State v. Smith

An unpublished opinion of the North Carolina Court of Appeals does not constitute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
 -2-
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
 -3-
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
 -4-
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.
 -5-
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.
 -6-
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
 -7-
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
 -8-
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
 -9-
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
 -10-
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)
 -11-
(“[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?
 -12-
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
 -13-
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
 -14-
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
 -15-
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
 -16-
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
 -17-
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
 -18-
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
 -19-
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)
 -20-
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,
 -21-
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,
 -22-
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,
 -23-
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
 -24-
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
 -28-
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).