The opinion
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA24-690
Filed 5 March 2025
Gaston County, No. 16 CRS 055300
STATE OF NORTH CAROLINA
v.
EDUARDO JORGE ROJAS
Appeal by defendant from judgment entered 14 September 2023 by Judge
Steve R. Warren in Superior Court, Gaston County, No. 16 CRS 055300. Heard in
the Court of Appeals 28 January 2025.
Attorney General Jeff Jackson, by Special Deputy Attorney General T. Hill
Davis III, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Katherine
Jane Allen, for defendant.
FREEMAN, Judge.
Eduardo Jorge Rojas (“defendant”) appeals his aggravated sentence of 397 to
489 months imprisonment entered and based on his conviction for second-degree
murder. Defendant contends the sentencing judge erred in failing to find the
statutory mitigating factor that “[t]he defendant was suffering from a mental or
physical condition that was insufficient to constitute a defense but significantly
reduced the defendant’s culpability for the offense.” N.C.G.S. § 15A-1340.16(e)(3)
(2023). After careful review, we conclude the sentencing judge did not err in refusing
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Opinion of the Court
to find this mitigating factor and we affirm defendant’s resentencing.
I. Background
A complete recitation of the facts relevant to defendant’s trial and initial
sentencing can be found in this Court’s prior opinion in this matter. See State v.
Rojas, No. COA20-810, 2021 WL 5066762 (N.C. Ct. App. Nov. 2, 2021). Because this
appeal concerns only defendant’s resentencing, a brief overview of the background
will suffice.
On 5 May 2016, defendant murdered his girlfriend, Amoritta Starr Costner,
and left her body in a bathtub at their shared home. The victim’s autopsy revealed
112 stab wounds, 49 cutting wounds, and several blunt trauma injuries. Defendant
inflicted these wounds all over the victim’s body—including her face, head, neck,
wrists, hands, chest, back, stomach, and buttocks—using multiple different weapons.
Three of the numerous stab wounds to the victim’s neck nicked her jugular
vein and carotid artery. These wounds were fatal, but not immediately so; the victim
bled to death over the course of several minutes. According to the responding Crime
Scene Investigator, who has processed over 1,000 crime scenes, “[t]his one was the
worst as far as I’ve ever seen, as far as the amount of wounding . . . [t]his is one that
never leaves the memory.”
After murdering the victim, defendant “contacted his mother to come to his
house, pick him up, and take him to the hospital.” Rojas, 2021 WL 5066762, at *1.
Defendant’s “clothes were bloody and bleach-stained, and he smelled of bleach.” Id.
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Opinion of the Court
(cleaned up). After defendant refused to go inside to change his clothes, his mother
transported him to a nearby hospital. Id. Defendant’s mother then returned to the
home where she discovered the victim’s body. Id. Upon defendant’s discharge from
the hospital, he was arrested and charged with murder. Id.
After initially being found incapable of proceeding to trial
due to psychotic disorders, Rojas received psychiatric
hospital care. In three follow-up evaluations over several
years, experts found him “barely” competent to stand trial
but in a “precarious” situation that would require re-
evaluation, particularly once Rojas confronted the stress of
a trial. After his final evaluation, more than a year passed
before Rojas pleaded guilty to second degree murder and
then proceeded to a [bench] trial on the sentencing factors
without any follow-up evaluation.
...
After hearing the evidence, the trial court found two
aggravating factors. First, the court found that Rojas took
advantage of a position of trust or confidence. Second, the
court found that the offense was especially heinous,
atrocious, or cruel. The court found that the mitigating
factors offered by Rojas were present but were outweighed
by the two aggravating factors. The court sentenced Rojas
to an aggravated range sentence of 397 to 489 months in
prison.
Id. at *1–3.
In his first appeal, defendant argued that the trial court erred “by failing, on
its own initiative, to conduct a competency hearing before the sentencing proceeding
because there was substantial evidence before the court that raised questions about
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his competency.” Id. at *3.1 This Court agreed with defendant’s argument, vacated
his criminal sentence, and remanded “for the trial court to conduct a new sentencing
proceeding after first evaluating Rojas’s capacity to proceed.” Id. at *4.
