State v. Smith ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-965
NORTH CAROLINA COURT OF APPEALS
Filed: 6 May 2014
STATE OF NORTH CAROLINA
v. Buncombe County
No. 09CRS053119
JENNIFER LYNN SMITH, 09CRS000301
Defendant.
Appeal by defendant from Judgment entered on or about 8
July 2009 by Judge James U. Downs in Superior Court, Buncombe
County. Heard in the Court of Appeals 20 February 2014.
Attorney General Roy A. Cooper, III, by Special Deputy
Attorney General Iain M. Stauffer, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Jillian C. Katz, for defendant-appellant.
STROUD, Judge.
Jennifer Smith (“defendant”) appeals from the judgment
entered after a Buncombe County jury found her guilty of
conspiracy to commit robbery with a dangerous weapon and robbery
with a dangerous weapon. We hold that defendant has failed to
show plain error at her trial or any error in her sentencing.
I. Background
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Defendant was indicted in Buncombe County for conspiracy to
commit robbery with a dangerous weapon and robbery with a
dangerous weapon. Defendant pled not guilty and was tried by
jury in July 2009.
At trial, the State presented video from a Citi Stop
convenience store in Buncombe County. The video showed that
around 10:51 p.m. on 7 March 2009, defendant and her husband
pulled up to the Citi Stop. She was driving an older blue pickup
truck and Mr. Smith was riding in the passenger seat. Defendant
exited the truck and went into the store. She walked back to the
bathroom and stayed there for approximately 32 seconds. When
she left the bathroom, defendant walked around the counter,
looked at the clerk, Kelly Thompson, walked toward the front
door, hesitated, then walked back toward the counter, hesitated
again, and left the store. She got back into the driver’s seat
of the truck and pulled out of view of the store’s cameras.
A few minutes later, a man wearing shorts, a white t-shirt,
a hooded sweatshirt, and a burgundy ski mask entered the store.
At the time, Ms. Thompson was mopping the floor and did not
immediately notice the masked man. The man approached Ms.
Thompson, said something along the lines of “This is a holdup,”
and instructed her to give him the money. The masked man was
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carrying a dark colored revolver. Ms. Thompson discreetly hit
the panic button and handed over the money from her register,
totaling approximately $96. He placed a black bag on the
counter and told her to put the money in the bag. Ms. Thompson
tossed the bag back at the armed man and told him to do it
himself. The man then demanded Ms. Thompson give him the money
from the other register. When Ms. Thompson informed him that she
did not have access to that register he shook the gun at her and
left the store. Ms. Thompson followed the man out of the store
and saw him get into the passenger side of an older blue pickup
truck. She saw him pull off the mask when he got into the truck.
Once the truck pulled away, Ms. Thompson called 911 and gave the
police a description of the man and the truck.
Sergeant Mike Yelton of the Asheville Police Department
responded to the Citi Stop. Ms. Thompson described the man, what
he was wearing, and the truck he left in. Sergeant Yelton drove
to a nearby Hot Spot convenience store to make sure that there
was not a follow-up robbery. He noticed an older blue truck
matching Ms. Thompson’s description of the getaway vehicle in
front of the Hot Spot store. As he pulled up to the truck, he
saw a female walking toward the store and a young white male
sitting in the passenger seat. He called for backup, then
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approached the truck and ordered the man out of the vehicle. He
noticed that the man was wearing clothing that matched Ms.
Thompson’s description of the robber. Sergeant Yelton saw that
the man had been sitting on a dark revolver in the passenger
seat. The gun also matched Ms. Thompson’s description, so he
placed the man in handcuffs.
As he was handcuffing the man, later identified as
defendant’s husband, defendant came out of the Hot Spot store
and approached the officers. She asked them why her husband was
being arrested. They instructed her to stay away and searched
the truck. In the truck, the officers found a red ski mask
behind the driver’s seat and a money bag that matched Ms.
