The opinion
An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1373
NORTH CAROLINA COURT OF APPEALS
Filed: 1 July 2014
STATE OF NORTH CAROLINA
v. Burke County
No. 11 CRS 2419, 52565
LUIS GUSTAVO LICONA ROSALES
Appeal by Defendant from judgments entered 26 April 2013 by
Judge Eric L. Levinson in Superior Court, Burke County. Heard
in the Court of Appeals 20 May 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Teresa M. Postell, for the State.
Appellate Defender Staples S. Hughes, by Assistant
Appellate Defender Anne N. Gomez, for Defendant.
McGEE, Judge.
Luis Gustavo Licona Rosales (“Defendant”) was found guilty
on two counts of first-degree statutory rape or sex offense.
Defendant received two active sentences of 160 months to 201
months, to run consecutively. Defendant appeals.
The State’s evidence at trial tended to show that Defendant
first met the alleged juvenile victim (“the child”) in 2010, at
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the home of the child’s aunt, when the child was thirteen years
old. After Defendant became a friend of the child’s mother and
stepfather, he saw the child more frequently. Defendant was
riding home from the mall one evening with the child and the
child’s family, when Defendant used the child’s hand to
“masturbat[e] himself.” Defendant continued to see the child
regularly. He played with the child almost every other day,
teaching the child soccer, and participating in trips with the
child’s family.
The child testified that he saw Defendant as: “A father
figure.” The child testified that, when he was thirteen or
fourteen years old, Defendant anally penetrated him with his
penis at the child’s apartment while the child’s parents were at
work. Defendant began going to the child’s apartment every day.
Defendant would often watch television and pornography with the
child and talk to the child about sex, in an attempt to make the
child feel more comfortable with sexual contact. Defendant
continued to anally penetrate the child until just after the
child turned fifteen years old.
The child further testified he had previously been sexually
abused when he was six or seven years old and living in
Honduras. When the child was approximately fourteen years old,
he told his mother about the prior abuse in Honduras, but did
not tell her that Defendant had been abusing him. The child’s
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mother took him to Betsy Hurd (“Ms. Hurd”), a licensed
practitioner of “trauma-focused cognitive behavioral therapy.”
The child, through journal entries, wrote about Defendant’s
abuse, which indicated what Defendant had allegedly done to him.
After reading the child’s journal entries, Ms. Hurd reported the
information to the child’s mother, contacted the police, and
arranged a medical interview. Defendant was arrested and
charged with two counts of first-degree statutory sexual offense
and two counts of indecent liberties with a child. Defendant
pleaded not guilty to all four charges. Defendant was convicted
on both first-degree statutory sexual offenses and was found not
guilty on the two charges of indecent liberties. Defendant
appeals.
I.
In Defendant’s first argument, he contends the trial court
committed error, or plain error, when it allowed an expert
witness for the State to testify that her physical examination
of the child was consistent with the child’s testimony, thereby
improperly bolstering the credibility of that testimony. We
disagree.
Elizabeth Browning (“Ms. Browning”), was a registered and
certified nurse “for adult[,] adolescent . . . and . . .
pediatric sexual assault nursing.” Ms. Browning testified at
trial, as an expert, regarding her 31 August 2011 medical
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interview and physical examination of the child. Ms. Browning
testified that her physical examination of the child did not
yield any physical evidence of abuse; however, Ms. Browning also
testified that many victims of sexual abuse do not show signs
during their physical examinations because those kinds of
injuries tend to heal very quickly. Ms. Browning gave, inter
alia, the following testimony relevant to this appeal:
Q And when you performed that [physical]
examination on [the child], what were the
findings that you made on that exam?
. . . .
A I looked at [the child’s] anus. And [the
child] had normal anal tone, which is what
we look at, and [the child] didn't have any
fissures or scars that I noted.
Q Now, what does that mean, that [the
child] had normal anal tone?
A Just means that it doesn't gape open,
that [the child] had what we would call a
positive anal wink, which is that the
sphincter works correctly. It will open and
shut the way it's supposed to.
Q Now, ma'am, do you have an opinion as to
whether your findings on physical exam were
consistent with both [the child]'s
disclosure to you at the Gingerbread House,
and [the child’s] testimony here today?
[Defendant]: I'll object, Your Honor.
THE COURT: You all want to approach for
a moment?
(Bench conference with [the State] and
[Defendant].)
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THE COURT: Okay. [The State]?
[The State]: Thank you, Your Honor.
[The State]:
Q Ma'am, do you have an opinion based on
your knowledge, training, and experience,
having conducted over 1000 such of these
exams, as to whether your physical findings
were consistent with both the disclosure
given to you by [the child] in August 2011
[at] the Gingerbread House, and with [the
child’s] testimony here in the courtroom
today?