On 21 August 2023, after a hearing before Judge Robert. C. Ervin, the trial
court on remand found “based upon the most recent evaluation” defendant was
“mentally competent and capable of proceeding” with a new sentencing proceeding.
The new sentencing proceeding took place on 13 and 14 September 2023 before Judge
Steven R. Warren in Gaston County Superior Court.
At the sentencing hearing, defendant presented testimony from Dr. Sherif
Soliman, a forensic psychiatrist. Dr. Soliman testified on direct examination in part:
Q. And so in what capacity did you have an opportunity to
meet Mr. Rojas?
A. I was asked to evaluate his capacity to proceed, in my
role at Broughton Hospital.
Q. And in your evaluation, did you have an opportunity to
view his medical records?
A. I did.
Q. And in your capacity to proceed, or view his medical
records, did you determine if he had a psychiatric
diagnosis?
A. I did.
1 Defendant also argued “the trial court erred by allowing him to waive his right to a jury
trial on the existence of aggravated sentencing factors.” Rojas, 2021 WL 5066762, at *5. We rejected
this argument under our Supreme Court’s controlling precedent. See id. (citing State v. Hamer, 377
N.C. 502 (2021)).
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Q. And what was that diagnosis?
A. I diagnosed Mr. Rojas with schizophrenia.
...
Q. So looking back over Mr. Rojas’ medical records, and the
situation that was going on, can you give us a general idea
of his symptoms of schizophrenia that might have existed
in 2016?
A. Well, I can speak to his current symptoms of
schizophrenia. The record wasn’t sufficiently detailed to
describe his symptoms in 2016. . . .
...
Q. Well, let me ask you this. In 2016, a crime of great rage
and violence occurred. Is it possible that one suffering from
schizophrenia, that could contribute to that kind of
behavior?
A. Is it possible? If it’s possible, broadly—a lot of things—
it’s certainly possible. But again, I just want to emphasize
that I didn’t evaluate whether he did in this case. So I can’t
testify with reasonable medical certainty that it did or did
not, but it’s certainly possible.
On cross-examination, Dr. Soliman testified in part as follows:
Q. So, Dr. Soliman—and please correct me if I’m wrong
with any of my questions, I want to make sure I understood
your testimony.
In this particular case with Mr. Rojas, you were looking at
one thing specifically, which was his capacity to proceed; is
that correct?
A. That is correct.
Q. And with that, I think you kind of indicated it was a
snapshot for at that time was he capable to proceed. And
with the capacity to proceed you have to look at certain
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standards that have been delineated by the Court as to
whether or not he can help his attorney with his defense,
whether or not he can understand the roles of the different
people in the courtroom, things of that nature; is that
correct?
A. Yes. All of those are included in the capacity to proceed
standard.
Q. All right. And in your report there is not any mention,
and none of your testimony can go to how any sort of
diagnosis that he may or may not have had could have
affected him on May 5th of 2017; is that correct?
A. That’s correct. I wasn’t asked to evaluate his mental
state at the time, so I wasn’t asked to evaluate him to offer
an opinion on diminished capacity, or an insanity defense.
Defendant also testified on his own behalf at the sentencing hearing. During
cross-examination, defendant testified in part as follows:
Q. Mr. Rojas, you have been testifying for about the last 12
minutes; is that correct?
A. Yes. About that, yes.
Q. Okay. And during that whole time you have been
blaming Starr for what happened; isn’t that right?
A. No, I’m blaming the medication and the negativity in the
room and being hallucinating and feeling bothered and not
respected, and just—
Q. So you felt bothered and disrespected, and that’s why
we’re here today; is that right?
A. No.
Q. Let’s talk about the medications, since you brought that
[up].
You indicated that you have been in several hospitals, I
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Opinion of the Court
think in New York; is that right?
A. Yes.
Q. Okay. And you know that nobody was ever able to get
any sort of records from any of those hospitals; did you
know that?
A. I didn’t know that. I don’t know how long they keep their
records, but it’s been a while since I started.
Q. Okay. And you told the Court that when you first started
dating Starr, and the medication went missing, were you
aware that when they searched your home after you
murdered your girlfriend they found, like, an entire stack
of your antipsychotic medicine, not used, in the storage
room?
A. No.
Q. So isn’t it true that you were just choosing not to take
your medication and using drugs like cocaine instead?
