State v Strange, 151 NC App 751 (01-332) 08/06/2002

Appeal by defendant from judgment entered 21 August 2000 by Judge Jesse B. Caldwell, III, in Gaston County Superior Court. Heard in the Court of Appeals 11 February 2002.

Attorney General Roy Cooper, by Assistant Attorney General Jane T. Hautin, for the State.

Marjorie S. Canaday for defendant appellant.

    McCULLOUGH, Judge.

    Defendant Jim Carroll Strange was tried before a jury at the 14 August 2000 Criminal Session of Gaston County Superior Court after being charged with four counts of statutory rape, two counts of incest, two counts of sexual activity by a custodian, two counts of taking indecent liberties with a child, and assault inflicting serious injury. Evidence for the State showed defendant married Karen Strange in 1992 and had three children with her. Mrs. Strange's daughter from a prior marriage (the victim, JW) also lived with the family. At all times relevant to the case, JW was between thirteen and fourteen years of age.
    The victim, who was fifteen at the time of trial, testified as follows: On 25 December 1998, JW, her mother, and defendant wereat home. Police officers had been summoned to the house three times that day after reports of domestic disturbances between Mr. and Mrs. Strange. JW testified the fights were “really getting on my nerves[,]” and she told her mother that defendant was the father of her child. Police were again summoned to the residence. After talking to JW, the police arrested defendant. JW testified she was certain of the father's identity because she only had intercourse with defendant. Two days later, on 27 December 1998, JW gave birth to a son.
    When questioned by police officers, JW stated defendant began raping her two to three times a week when she was eight years old. The encounters took place while her mother was at work or away from the home. JW said she did not tell anyone about the abuse, because defendant hit both her and her mother in the past and she “knew what he was capable of.” She became pregnant around 15 March 1998, but did not tell defendant until approximately 15 June 1998. JW testified defendant threatened to kill her and the baby if she told anyone what happened, and told her she would have to kill the baby. JW stated defendant punched her in the stomach and tried to strangle her, then raped her again that night. As in the past, JW did not tell anyone about defendant's threats and her pregnancy because she was afraid of defendant and believed he would carry out his threats.
    JW testified she first told her mother and grandmother she was pregnant on 5 December 1998, but did not reveal the father's identity. Mrs. Strange immediately took JW to the police stationto report a rape. Initially, JW said a teenage boy raped her in the woods behind her father's house. After a police officer doubted her story, JW said she had been babysitting her younger siblings when a man entered through an unlocked door and raped her on the living room couch. At trial, the victim admitted she made up the story to protect herself, her mother, and her baby from defendant.
    JW talked with social workers Candie Gunn and Norma Corpening and Detective Jimmy West shortly after her son was born. JW told the social workers defendant was her baby's father, then gave Detective West a detailed account of what had occurred in the home and named defendant as her child's father. The social workers and police officers to whom the victim gave statements testified at trial and corroborated JW's testimony. After speaking with both JW and defendant, Detective West arranged for DNA testing of the victim, the baby, and defendant.
    The State procured medical testimony from Ms. Belinda Wilson and Dr. Gary Stuhlmiller, both of whom worked at Laboratory Corporation of America (LabCorp). Ms. Wilson recounted the procedure she used to collect cells from inside the jaws of the victim, the baby, and defendant. She also explained how she sealed the samples to prevent tampering. Dr. Stuhlmiller testified as an expert in the application of genetic testing to paternity evaluation. He stated the combined paternity index indicated a 99.80% probability that defendant was the father of JW's child. Due to the incest charges pending against defendant, Dr.Stuhlmiller performed additional paternity tests. The additional testing raised the probability that defendant was the baby's father to 99.99%.
    At the close of the State's evidence, the trial court granted defendant's motion to dismiss seven of the eleven indictments. The remaining indictments against defendant were two counts of statutory rape, one count of taking indecent liberties with a child, and one count of simple assault.
    Defendant then presented evidence on his behalf. Social worker Norma Corpening testified JW was removed from her father's home in March 1999 because of allegations that JW's stepbrother sexually abused her. Defendant testified he first learned of the victim's pregnancy on 25 December 1998, and denied ever engaging in sexual activity with JW. He also testified that, on the morning he went for DNA testing, he shared an open-mouthed kiss with his wife; he believed the kiss contaminated the DNA test. Defendant's testimony regarding the kiss was corroborated by his wife. Defendant also called his niece as a character witness. Defendant then rested.
    After receiving instructions from the trial court, the jury deliberated and found defendant guilty of two counts of statutory rape, one count of taking indecent liberties with a child, and one count of simple assault. The trial court sentenced defendant to 420-513 months' imprisonment for the statutory rape conviction in 99 CRS 1198, and 360-441 months' imprisonment for the second statutory rape conviction in 99 CRS 1201. The trial courtconsolidated the indecent liberties conviction in 99 CRS 1199 with the simple assault conviction in 99 CRS 1203 for sentencing purposes, and sentenced defendant to 24-29 months' imprisonment for those two convictions. The trial court further determined that defendant's three sentences were to run consecutively. Defendant appealed.
    On appeal, defendant contends the trial court committed reversible error by (I) denying his motion to suppress evidence of a DNA test; (II) denying his motion for a continuance of the trial; (III) incorrectly calculating his prior convictions for sentencing; and (IV) denying his pretrial and trial motions to allow a recess for further DNA testing. After careful consideration of the proceedings below, we discern no error in defendant's trial, but remand the case to the trial court for resentencing.