Thompson’s description of the bag used by the robber. The
officers also found approximately $84 in cash in Mr. Smith’s
pocket. The officers arrested both Mr. Smith and defendant.
Detective Buchanan with the Asheville Police Department
interviewed defendant. Defendant gave a detailed description of
her movements that day but did not mention going to the Citi
Stop until the detective asked. Defendant claimed that they just
went to the store so that she could use the bathroom. She also
explained that her husband was on probation and that he owed
approximately $20,000.
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The jury found defendant guilty of conspiracy to commit
robbery with a dangerous weapon and robbery with a dangerous
weapon. After the jury returned verdicts on both charges, the
trial court proceeded with a hearing on the aggravating factor
alleged by the State. The State alleged that defendant had
committed these offenses while on pretrial release related to a
pending misdemeanor charge.
The State called a deputy clerk of court and introduced a
certified copy of a computer printout showing that a Jennifer
Lynn Smith had a pending charge of misdemeanor shoplifting with
an offense date of 12 January 2009. The State rested, but, in
the absence of the jury, the trial court asked whether the State
was going to offer any biographical data tying the Jennifer
Smith in the printout to defendant. As the prosecutor was
considering how to proceed, the trial court said,
You’ve got a courtroom clerk here that
supervises and has custody of the files in
this case. . . . You can ask her to compare
the biographical data, as I understand it,
in the files here with the data on that
sheet when she was arrested back in January.
And if you can tie up those loose ends, then
it’s presumptive and prima facie enough to
survive any motion to dismiss. Well, let’s
get on with it now. If you’re going to
allege these things, let’s have them ready
to go.
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Defendant objected “to the district attorney being instructed on
how to proceed.” The trial court overruled the objection. The
State then called another deputy clerk of court to compare the
date of birth and address listed on the computer printout and
the information on the order for arrest connected to the present
charges. She testified that they matched.
The jury found as an aggravating factor that defendant
committed the offenses while on pretrial release on another
charge. After the jury found the aggravating factor, defendant
presented evidence in mitigation. Defendant testified that she
suffered from bipolar disorder and that she had problems with
substance abuse. She testified that on the day of the robbery
she had been taking pills and drinking three pints of vodka with
her husband. She further testified that she had helped take care
of her children and that her parents and her church provided her
with support. Defendant’s adoptive mother (her biological
grandmother) testified on her behalf as well. She testified that
defendant was a person of good character who was well-regarded
by her church. She further testified that defendant’s husband
was a bad influence on her.
The defense requested that the trial court find six
mitigating factors: that defendant played a minor role in the
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crimes; that she had a mental or physical condition that
lessened her culpability; that she was a person of good
character who has a good reputation in the community; that she
has a support system in the community; that she supported her
family; and that she has a positive employment history. When the
trial court asked what evidence had been presented regarding
defendant’s employment history, defendant’s trial counsel asked
to recall defendant, which the trial court allowed. Defendant
testified that she had worked as a paralegal from August 2008 to
February 2009. She stated that she stopped working as a
paralegal due to her substance abuse.
The trial court found the sole aggravating factor alleged
and found none of the requested mitigating factors. The trial
court consolidated both charges for judgment and sentenced
defendant in the aggravated range of 77-102 months imprisonment.
Defendant gave notice of appeal in open court. However, due to
an apparent error by the Buncombe County Clerk of Court,
appellate entries were not made until 15 February 2013.
II. Alleged Errors at Trial
Defendant argues that the trial court plainly erred by
allowing Ms. Thompson to testify regarding the impact the
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robbery had on her and by giving an improper instruction in
response to a jury question. We disagree.
A. Standard of Review
Neither of the trial errors raised on appeal were preserved
below. Therefore, we review defendant’s arguments under the
plain error standard.