A I do.
Q And what is that opinion?
A They are consistent.
Q Okay. Ma'am, you've said that basically
the findings about [the child]’s anus were
within normal limits. Explain to the jury,
if you would, how that could be, if [the
child] had had anal sex with [] Defendant.
A The anus opens and closes. We just
talked about the sphincter. We look for
that anal wink. It opens and closes, and it
gets really large to accommodate, such as a
large bowel movement. Also, it is a mucous
membrane. Mucous membranes heal very
quickly. It's like your mouth. If you were
to bite your tongue or your cheek, it heals
pretty quickly. So if there had been an
injury there, it had been a while and it
could have healed. So it's consistent to
not see anything.
. . . .
Q Ma'am, was [the child]’s testimony today
in the courtroom consistent with what [the
child] reported to you at the Gingerbread
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House?
A Yes. It was more than what [the child]
reported but yes, it was consistent.
. . . .
[Defendant]:
Q Ma'am, you stated that [the child] had
normal anal tone and no fissures?
A Yes.
Q Can you describe to the jury what a
fissure is and what it means when there are
no fissures?
A Yes. A fissure is a little break in the
skin that opens up, again, if you have a
large bowel movement or there's been maybe,
possibly a trauma to that area. If there is
one, we typically don't think much about it
because again, they come from large bowel
movements or hard bowel movements. You can
get them from constipation. So it's
typically an unremarkable finding. But we
still document whether we see any evidence
of one, or one that may have healed. And in
this case, [the child] had no evidence of a
fissure.
Q In this case, you would say that there
was no visible evidence of previous injury.
A Exactly.
. . . .
Q There were no findings of abuse. But
that's also consistent with non-abuse.
A Yes. There were no findings.
Q Okay. And you're saying that because
there's no findings and there's no visible
evidence of a previous injury, it's because
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if there were any injuries, they could have
healed?
A Yes. They could have.
Q And there also could not have been any
injuries in the first place?
A That’s exactly right.
Defendant contends that Ms. Browning’s answer of: “They are
consistent” with the following testimony, constituted an
improper bolstering of the child’s credibility:
Ma'am, do you have an opinion based on your
knowledge, training, and experience, having
conducted over 1000 such of these exams, as
to whether your physical findings were
consistent with both the disclosure given to
you by [the child] in August 2011 [at] the
Gingerbread House, and with [the child’s]
testimony here in the courtroom today?
However, Defendant did not object to this question or to Ms.
Browning’s answer. Defendant’s prior general objection to this
question ‒ about which no ruling appears in the record ‒ does
not preserve objection to this evidence for appellate review.
“A general objection, when overruled, is ordinarily not adequate
unless . . . it [is] clear that there is no purpose to be served
from admitting the evidence.” State v. Jones, 342 N.C. 523,
535, 467 S.E.2d 12, 20 (1996) (citation omitted); see N.C.R.
App. P. 10(a)(1) (“In order to preserve an issue for appellate
review, a party must have presented to the trial court a timely
request, objection, or motion, stating the specific grounds for
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the ruling the party desired the court to make if the specific
grounds were not apparent from the context. It is also
necessary for the complaining party to obtain a ruling upon the
party’s request, objection, or motion.”); see also State v.
Eason, 328 N.C. 409, 420, 402 S.E.2d 809, 814 (1991).
Because Defendant did not preserve this issue for appellate
review, but did specifically argue plain error in the
alternative, we will conduct our review under the plain error
standard. “In criminal cases, an issue that was not preserved
by objection noted at trial . . . nevertheless may be made the
basis of an issue presented on appeal when the judicial action
questioned is specifically and distinctly contended to amount to
plain error.” N.C.R. App. P. 10(a)(4). In State v. Lawrence,
our Supreme Court recently “clarif[ied] how the plain error
standard of review applies on appeal to unpreserved . . .
evidentiary error[s].” State v. Lawrence, 365 N.C. 506, 518,
723 S.E2d 326, 334 (2012).
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 affect[s] the fairness,
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integrity or public reputation of judicial
proceedings[.]”
Id. (citations omitted). Our Supreme Court held that, in order
to show prejudice sufficient to establish plain error, a
defendant has to show “that, absent the error, the jury probably
would have returned a different verdict.” Id. at 519, 723
S.E.2d at 335.
Defendant argues that Ms. Browning bolstered the child’s
credibility when she agreed that her "physical findings were
consistent with both the disclosure given to [her] by [the
child] in August 2011 [at] the Gingerbread House, and with [the
child’s] testimony here in the courtroom" and that it rises to
the level of plain error. We disagree.