    Defendant first contends the trial court erred by denying his motion to suppress evidence of a DNA test (or, alternatively, by failing to declare a mistrial), because the State did not comply with the statutory requirements for obtaining evidence pursuant to a nontestimonial identification order (NIO). Such orders, based upon less than probable cause, are frequently used by law enforcement agencies to obtain “fingerprints, palm prints, footprints, measurements, blood specimens, urine specimens, saliva samples, hair samples, or other reasonable physical examination, handwriting exemplars, voice samples, photographs, and lineups or similar identification procedures requiring the presence of asuspect.” N.C. Gen. Stat. § 15A-271 (2001). Law enforcement agencies are required, however, to comply with notice requirements and other safeguards set forth in N.C. Gen. Stat. §§ 15A-273 to -282 (2001). Defendant further contends the State's actions violated his constitutional rights. We do not agree.
    On 19 January 1999, after defendant had been arrested and released on bond, Detective West applied for a search warrant to seize DNA evidence from defendant. Detective West's affidavit made the following allegations in support of his application:
            I, the undersigned, am a Detective with the Gastonia Police Department. I have been a Police Officer with the Gastonia Police Department for seven years and have received training in criminal investigations. On December 26, 1998, I was assigned to investigate a statutory rape case. As a result of the investigation, warrants were obtained on Jim Carroll Strange for statutory rape, indecent liberties, incest, and sexual activity by a substitute parent. I request this search warrant to be issued because the items to be seized could be essential to the investigation.