For error to constitute plain error, a
defendant must demonstrate that a
fundamental error occurred at trial. To show
that an error was fundamental, a defendant
must establish prejudice—that, after
examination of the entire record, the error
had a probable impact on the jury’s finding
that the defendant was guilty. Moreover,
because plain error is to be applied
cautiously and only in the exceptional case,
the error will often be one that seriously
affects the fairness, integrity or public
reputation of judicial proceedings.
State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012)
(citations, quotation marks, and brackets omitted). The test for
plain error “is unlikely to be satisfied . . . when evidence of
the defendant’s guilt is overwhelming.” Id. at 516, 723 S.E.2d
at 333; State v. Walker, 316 N.C. 33, 40, 340 S.E.2d 80, 84
(1986) (holding that “the overwhelming evidence against the
defendant prevented the error complained of from rising to the
level of plain error”).
B. Victim Impact Testimony
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Defendant first argues that the State improperly asked Ms.
Thompson about the effect that the robbery had on her. Even
assuming it was error for the trial court to admit this
testimony, defendant cannot show that the evidence had any
impact on the jury’s verdict.
Toward the end of Ms. Thompson’s direct examination, the
prosecutor asked her to “tell the jury a little bit about what
the impact of this has been on your life.” She testified—
without objection—that
This has been very stressful for me. I am
currently unemployed and fighting for
unemployment. This was the second time this
happened to me in a two-month period, that I
had a gun put in my face. I’m a mother of a
two-year-old. I have three children, 22, 20,
and two. I’m terrified now to work anywhere
by myself, especially at night, so finding
another job is nearly impossible for me
because these are the hours that I can work.
I have nightmares. I re-live this thing
every day. I’m scared to go into convenience
stores at night. I’m scared to go anywhere
by myself.
The prosecutor did not follow up with any additional
questions about the impact that the robbery had on her, nor did
the prosecutor refer to this evidence at any other point at the
trial or clearly attempt to inflame the jury’s passions with
this evidence. Moreover, given the overwhelming evidence
against defendant, we are not convinced that the exclusion of
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this evidence would have changed the jury’s verdict. Defendant
was found to be driving her husband in a truck that Ms. Thompson
identified as the getaway vehicle. Defendant was seen on the
Citi Stop’s surveillance tape driving the vehicle and even
entering the store minutes before her husband entered and robbed
Ms. Thompson. The ski mask, gun, and money bag used in
connection with the robbery were all found in the truck that
defendant was driving.
Given this evidence, there is no probability that the
exclusion of a single question and answer on the impact of an
armed robbery on the victim would have changed the jury’s
verdict. See Walker, 316 N.C. at 40, 340 S.E.2d at 84.
Therefore, we hold that defendant has failed to show that the
admission of the testimony constitutes plain error. See
Lawrence, 365 N.C. at 518, 723 S.E.2d at 334.
C. Trial Court’s Response to Jury Question
Defendant next argues that the trial court plainly erred in
responding to one of the jury’s questions during deliberations.
Again, we disagree.
To show that a jury instruction was plainly erroneous, a
defendant must first show that it was error. See State v.
Cummings, 361 N.C. 438, 470, 648 S.E.2d 788, 807 (2007)
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(“[B]efore engaging in plain error analysis it is necessary to
determine whether the instruction complained of constitutes
error.”), cert. denied, 552 U.S. 1319, 170 L.Ed. 2d 760 (2008).
Here, defendant contends that “[t]he trial court erred by giving
an imprecise, erroneous supplemental jury instruction related to
the agreement element of the conspiracy charge . . .
Specifically, defendant contends that the following exchange
between a juror and the trial court constitutes error:
[JUROR]: If the alleged co-conspirator, this
whole thing was carried out with duress on
the conspirator, not the person that
actually committed the crime, if it was
under duress or threat, does that have any
bearing on the three elements that have to
be met?
THE COURT: Threat of whom?
[JUROR]: Threat of the person that committed
the robbery. The person that committed the
robbery --
THE COURT: What are you asking?