A. No, not at all.
Q. Did you or did you not test positive for cocaine the very
next day after you murdered Starr when you went to the
hospital?
A. Yeah, that was her drug of choice. And when she would
warm me up, I guess, or—that was just her daily routine.
You know, like, here I got this for you, just do it. She had
took my pain medication from being shot and I needed
something to feel a little bit relieved, or something.
Q. Okay. So again, this was Starr’s fault that you took
cocaine. And instead of going back to the doctor, or going to
your mom to get the medication you were supposed to be
on, you chose to do an illegal substance instead; is that
right?
It’s a simple yes or no.
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A. Not because of that, no.
During the sentencing proceeding, a jury found the existence of two
aggravating factors: the offense was especially heinous, atrocious, or cruel, and
defendant took advantage of a position of trust or confidence to commit the offense.
The trial court found the existence of three mitigating factors: defendant has a
support system in the community; defendant has a positive employment history or is
gainfully employed; and defendant has a good treatment prognosis and a workable
treatment plan is available.
After finding the aggravating factors outweighed the mitigating factors, the
trial court imposed an aggravated sentence of 397 to 489 months imprisonment.
Defendant timely appealed to this Court, arguing that the trial court erred in failing
to find the statutory mitigating factor that, at the time of the murder, he was
suffering from a mental or physical condition that was insufficient to constitute a
defense but that nevertheless significantly reduced his culpability for the offense.
II. Jurisdiction
A defendant who has been found guilty, or entered a plea
of guilty or no contest to a felony, is entitled to appeal as a
matter of right the issue of whether his or her sentence is
supported by evidence introduced at the trial and
sentencing hearing only if the minimum sentence of
imprisonment does not fall within the presumptive range
for the defendant’s prior record or conviction level and class
of offense.
N.C.G.S. § 15A-1444(a1) (2023). Because defendant pleaded guilty, and because his
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minimum sentence of imprisonment does not fall within the presumptive range for
his prior record level and class of offense, this Court has jurisdiction over his appeal
of right. See also N.C.G.S. § 7A-27(b)(4) (2023) (“[A]ppeal lies of right directly to the
Court of Appeals . . . [f]rom any other order or judgment of the superior court from
which an appeal is authorized by statute.”).
III. Standard of Review
Generally, “[t]his Court reviews a trial court’s decision to sentence outside of
the presumptive range for an abuse of discretion.” State v. Davis, 206 N.C. App. 545,
548 (2010). However, because this case requires us to determine whether the
sentencing judge erred in failing to find a statutory mitigating factor, rather than in
weighing properly found aggravating and mitigating factors, we review this issue de
novo. See State v. Jones, 309 N.C. 214, 218–20 (1983).
IV. Analysis
A sentencing judge must “consider evidence of aggravating or mitigating
factors present in the offense that make an aggravated or mitigated sentence
appropriate, but the decision to depart from the presumptive range is in the discretion
of the court.” N.C.G.S. § 15A-1340.16(a) (2023). “The State bears the burden of
proving beyond a reasonable doubt that an aggravating factor exists, and the offender
bears the burden of proving by a preponderance of the evidence that a mitigating
factor exists.” Id.
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“When evidence in support of a particular mitigating or aggravating factor is
uncontradicted, substantial, and there is no reason to doubt its credibility,” a
sentencing judge errs in not finding such factor. Jones, 309 N.C. at 218–19 (emphasis
added).
Thus, when a defendant argues, as in the case at bar, that
the trial court erred in failing to find a mitigating factor
proved by uncontradicted evidence, his position is
analogous to that of a party with the burden of persuasion
seeking a directed verdict. He is asking the court to
conclude that the evidence so clearly establishes the fact in
issue that no reasonable inferences to the contrary can be
drawn, and that the credibility of the evidence is manifest
as a matter of law.
Id. at 219–20 (cleaned up).
“A trial judge is given wide latitude in determining the existence of . . .
mitigating factors, and the trial court’s failure to find a mitigating factor is error only
when no other reasonable inferences can be drawn from the evidence.” State v.
Johnson, 196 N.C. App. 330, 336 (2009) (quoting State v. Norman, 151 N.C. App. 100,
105–06) (2002)). Therefore, “[a]n appellate court may reverse a trial court for failing
to find a mitigating factor only when the evidence offered in support of that factor is
both uncontradicted and manifestly credible.” State v. Mabry, 217 N.C. App. 465, 471
(2011) (emphasis added) (cleaned up).
