is complete and to the State s assumption that his appellate counsel will forward him a copy of the State s brief. These arguments are without merit. In accordance with Anders, we have fully examined the record to determine whether any issues of arguable merit appear therefrom or whether the appeal is wholly conclude the appeal is wholly frivolous. frivolous. We Furthermore, we have examined the record for possible prejudicial error and found none. Affirmed. Judges CALABRIA and McCULLOUGH concur. Report per Rule 30(e).
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