In his motion to suppress, defendant contended that any search of his person or seizure of DNA evidence had to be conducted pursuant to nontestimonial identification procedures set forth in Article 14, Chapter 15A of the North Carolina General Statutes. Defendant argued the search warrant application was in fact a defective application for an NIO, and should not have been issued.
    After examining the facts of the case, we agree with defendant that Detective West's application for a search warrant did not comply with the statutory requirements for an NIO. See N.C. Gen.Stat. § 15A-278 (2001) (notice requirements). However, N.C. Gen. Stat. § 15A-272 (2001) indicates that “[n]othing in this Article shall preclude such additional investigative procedures as are otherwise permitted by law.” Search warrants are such a procedure and constitute a proper method for obtaining nontestimonial identification evidence from a defendant. State v. McLean, 47 N.C. App. 672, 674, 267 S.E.2d 695, 696 (1980). We therefore consider whether the DNA evidence was properly obtained pursuant to the general requirements for search warrants.
    The State is correct that defendant's motion to suppress did not mention U.S. Const. amend. IV, N.C. Const. art. I, § 20, or N.C. Gen. Stat. § 15A-244 (2001) (prohibiting searches and seizures pursuant to warrants issued without probable cause). We will nonetheless examine the search warrant because this issue was preserved by defense counsel who, when asked by the trial court if he challenged probable cause, stated, “I guess I would say that the short answer is that it's included, but I would contend to Your Honor that you don't need to reach that question because when you look at that particular probable cause statement, it's not clear that he -- that Officer West is alleging probable cause and is not alleging some lesser standard . . . .” We note, however, that defendant's attorney never argued that the facts in Detective West's affidavit were insufficient to establish probable cause.
    Defendant's fourth and fifth assignments of error did not challenge the trial court's findings of fact and did not mention N.C. Const. art. I, § 20. The State maintains such a failureprecludes defendant from asserting this error on appeal because he failed to properly preserve it under N.C.R. App. P. 10(b)(1) (2002) and N.C. Gen. Stat. § 15A-1446(a) and (b) (2001), and it is a “new theory” advocated for the first time on appeal. See State v. Washington, 134 N.C. App. 479, 484-85, 518 S.E.2d 14, 17 (1999); and State v. Zuniga, 320 N.C. 233, 241-43, 357 S.E.2d 898, 904-05, cert. denied, 484 U.S. 959, 98 L. Ed. 2d 384 (1987). While defendant's motion and his attorney's response at the suppression hearing may not be the most articulate attempt to preserve this issue, we conclude it is adequate in the context of this case.
    The trial court made several findings of fact and conclusions of law at the end of the suppression hearing. Specifically, the trial court found as a fact and concluded as a matter of law that Detective West's application was one for a search warrant, not an NIO. The trial court also found and concluded that the warrant application complied with all the requirements for search warrants under Article 11, Chapter 15A of the North Carolina General Statutes. The trial court further concluded defendant's state and federal constitutional rights were not violated by issuance of the search warrant. Defendant, however, maintains Detective West's affidavit was insufficient to support the issuance of the warrant.
    N.C. Gen. Stat. § 15A-244 states:
            Each application for a search warrant must be made in writing upon oath or affirmation. All applications must contain:

             . . . .

                    (3)    Allegations of fact supporting thestatement. The statements must be supported by one or more affidavits particularly setting forth the facts and circumstances establishing probable cause to believe that the items are in the places or in the possession of the individuals to be searched[.]

N.C. Gen. Stat. § 15A-245(a) (2001) states:
        Basis for issuance of a search warrant; duty of the issuing official.

            (a) Before acting on the application, the issuing official may examine on oath the applicant or any other person who may possess pertinent information, but information other than that contained in the affidavit may not be considered by the issuing official in determining whether probable cause exists for the issuance of the warrant unless the information is either recorded or contemporaneously summarized in the record or on the face of the warrant by the issuing official.

