An unpublished opinion of the North Carolina Court of Appeals does not constitute 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. COA13-1165

NORTH CAROLINA COURT OF APPEALS

Filed: 6 May 2014

STATE OF NORTH CAROLINA

v. Johnston County

No. 02 CRS 52867

TARVARIS NOVACK MICKENS

Appeal by defendant from order entered 31 May 2013 by Judge 

Gale Adams in Johnston County Superior Court. Heard in the 

Court of Appeals 31 March 2014.

Roy Cooper, Attorney General, by Anne M. Middleton, 

Assistant Attorney General, for the State.

Peter Wood for defendant-appellant.

DAVIS, Judge.

Defendant Tarvaris Novack Mickens (“Defendant”) appeals 

from the denial of his motion for post-conviction DNA testing. 

After careful review, we affirm the trial court’s order denying 

his motion.

Factual Background

On 19 December 2003, Defendant was convicted by a jury of 

first-degree murder, and the trial court sentenced Defendant to 
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life imprisonment without parole. Defendant appealed, and this 

Court found no error. State v. Mickens, 171 N.C. App. 364, 615 

S.E.2d 96 (2005) (unpublished).

On 23 November 2010, Defendant filed a pro se motion for 

post-conviction DNA testing pursuant to N.C. Gen. Stat. § 15A269, requesting DNA testing of four items, including several

shell casings and “fired projectiles,” which were not previously 

subjected to testing. On 21 February 2013, Defendant filed an 

amended motion following the appointment of counsel. The trial 

court conducted a hearing on the motion on 3 May 2013. In an 

order entered 31 May 2013, the trial court denied Defendant’s 

motion based upon its findings that (1) “DNA testing of the 

requested items is not material to the defendant’s defense”; and 

(2) “there does not exist a reasonable probability that the 

verdict in the defendant’s case would have been more favorable 

to the defendant if the DNA testing being requested had been 

conducted on the evidence.” From this order, Defendant appealed

to this Court.

Analysis

Counsel appointed to represent Defendant 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 
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its own review of the record for possible prejudicial error. 

Counsel has also shown to the satisfaction of this Court that he 

has complied with the requirements of Anders v. California, 386 

U.S. 738, 18 L.Ed.2d 493 (1967), and State v. Kinch, 314 N.C. 

99, 331 S.E.2d 665 (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.

N.C. Gen. Stat. § 15A-269 provides in pertinent part:

(a) A defendant may make a motion before the 

trial court that entered the judgment of 

conviction against the defendant for 

performance of DNA testing . . . if the 

biological evidence meets all of the 

following conditions:

(1) Is material to the defendant’s defense.

(2) Is related to the investigation or 

prosecution that resulted in the 

judgment.

(3) Meets either of the following 

conditions:

a. It was not DNA tested previously.

b. It was tested previously, but the 

requested DNA test 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.

(b) The court shall grant the motion for DNA 
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testing and, if testing complies with FBI 

requirements, the run of any profiles 

obtained from the testing, upon its 

determination:

(1) The conditions set forth in 

subdivisions (1), (2), and (3) of 

subsection (a) of this section have 

been met;

(2) If the DNA testing being requested had 

been conducted on the evidence, there 

exists a reasonable probability that 

the verdict would have been more 

favorable to the defendant; and 

(3) The defendant has signed a sworn 

affidavit of innocence. 

N.C. Gen. Stat. § 15A-269(a)-(b) (2013).

Our Court has recently explained that biological evidence 

is “material” for purposes of N.C. Gen. Stat. § 15A-269(a)(1) if 

“there is a reasonable probability that its disclosure to the 

defense would result in a different outcome in the jury’s 

deliberation.” State v. Hewson, ___ N.C. App. ___, ___, 725 

S.E.2d 53, 56 (2012) (citation and quotation marks omitted). 

The burden is on the defendant to show that the biological 

evidence requested is material to his defense. See State v. 

Foster, ___ N.C. App. ___, ___, 729 S.E.2d 116, 120 (2012) (“The 

burden is on defendant to make the materiality showing required 

in N.C. Gen. Stat. § 15A-269(a)(1).”).
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Here, the trial court determined that “based upon [the] 

witness testimony at trial and the defendant’s admissions made 

under oath at trial,” (1) Defendant could not establish that the 

DNA testing of the requested items was material to his defense; 

and (2) there was no reasonable probability that the verdict in 

Defendant’s case would be more favorable if the DNA testing 

being requested had been conducted. The record evidence that

(1) Defendant testified at trial and admitted to firing the shot 

that killed the victim; (2) two witnesses testified to observing

the altercation between Defendant and the victim and then 

hearing the gunshots; and (3) a third witness testified 

regarding a telephone conversation where Defendant told the 

witness that he had just killed the victim, supports the trial 

court’s determination that the DNA testing requested would not 

be material to Defendant’s defense.

We agree with the trial court that in light of the evidence 

in this case — particularly Defendant’s admission that he “in 

fact fired the shot that killed [the victim]” — Defendant cannot 

show that testing the shell casings and projectiles for DNA 

evidence could reasonably alter the outcome of the proceeding. 

The trial court’s determination that Defendant had failed to 

show materiality supports its ultimate conclusion that 
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Defendant’s motion for post-conviction DNA testing must be 

denied. See State v. Gardner, ___ N.C. App. ___, ___, 742 

S.E.2d 352, 356 (holding that showing of materiality is “a 

condition precedent to a trial court’s statutory authority to 

grant a motion for postconviction DNA testing” (citation and 

quotation marks omitted)), disc. review denied, ___ N.C. ___, 

749 S.E.2d 860 (2013).

Defendant has not filed any written arguments on his own 

behalf with this Court and a reasonable time in which he could 

have done so has passed. In accordance with Anders, we have 

fully examined the record to determine whether any issues of 

arguable merit appear therein. We have examined the record for 

possible prejudicial error and found none.

Conclusion

For the reasons set out above, we affirm the trial court’s 

order denying Defendant’s motion for post-conviction DNA 

testing.

AFFIRMED.

Judges McGEE and ELMORE concur. 

Report per Rule 30(e).