[JUROR]: -- threatens the person that’s
being accused of being a conspirator.
THE COURT: You mean some duress or threat on
the defendant –
[JUROR]: Yes.
THE COURT: -- by the other person?
[JUROR]: Yes. Does that have any bearing?
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THE COURT: Members of the jury, you have the
freedom to decide whether or not the State
has met its burden on the elements of what
it must prove. And the acting in concert is
a volitional -- a voluntary act. In other
words, it doesn’t have anything to do with
being under duress. The State must prove
beyond a reasonable doubt, for that acting
in concert to apply, that two or more
persons join in a common purpose. It doesn’t
say one forcing another. Two or more join in
a common purpose to commit an offense like
robbery with a dangerous weapon. Then,
whether both of them are present or one of
them is actually present
and the other is constructively present,
they’re both guilty, if all of the elements
of robbery with a dangerous weapon are met.
Okay?
Defendant argues that “[a]lthough the jurors asked about
‘duress’ or the existence of a ‘threat,’ they were actually
inquiring about what the law required if they believed Ms. Smith
did not actually agree to commit the robbery in question . . .
.” We see no basis on which to read any more into the jury’s
question than the plain language of the question itself. The
jurors specifically asked about duress and the trial court
answered their question on duress specifically.
The trial court correctly stated that duress had nothing to
do with the present case. Although the jury may have been
asking about duress in the colloquial sense, duress as a legal
defense has a particular definition. “Evidence precluding the
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inference of an agreement [in a conspiracy prosecution] would
have to show that the duress to which [a conspirator] was
subject was enough to overbear his will and make his
participation in the conspiracy involuntary.” United States v.
Freeman, 208 F.3d 332, 342 (1st Cir. 2000) (citation, quotation
marks, and brackets omitted). “In order to successfully invoke
the duress defense, a defendant would have to show that his
actions were caused by a reasonable fear that he would suffer
immediate death or serious bodily injury if he did not so act.”
State v. Cheek, 351 N.C. 48, 61-62, 520 S.E.2d 545, 553 (1999)
(citation and quotation marks omitted), cert. denied, 530 U.S.
1245, 147 L.Ed. 2d 965 (2000). “There must be evidence
supporting each element of duress for the trial court to
instruct the jury on that defense.” State v. Brown, 182 N.C.
App. 115, 118, 646 S.E.2d 775, 778, disc. rev. denied, 361 N.C.
431, 648 S.E.2d 848, cert. denied, 552 U.S. 1010, 169 L.Ed. 2d
373 (2007).
There was absolutely no evidence here that defendant was
acting under duress during the commission of these crimes.
Defendant never even raised the possibility of duress as a
defense and did not request an instruction on duress. There was
no evidence presented that defendant’s husband ever threatened
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her with death or great bodily harm, nor that any agreement to
commit the robbery was involuntary. Therefore, the trial court
did not err, let alone commit plain error, by instructing the
jury that the issue of duress was irrelevant to their
deliberations.
III. Sentencing
Defendant next argues that the trial court erred in three
ways during her sentencing. First, she contends that the trial
court abused its discretion and departed from its impartial role
in allowing the State to present additional sentencing evidence
after it had rested. Second, she asserts that the trial court
erred in failing to find several mitigating factors which were,
in her opinion, supported by “uncontradicted and manifestly
credible evidence.” Finally, she argues that the trial court
abused its discretion by sentencing her “to an aggravated
sentence based on improper considerations as evidenced by its
comments insinuating that [defendant] is a bad mother, a liar,
and a ‘thief.’” We find all three arguments unpersuasive and
hold that the trial court did not err in sentencing defendant.