“A search warrant cannot be issued upon affidavits which are purely conclusory and which do not state underlying circumstances upon which the affiant's belief of probable cause is founded.” State v. Bright, 301 N.C. 243, 249, 271 S.E.2d 368, 372 (1980); see also State v. Hyleman, 324 N.C. 506, 509, 379 S.E.2d 830, 832 (1989).
    “In applying the 'totality of circumstances' test, 'great deference should be paid a magistrate's determination of probable cause and . . . after-the-fact scrutiny should not take the form of a de novo review.'” State v. Graham, 90 N.C. App. 564, 567, 369 S.E.2d 615, 618 (1988) (quoting State v. Arrington, 311 N.C. 633, 638, 319 S.E.2d 254, 258 (1984). “[R]eviewing courts are to pay deference to judicial determinations of probable cause[.]” Statev. Louchheim, 296 N.C. 314, 324, 250 S.E.2d 630, 636, appeal dismissed, 295 N.C. 470, 257 S.E.2d 435, cert. denied, 444 U.S. 836, 62 L. Ed. 2d 47 (1979). Furthermore, our Supreme Court has stated that the “totality of circumstances” test in Illinois v. Gates, 462 U.S. 213, 76 L. Ed. 2d 527, reh'g denied, 463 U.S. 1237, 77 L. Ed. 2d 1453 (1983), is the proper test to employ when considering questions under N.C. Const. art. I, § 20 regarding the sufficiency of probable cause to support the issuance of a search warrant.
    Defendant argues Detective West's affidavit was so “bare bones” and conclusory that it provided no basis for a determination of probable cause; thus, defendant believes the magistrate was not exercising his independent and neutral judgment in issuing the warrant. See Coolidge v. New Hampshire, 403 U.S. 443, 29 L. Ed. 2d 564, reh'g denied, 404 U.S. 874, 30 L. Ed. 2d 120 (1971).
     The State contends the application and affidavit by Detective West complied with N.C. Gen. Stat. §§ 15A-244 and -245(b). “In reviewing the denial of a motion to suppress, we are limited to determining whether the trial court's findings of fact are supported by competent evidence and whether the findings of fact in turn support legally correct conclusions of law.” State v. Smith, 118 N.C. App. 106, 111, 454 S.E.2d 680, 683, rev'd on other grounds, 342 N.C. 407, 464 S.E.2d 45 (1995), cert. denied, 517 U.S. 1189, 134 L. Ed. 2d 779 (1996).
    By the time Detective West prepared his affidavit, warrants had already been issued against defendant for statutory rape,taking indecent liberties with a child, incest, and sexual activity by a substitute parent. Thus, probable cause existed to arrest defendant for crimes against JW. Once probable cause was established that defendant committed the offenses, it was logical to conclude defendant's saliva for the DNA test would be found on his person and that the saliva would aid in the apprehension or conviction of the criminal. See Arrington, 311 N.C. at 641-43, 319 S.E.2d at 259-61 (discussing the common sense analysis needed for Fourth Amendment and N.C. Const. art. I, § 20 cases). This assignment of error is overruled.