Here, defendant argues the trial court erred in failing to find the statutory
mitigating factor that, at the time he murdered the victim by stabbing and cutting
her over 160 times, he “was suffering from a mental or physical condition that was
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insufficient to constitute a defense but significantly reduced [his] culpability for the
offense.” N.C.G.S. § 15A-1340.16(e)(3). To prevail on this issue, defendant must show
he offered evidence in support of this factor which was “uncontradicted, substantial,”
Jones, 309 N.C. at 218, “manifestly credible,” Mabry, 217 N.C. App. at 471, and from
which “no other reasonable inferences can be drawn,” Johnson, 196 N.C. App. at 336.
We conclude defendant has failed to meet this high bar.
Defendant argues Dr. Soliman’s testimony provided substantial,
uncontradicted, and manifestly credible evidence establishing that: (1) defendant
“suffered from the disease of schizophrenia for over twenty years” and (2)
“[s]chizophrenia can contribute to crimes such as this one.”2 Defendant’s burden,
however, was to provide substantial, uncontradicted, and manifestly credible
evidence establishing that: (1) he suffered from schizophrenia at the time of the
murder and (2) his schizophrenia in fact “significantly reduced [his] culpability” for
the murder. N.C.G.S. § 15A-1340.16(e)(3).
Accordingly, our review focuses on whether Dr. Soliman’s testimony
established that defendant was suffering from schizophrenia at the time of the
2 Defendant also argues that portions of his own testimony provide substantial,
uncontradicted, and manifestly credible evidence. However, defendant’s testimony does not qualify as
the kind of “manifestly credible” evidence relevant to our analysis. Though appellate courts do not
ordinarily judge the credibility of witnesses, in this case we must determine whether the credibility of
defendant’s testimony is “manifest as a matter of law.” Jones, 309 N.C. at 220 (cleaned up).
Considering defendant’s history of competency issues, the content of his actual testimony, and his
obvious self-interest in the outcome of the re-sentencing hearing, we conclude his testimony was not
manifestly credible and therefore did not compel a finding of the mitigating factor under section 15A-
1340.16(e)(3).
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murder and that such mental condition significantly reduced defendant’s culpability.
Presuming, without deciding, defendant’s evidence established he was suffering from
schizophrenia at the time of the murder, Dr. Soliman did not offer substantial and
uncontradicted evidence tending to show defendant’s schizophrenia significantly
reduced his culpability for the offense.
Although Dr. Soliman testified it was “certainly possible” schizophrenia could
contribute to the “kind of behavior” defendant displayed when he viciously murdered
the victim, he “emphasize[d] that [he] didn’t evaluate whether [it] did in this case.”
Dr. Soliman specifically testified he “wasn’t asked to evaluate [defendant’s] mental
state at the time” of the offense and “wasn’t asked to evaluate him to offer an opinion
on diminished capacity[.]” Accordingly, Dr. Soliman stated “I can’t testify with
reasonable medical certainty that it,” i.e., defendant’s schizophrenia, “did or did not”
contribute to the murder.
Our review of the record and transcripts in this case demonstrates that
defendant failed to offer substantial, uncontradicted, and manifestly credible
evidence that his schizophrenia significantly reduced his culpability for the offense.
Defendant’s only expert witness could not, and did not, testify with reasonable
medical certainty that defendant’s schizophrenia contributed to the murder or
otherwise significantly reduced defendant’s culpability for the offense. Based upon
the evidence presented at the re-sentencing hearing, the sentencing judge did not err
in failing to find defendant’s proposed mitigating factor under section 15A-
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1340.16(e)(3) or in imposing an aggravated sentence of 397 to 489 months
imprisonment.
V. Conclusion
An appellate court may reverse a trial court’s decision not to find a mitigating
factor only if the evidence supporting such factor is substantial, uncontradicted, and
manifestly credible. Because defendant failed to present substantial, uncontradicted,
and manifestly credible evidence supporting his proposed mitigating factor under
section 15A-1340.16(e), the trial court did not err in failing to find that mitigating
factor.
NO ERROR.
Judges TYSON and CARPENTER concur.
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