First, the trial court did not depart from its role as an
impartial judge by bringing missing pieces of evidence to the
State’s attention and permitting the State to reopen its case
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during the sentencing hearing to prove the alleged aggravating
factor. To support its assertion that defendant had committed
the present offense while on pretrial release, the State called
one deputy clerk of court and introduced a computer printout
showing that Jennifer Lynn Smith had a pending charge for
“misdemeanor shoplifting and concealment of goods” with an
offense date of 12 January 2009. On cross-examination,
defendant’s counsel highlighted the fact that there was no
photograph of the defendant in that case and raised doubts as to
whether the Jennifer Smith in the printout was defendant. The
State then rested its case as to the alleged aggravating factor.
Outside the presence of the jury, the trial court then
asked, “The State is not offering any evidence tying in any
biographical data between this one charged and this one in this
case?” The prosecutor responded, “Your Honor, her birth date and
all that information is actually on the computer printout.” The
trial court then asked the prosecutor how the State could tie
that information to defendant without additional evidence. As
the prosecutor considered his options, the trial court suggested
that the prosecutor just ask the courtroom clerk to compare the
biographical data on the printout with some official document
tied to defendant’s arrest in the present case. Defendant
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objected, but the trial court overruled the objection and
permitted the State to call the courtroom clerk and introduce
her testimony comparing the biographical data on the printout to
the arrest warrant connected to the present charges.
The law imposes on the trial judge the duty
of absolute impartiality. However, not every
ill-advised expression by the trial judge is
of such harmful effect as to require a
reversal. The objectionable language must be
viewed in light of all the facts and
circumstances, and unless it is apparent
that such infraction of the rules might
reasonably have had a prejudicial effect on
the result of the trial, the error will be
considered harmless.
State v. Wise, 178 N.C. App. 154, 161, 630 S.E.2d 732, 736
(2006) (citations, quotation marks, and brackets omitted).
Additionally, “the judge in his discretion may permit any party
to introduce additional evidence at any time prior to verdict. A
judge’s decision in this regard will be reversed only upon a
showing of an abuse of discretion.” Id. at 163, 630 S.E.2d at
737 (citations, quotation marks, and brackets omitted).
Defendant only argues that the trial court abused its discretion
in permitting the State to re-open its case because it showed a
lack of impartiality.
In Wise, the State initially failed to produce evidence of
defendant’s release date from prison, which the trial court
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considered a material issue of fact that the jury had to
resolve. Id. at 161-62, 630 S.E.2d at 736-37. The defendant
argued that
the judge acted as the prosecutor by
allowing the prosecution to reopen the case
and suggesting to the prosecution that it
needed to make a motion to reopen the case.
Furthermore, [the] defendant claim[ed] that
had the judge not appraised the prosecutor
of the law, the State’s case against
defendant would have failed, and therefore
the judge’s interference was prejudicial.
Id. at 162, 630 S.E.2d at 737. We held that the trial court’s
comments were not prejudicial error “because in the present case
the judge merely settled a legal dispute outside of the presence
of the jury.” Id.Similarly, in State v. Ryder, the defendant argued that the
trial court violated his right to a fair trial by highlighting
that the prosecutor had failed to ask a witness to make an in-
court identification of the defendant and allowing him to ask
for such an identification on re-direct examination. 196 N.C.
App. 56, 61, 674 S.E.2d 805, 809 (2009). We noted that “the
trial court was not required to assume that the State would fail
to recognize its error and remain silent so that defendant would
be advantaged by the State’s mistake.” Id. at 62, 674 S.E.2d at
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810. We held that the trial court’s intervention was not error
and did not “suggest a lack of impartiality.” Id.
Here, as in Ryder and Wise, the trial court’s remarks were
made outside of the presence of the jury. “[T]herefore, this
appeal does not present any question of the trial court’s
prejudicing the jury by expressing an opinion in its presence.”
Id. at 61, 674 S.E.2d at 809. The trial court simply called an
omission to the attention of the prosecutor and suggested a
manner of curing the omission that would avoid inconvenience and
delay. Unlike in those cases where we have ordered a new trial,
the trial judge here did not “intervene[] with questions and
comments well over 100 times” in the presence of the jury. State
v. Steele, 23 N.C. App. 524, 526, 209 S.E.2d 372, 373 (1974).