    By his second assignment of error, defendant argues the trial court's failure to grant his motion for a continuance deprived him of his right to state and federal due process and rendered him unable to meaningfully confront the witnesses against him. The State, on the other hand, contends that defendant's motion was properly denied. After careful examination of the record below, we agree with the State.
    Defendant's case was called for trial on 14 August 2000. That afternoon, attorneys for both the State and defendant learned of new allegations that JW had been sexually assaulted by an individual the previous Saturday in a manner similar to the allegations already made against defendant. The State learned of the new information first and told defendant approximately one hour later. Defendant's counsel made an oral motion for a continuance to: (1) review the police report and interview witnesses to thealleged assault; and (2) allow defendant to attend the funeral of his grandmother, who passed away the same day JW was allegedly attacked.
    Immediately before the trial court ruled on defendant's motion, the prosecutor informed the trial court the victim had just passed him a note stating that her assailant was Derrick Bennett, a boy she knew from school. The trial court then denied the motion, but ordered the State to provide a copy of the allegations to defendant, allowed defense counsel to cross-examine the witness regarding the allegations, and stated that defense counsel would have until the next morning to investigate the matter. The trial court noted the viewing for defendant's grandmother was that evening and the funeral at 11:00 a.m. the following day. Since defendant was out on bond and the trial was not to commence until after the funeral, the trial court denied defendant's motion to continue on that ground as well.
    When the trial resumed on 17 August 2000, defendant's attorney told the trial court that the investigation of the latest allegations was put on hold due to defendant's case, and he was unable to get the information he needed to prepare for trial. The trial court denied defendant's request for a recess and did not allow a mistrial and a redocketing of defendant's case.
    A motion to continue is made pursuant to N.C. Gen. Stat. § 15A-952 (2001). “A motion for a continuance is ordinarily addressed to the sound discretion of the trial judge, and the ruling will not be disturbed absent a showing of abuse ofdiscretion.” State v. Beck, 346 N.C. 750, 756, 487 S.E.2d 751, 755 (1997). “However, if the motion is based on a right guaranteed by the Federal and State Constitutions, the question presented is one of law and not of discretion, and the ruling of the trial court is reviewable on appeal.” State v. Abernathy, 295 N.C. 147, 159, 244 S.E.2d 373, 381 (1978). If a defendant shows the denial of his motion amounted to a constitutional violation, he is entitled to a new trial unless the State can show the error was harmless beyond a reasonable doubt. State v. Gardner, 322 N.C. 591, 594, 369 S.E.2d 593, 596 (1988).
    In the present case, defendant argues the State cannot show the denial of his motion amounted to harmless error because all investigation of the new allegations was halted until after his trial. “The denial of a motion to continue, even when the motion raises a constitutional issue, is grounds for a new trial only upon a showing by the defendant that the denial was erroneous and also that his case was prejudiced as a result of the error.” State v. Branch, 306 N.C. 101, 104, 291 S.E.2d 653, 656 (1982). The State argues defendant can show neither a bona fide constitutional issue nor prejudicial error.
    “To establish a constitutional violation, a defendant must show that he did not have ample time to confer with counsel and to investigate, prepare and present his defense.” State v. Tunstall, 334 N.C. 320, 329, 432 S.E.2d 331, 337 (1993). Here, defendant orally moved for a continuance, but did not bolster his motion with any affidavits or other proof. Though defendant cited the need tointerview witnesses, he did not identify those people by name or show an inability to interview or call those individuals to testify at trial. Defendant also has not shown the presence of exculpatory evidence that he could have obtained if the motion to continue had been granted.
    It appears, therefore, that defendant's motion was based on mere speculation that more information about the alleged assault might produce potentially useful information. “A continuance is proper if there is a belief that material evidence will come to light and such belief is reasonably grounded on known facts, but a mere intangible hope that something helpful to the litigant may possibly turn up affords no sufficient basis for delaying a trial.” State v. Pollock, 56 N.C. App. 692, 693-94, 289 S.E.2d 588, 599, appeal dismissed, disc. review denied, 305 N.C. 590, 292 S.E.2d 573 (1982). See also State v. Pickard, 107 N.C. App. 94, 100, 418 S.E.2d 690, 693 (1992).
    We also note that, during the trial, defendant's attorney vigorously cross-examined JW about her allegations regarding defendant and her prior false reports of rape and assault to the police. Defendant's attorney declined to ask about the most recent allegation involving Derrick Bennett. The jury already heard evidence regarding JW's two false police reports. Even if JW falsified her latest allegation, the evidence would have been cumulative at best. We conclude the trial court properly denied defendant's motion to continue the case. Defendant's second assignment of error is overruled.

    By his third assignment of error, defendant contends the trial court erroneously calculated his prior record level for sentencing purposes. Specifically, defendant argues: (1) that the Division of Criminal Information (DCI) report was incompetent and inadmissible; (2) that two convictions, assault on a female and littering of less than fifteen pounds, were not included on his DCI report and should not have been used to increase his prior record level; and (3) that his trespass conviction was improperly treated as a Class 1 instead of a Class 2 misdemeanor. We will review each argument in turn.
    Initially, we note DCI reports are a proper means of proving a prior conviction. See N.C. Gen. Stat. § 15A-1340.14(f) (2001). The same provisions apply to misdemeanor sentencing, pursuant to N.C. Gen. Stat. § 15A-1340.21(c) (2001). DCI reports have been properly used under N.C. Gen. Stat. § 15A-1340.14(f)(3) and (4). State v. Rich, 130 N.C. App. 113, 116, 502 S.E.2d 49, 51, disc. review denied, 349 N.C. 237, 516 S.E.2d 605 (1998).
    Defendant argues the DCI report was unreliable because it was missing information and was therefore inaccurate as to defendant's past offenses. He also argues it should not have been used because it was outdated; the top of the page noted that “RECORD MUST NOT BE USED AFTER 04/27/1999." However, defendant has failed to show how he was prejudiced by the use of the older DCI report, and N.C. Gen. Stat. § 15A-1340.14(f)(3) does not prohibit the use of old DCI reports in sentencing proceedings. Defendant's contention is meritless.     Defendant next argues that two convictions, assault on a female and littering of less than fifteen pounds, were improperly used to increase his prior record level because they did not appear on the DCI printout. Our examination of the record indicates only those convictions appearing on both defendant's worksheet and the DCI printout were used to calculate his prior record level for sentencing purposes. After examining the trial court's calculation of criminal history points assignable to defendant, we hold four points were properly attributed to him, giving him a prior record level of II. See N.C. Gen. Stat. § 15A-1340.14(c)(2). While we discern no error in the calculation of defendant's sentence in this regard, we do find merit in defendant's last contention.
    In his third argument, defendant points out that the DCI report designates his 8 October 1986 conviction as misdemeanor trespassing, while the worksheet designates the same offense as forcible trespass. The distinction is important because of the differences in point calculation. Forcible trespass is a common law (Class 1) misdemeanor rather than a statutory crime, carrying one point. State v. Bates, 70 N.C. App. 477, 479-80, 319 S.E.2d 683, 685 (1984), aff'd, 313 N.C. 580, 330 S.E.2d 200 (1985); N.C. Gen. Stat. § 14-3(a) (2001); N.C. Gen. Stat. § 15A-1340.14(b)(5). However, misdemeanor trespass (i.e., first-degree trespass under N.C. Gen. Stat. § 14-159.12 (2001)) is designated a Class 2 misdemeanor and carries no points. See N.C. Gen. Stat. § 15A- 1340.12(b)(5) (2001).
    The trial court designated defendant's 8 October 1986conviction as forcible trespass and added an additional point to defendant's criminal history. This gave defendant a total of five criminal history points and elevated him to a prior record level III, pursuant to N.C. Gen. Stat. § 15A-1340.14(c)(3). Keeping in mind that “[t]he State bears the burden of proving, by a preponderance of the evidence, that a prior conviction exists and that the offender before the court is the same person as the offender named in the prior conviction[,]” N.C. Gen. Stat. § 15A- 1340.14(f), we conclude the State has not proven the 8 October 1986 conviction was for forcible trespass. It was erroneous for the trial court to elevate defendant to a record level III in the absence of the correct level of proof by the State. We therefore remand the case for resentencing at prior record level II instead of level III, unless the State can prove by a preponderance of the evidence that the conviction was indeed for forcible trespass.

    By his final assignment of error, defendant contends he should have been granted a recess to conduct further DNA testing, and the trial court's denial of his motions violated his right to due process and his right to confront witnesses against him. We disagree.
    Defendant's pretrial motion, dated 7 April 2000, indicated that he was “willing and expect[ed] to pay all costs related to administering such a [DNA] test.” The State opposed the motion and informed the trial court that defendant had been unable to raise the money on his own and was seeking money to pay for the test. The trial court subsequently denied the pretrial motion. Defendant did not renew his motion until the third day of trial, and did so during an inquiry as to whether his bond should be revoked, based on a risk of flight and his previous threats against JW and her baby. Defendant conducted a voir dire examination of his brother to demonstrate his brother's willingness to pay for the DNA testing. However, defendant also asked the trial court to award him the funds for the additional DNA testing. The trial court denied defendant's trial motion in all respects.
    A defendant is entitled to money to pay for testing if he makes a preliminary showing that test results would be a significant factor at trial. See Ake v. Oklahoma, 470 U.S. 68, 84 L. Ed. 2d 53 (1985). Defendant maintains he made such a showing by presenting evidence that he and his wife shared an open-mouthed kiss before he left for DNA testing, and her saliva may have contaminated the test results. Defendant further argues additional DNA testing could greatly benefit his case while creating a minimal burden upon JW and her child. He also maintains the State cannot show the trial court's denial amounted to harmless error.
    In his pretrial motion, defendant indicated to the trial court that he expected to pay the costs associated with the additional DNA testing. By doing so, defendant cannot now assign error to the trial court's decision not to give him funds to pay for the DNA testing because
        “[t]he theory upon which a case is tried in the lower court must prevail in considering the appeal and interpreting the record anddetermining the validity of the exceptions.” State v. Honeycutt, 237 N.C. 595, 599, 75 S.E. 2d 525, 527 (1953). A defendant is not permitted to defend at trial upon one theory “and, upon an adverse verdict, call upon the appellate court to grant relief on the ground that the presiding judge should have intervened and guided his defense to another theory . . . .” State v. Blackwell, 276 N.C. 714, 720, 174 S.E. 2d 534, 538, cert. denied, 400 U.S. 946 (1970).