Additionally, during the defendant’s case in mitigation,
the trial court afforded her similar latitude. Defendant
asserted that her work history was a factor in mitigation. The
trial court noted that defendant had failed to present evidence
on that factor and permitted defendant’s trial counsel to recall
defendant to testify on that point specifically. Therefore, we
conclude that the trial court did not improperly depart from its
neutral role or abuse its discretion in allowing the State to
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reopen its case and present additional evidence on the alleged
aggravating factor.
Defendant next argues that the trial court erred in failing
to find her asserted mitigating factors. We disagree.
The defendant bears the burden of proving
mitigating circumstances by a preponderance
of the evidence. A sentencing judge must
find a statutory mitigating sentence factor
if it is supported by a preponderance of the
evidence. A mitigating factor is proven when
the evidence is substantial, uncontradicted,
and there is no reason to doubt its
credibility. The trial court has wide
latitude in determining the existence of
mitigating factors.
State v. Kemp, 153 N.C. App. 231, 241, 569 S.E.2d 717, 723
(citations, quotation marks, and brackets omitted), disc. rev.
denied, 356 N.C. 441, 573 S.E.2d 158 (2002).
Defendant asserted six mitigating factors under N.C. Gen.
Stat. § 15A-1340.16(e) (2007): (1) that she played a minor role
in the crimes, N.C. Gen. Stat. § 15A-1340.16(e)(2); (2) that she
had a mental or physical condition which lessened her
culpability, N.C. Gen. Stat. § 15A-1340.16(e)(3); (3) that she
was a person of good character, N.C. Gen. Stat. § 15A-
1340.16(e)(12); (4) that she supports her family, N.C. Gen.
Stat. § 15A-1340.16(e)(17); (5) that she had a support system in
the community, N.C. Gen. Stat. § 15A-1340.16(e)(18); and (6)
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that she had a positive employment history, N.C. Gen. Stat. §
15A-1340.16(e)(19).
The only evidence she presented as to all six was testimony
from defendant herself and defendant’s mother. Defendant
testified that she had a substance abuse problem and that on the
day of the robbery she and her husband had taken drugs and
consumed three pints of vodka. She further testified that she
had been diagnosed with bipolar disorder. Defendant explained
that she had gone to school to be a paralegal and that from
approximately August 2008 to February 2009 she worked as a
paralegal. She quit her paralegal job because of her substance
abuse problem.
“While evidence [of a mitigating factor] may not be
ignored, it can be properly rejected if it fails to prove, as a
matter of law, the existence of the mitigating factor.” State v.
Blackwelder, 309 N.C. 410, 419, 306 S.E.2d 783, 789 (1983). We
have held that “one witness’ conclusory testimony as to the
existence of a support structure is unsubstantial and
insufficient to clearly establish the factor and does not compel
a finding of the mitigating factor.” Kemp, 153 N.C. App. at 242,
569 S.E.2d at 723. It is the trial court’s role to assess the
credibility of witnesses. State v. Maness, 321 N.C. 454, 463,
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364 S.E.2d 349, 354 (1988). Uncontradicted evidence conclusively
establishes a mitigating factor only if “no reasonable inference
to the contrary can be drawn[] and . . . the credibility of the
evidence is manifest as a matter of law.” State v. Jackson, 119
N.C. App. 285, 291, 458 S.E.2d 235, 240 (1995).
Testimony in support of a mitigating factor is “manifestly
credible [when] there are only latent doubts as to the
credibility of oral testimony and the opposing party has failed
to point to specific areas of impeachment and contradictions.”
State v. Pigott, 331 N.C. 199, 214, 415 S.E.2d 555, 564 (1992)
(citation and quotation marks omitted). In this case, the only
testimony as to any of the mitigating factors was that of
defendant and her mother. “[T]he relationship of the witnesses
to defendant is a factor which the fact-finder may consider in
assessing the witnesses’ credibility.” State v. Taylor, 309 N.C.
570, 578, 308 S.E.2d 302, 308 (1983). We conclude that none of
the testimony was manifestly credible as a matter of law.
First, the trial court was not required to accept
defendant’s characterization of her role in the crime as
“minor.” “A minor role can be defined as one in which the
individual performs a comparatively unimportant function in the
commission of an offense.” State v. Crandall, 83 N.C. App. 37,
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40, 348 S.E.2d 826, 829 (1986), disc. rev. denied, 319 N.C. 106,
353 S.E.2d 115 (1987). Here, there was evidence, as noted by the
trial court, that defendant acted as a lookout, scout, and
getaway driver for her husband. The trial court did not err in
refusing to find that her role was minor.
Second, as to a mental or physical condition, the trial
court was not required to believe defendant’s testimony that she
had been diagnosed as bipolar or accept that this diagnosis
would in any way mitigate her crimes, particularly without any
medical evidence as to the details of her condition or any
expert testimony as to how this disorder may affect her. See id.“While a mental condition may be capable of reducing a
defendant’s culpability for an offense, evidence that the
condition exists, without more, does not mandate consideration
as a mitigating factor.” Jackson, 119 N.C. App. at 291, 458
S.E.2d at 240. Moreover, this testimony was not inherently
credible. Defendant introduced no evidence of a diagnosis by a
medical professional other than her conclusory testimony.
Therefore, the trial court did not err in refusing to find this
mitigating factor.
Third, although defendant’s mother testified that she was
considered a person of good moral character in her community,
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the trial court specifically noted that she had “shown since
2008 that [she is] a thief” and referenced her history of
larceny. The trial court was not required to accept the
testimony of defendant’s mother that she was a person of good
character, especially when there was evidence that she had a
recent history of larceny. See Maness, 321 N.C. at 463, 364
S.E.2d at 354 (holding that it was not error for the trial court
to refuse to find that the defendant was a person of good
character if it did not consider the testimony credible).
Moreover, the trial court could legitimately consider that this
testimony was offered by defendant’s mother in assessing its
credibility. See Taylor, 309 N.C. at 577, 308 S.E.2d at 308.
Therefore, the trial court did not err in refusing to find that
defendant was a person of good character.
Fourth, the evidence that defendant supported her children
or family and that she had a support system in the community was
not inherently credible. She testified that she took care of the
children while her husband had been in prison and supported
them. Yet she also testified that she had a long-standing
substance abuse problem. The only employment history she
presented was eight months of paralegal work, which she quit due
to her substance abuse. She further testified that after she
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quit her paralegal job, her source of income, she would help
feed, clothe, and bathe her children. Both she and her mother
testified that defendant and her children had relied on her
mother for support. “One witness’ conclusory testimony as to the
existence of a support structure is unsubstantial and
insufficient to clearly establish the factor and does not compel
a finding of the mitigating factor.” State v. Wiggins, 159 N.C.
App. 252, 271, 584 S.E.2d 303, 317 (citation and quotation marks
omitted), disc. rev. denied, 357 N.C. 511, 588 S.E.2d 472(2003), cert. denied, 541 U.S. 910, 158 L.Ed. 2d 256 (2004).
Defendant’s testimony that she had supported her family and the
testimony that she had a support system in the community were
not inherently credible. See State v. Harrison, 164 N.C. App.
693, 697-98, 596 S.E.2d 834, 838 (holding that the trial court
was not required to credit the defendant’s self-serving
testimony, considering the discrepancies in the evidence), disc.
rev. denied, 358 N.C. 736, 602 S.E.2d 362 (2004). Therefore, the
trial court did not err in refusing to find those mitigating
factors.