State v. Meadows, 306 N.C. 683, 691-92, 295 S.E.2d 394, 399 (1982), overruled on other grounds sub nom. State v. Grier, 307 N.C. 628, 300 S.E.2d 351 (1983).
    The State maintains defendant's trial motion was not for a recess, but rather an oral motion for a continuance, and that the trial court properly denied the motion because defendant could not justify a delay in the trial. As discussed previously, the trial court has discretion when confronted with a motion for a continuance, and its decision will be overturned only upon a showing of an abuse of discretion. See State v. Trull, 349 N.C. 428, 437, 509 S.E.2d 178, 185 (1998), cert. denied, 528 U.S. 835, 145 L. Ed. 2d 80 (1999).
    The trial court noted both defendant and his wife understood the significance of the DNA evidence from January 1999 onward, far before the trial in August 2000. The trial court based its denial, in part, on the inexcusable delay defendant exhibited in failing to bring up the issue and to try to procure a new DNA test:
            THE COURT: All right. Well, the Court DENIES the motion to recess these proceedings while a DNA test is conducted. The Court finds that there appears to be at least one resource from which the defendant could haveobtained this money previously. There appears before the Court no reasonable effort for showing as to why the defendant could not have contacted his brother sooner with regard to getting the money to pay for the test. The Court further finds that to continue this case for several weeks or a month would be duly [sic] disruptive to the jury, and the Court sees no reason why this motion could not have been made even prior to last week when evidently it was brought before the Court; that counsel has been in this case . . . [s]ince May of 1999. The Court further finds that the results of this test have been -- of the previous DNA test have been known for over a year and a half. Counsel has been involved in this case for at least fifteen months prior to this case being tried and that there appears to be no compelling reason why the motion for a new DNA test could not have been made substantially prior to trial and certainly before now as to this Court and indeed prior to being heard last week. I believe it could have been made earlier and should have been made earlier. All right. The Court DENIES that motion. The Court notes the defendant's exception.

As defendant failed to assign error to the trial court's findings of fact, they are binding on appeal. See State v. Allen, 90 N.C. App. 15, 17, 367 S.E.2d 684, 685 (1988).
    Finally, defendant cannot show prejudicial error from the denial of his motion. Defendant presented no expert testimony to show the first DNA test was unreliable, and he did not cross- examine Dr. Stuhlmiller about whether his wife's saliva could have contaminated the DNA sample obtained from him. We conclude the trial court did not err in denying defendant's pretrial and trial motions for a recess to conduct additional DNA testing. The trial court also did not err in denying defendant's request for funds to pay for the second DNA test. Accordingly, defendant's finalassignment of error is overruled.
    After careful examination of the proceedings below and the arguments of the parties, we conclude there is no error in defendant's convictions. However, the case is remanded to the trial court for resentencing.
    No error; remanded for resentencing.
    Chief Judge EAGLES concurs.
    Judge BIGGS concurs in the result.
    Report per Rule 30(e).

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