Finally, defendant asserted that she had a positive
employment history. However, the only employment history she
testified to was the time she spent as a paralegal. “A trial
-25-
court is not required to find a mitigating factor concerning
positive employment history when a defendant has only presented
evidence of jobs held, but provides no other evidence of
positive employment history.” State v. Bacon, ___ N.C. App. ___,
___, 745 S.E.2d 905, 909 (2013). She admitted that she stopped
working because of her addiction. Moreover, there was no
evidence that she was “gainfully employed” at the time of the
crimes here. Therefore, the trial court did not err in refusing
to find this mitigating factor.
In conclusion, none of the evidence presented by defendant
conclusively established any mitigating factor. “The evidence at
the sentencing hearing here would have permitted such . . .
finding[s], but in our view it did not compel it.” State v.
Bynum, 65 N.C. App. 813, 815, 310 S.E.2d 388, 390, disc. rev.
denied, 311 N.C. 404, 319 S.E.2d 275 (1984). None of the
testimony presented was inherently credible and the trial court
was not required to believe it. Therefore, we hold that the
trial court did not err in refusing to find any mitigating
factors here.
Finally, defendant asserts that the trial court abused its
discretion by using improper considerations in sentencing.
-26-
Defendant asserts that the following statement by the trial
court shows its consideration of improper factors:
The court finds an aggravating factor to
this, in both these offenses, in that the
offenses were committed at a time when you
were on a pretrial release. You have a
history of misdemeanor larceny and, although
it doesn’t count for points, you were facing
a charge of misdemeanor shoplifting. You have
shown since 2008 that you are a thief. And
the activity in which you were found guilty
of in this instance was ramped up to the
point that you were running with a rogue,
albeit your husband, and he was a thief with
the use of a firearm. You are not a minor
participant. You drove the vehicle. And the
film indicates and shows that, unless it
drove itself. And I don’t know about your
physical condition or your mental condition,
you say you’ve got it, but I think – I’m not
going to find that as a mitigating factor.
And any positive employment history is
limited at best. What you’ve done and do for
your children, quite candidly, a house cat
would do for kittens. Thank goodness your
mother and father are still around and
capable of taking care of them in the absence
of your husband and you. In any event, no
mitigating factors exist. One aggravating
factor has been found, and the aggravating
outweighs the mitigating. You will be
sentenced in the aggravated range.
Defendant asserts that by stating that she “has shown since
2008 that [she is] a thief” the trial court was considering
defendant’s 2008 conviction for misdemeanor larceny, not the
pending misdemeanor charge used in aggravation. We agree that
-27-
the trial court was commenting on her prior conviction, but
disagree that the comment was improper.
As discussed above, the trial court’s statement that
defendant is a thief was in the midst of its explanation for why
it was rejecting all of defendant’s mitigating factors. The fact
that defendant has a history of larceny directly contradicts the
testimony that defendant is a person of good character. There is
no indication that the trial court used her 2008 larceny
conviction as an aggravating factor. The only aggravating factor
found was that defendant was on pretrial release for the 2009
shoplifting charge at the time of the crimes charged here.
Defendant raised her character as an issue in mitigation.
Therefore, we hold that it was not improper for the trial court
to comment on defendant’s character in its sentencing decision.
See State v. Murphy, 152 N.C. App. 335, 345, 567 S.E.2d 442, 448
(noting that ‘[w]hen a defendant produces evidence of his
character in order to take advantage of the ‘good character or
reputation’ mitigating factor, character becomes a direct issue
in the case . . . .”), disc. rev. denied, 356 N.C. 442, 573
S.E.2d 161 (2002).
IV. Conclusion
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For the foregoing reasons, we conclude that defendant has
failed to show plain error in the conduct of the guilt phase of
defendant’s trial. We further conclude that the trial court did
not err during the sentencing phase of her trial.
NO PLAIN ERROR; NO ERROR.
Judges CALABRIA and DAVIS concur.
Report per Rule 30(e).