“Expert opinion testimony is not admissible to establish
the credibility of the victim as a witness.” State v. Dixon,
150 N.C. App. 46, 52, 563 S.E.2d 594, 598 (2002). “However,
otherwise admissible expert testimony is not rendered
inadmissible merely because it enhances a witness's
credibility.” In re T.R.B., 157 N.C. App. 609, 617, 582 S.E.2d
279, 285 (2003) (citation omitted). “[A]n expert witness may
testify, upon a proper foundation, as to the profiles of
sexually abused children and whether a particular complainant
has symptoms or characteristics consistent therewith.” State v.
Stancil, 355 N.C. 266, 267, 559 S.E.2d 788, 789 (2002)
-10-
(citations omitted). “The nature of the experts' jobs and the
experience which they possess make them better qualified than
the jury to form an opinion as to the characteristics of abused
children.” State v. Grover, 142 N.C. App. 411, 419, 543 S.E.2d
179, 184 (2001) (citation omitted). “Thus, while it is
impermissible for an expert, in the absence of physical
evidence, to testify that a child has been sexually abused, it
is permissible for an expert to testify that a child exhibits
‘characteristics [consistent with] abused children.’” Id.
(citation omitted).
Specifically, Defendant contends that: “Browning’s expert
evidence did more than assure the jury that [the child]’s
physical condition was consistent with his history of sex abuse;
by confirming [the child]’s version of events, [Ms. Browning’s
testimony] also identified Defendant as being the person who
abused [the child].” However, Defendant fails to identify any
specific testimony of the child that Ms. Browning’s testimony
bolstered. In fact, Defendant cites none of the child’s
testimony in his brief. Defendant argues that our Court’s
opinion in State v. Streater, 197 N.C. App. 632, 678 S.E.2d 367
(2009), controls this case. We disagree.
Streater is readily distinguishable from the present case.
In Streater, our Court found the trial court erred when it
allowed an expert to testify “it was [the] defendant who
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repeatedly abused the victim whe[n] no such physical evidence
exist[ed].” Streater, 197 N.C. App. at 642, 678 S.E.2d at 374.
Accordingly, we noted in part that “it [was] the specific
identification of [the] defendant as perpetrator which crosse[d]
over the line into impermissible testimony.” Id. In Streater,
the State asked the expert if his medical findings were
consistent with the “repeated penetration of the defendant’s
penis into the anal area[.]” Id. (emphasis added). The expert
responded: “I think it was consistent with the findings. [The
child] may not, despite having been anally penetrated, [the
child] may not have had any physical findings.” Id. (emphasis
added). Not only did the State, in its question to the expert,
identify the defendant as the perpetrator, but it also asked if
the expert’s findings were consistent with the sexual abuse
having occurred. The expert’s response, that his findings were
consistent with the abuse having in fact occurred, also
indicated that the defendant was the perpetrator of that abuse.
In the present case, unlike the situation in Streater, the
State’s question to Ms. Browning did not directly suggest that
abuse occurred, or that Defendant was the perpetrator of that
abuse. It is clear from Ms. Browning’s testimony that she found
no physical signs of abuse, and that the absence of physical
findings simply meant that either no abuse occurred, or that,
had abuse occurred, any injury resulting from that abuse had
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healed prior to Ms. Browning’s physical examination of the
child. For this reason, Ms. Browning’s lack of physical
findings of abuse was consistent with both abuse having
occurred, and no abuse having occurred. Nothing in Ms.
Browning’s testimony suggests she was agreeing with or
bolstering the child’s identification of Defendant as the
perpetrator of the abuse. Ms. Browning clearly testified that
she did not observe any signs of physical abuse; she did not
testify that abuse had in fact occurred, and she did not
identify Defendant as the perpetrator.
Based on these facts, we cannot say, even assuming error,
that the error probably caused the jury to return a different
verdict than it would have absent the alleged error. See
Lawrence, 365 N.C. at 519, 723 S.E.2d at 335. Defendant has
failed to show that any error related to the admission of this
testimony rises to the level of plain error.
II.
In Defendant’s second argument, he contends the trial court
erred by instructing the jury that a witness for the State was a
“fact witness,” thereby improperly expressing an opinion as to
the credibility of the witness’ testimony. We disagree.
“The judge may not express during any stage of the trial,
any opinion in the presence of the jury on any question of fact
to be decided by the jury.” N.C. Gen. Stat. § 15A-1222 (2013).
-13-
Additionally, “[i]n instructing the jury, the judge shall not
express an opinion as to whether or not a fact has been proved
and shall not be required to state, summarize or recapitulate
the evidence, or to explain the application of the law to the
evidence.” N.C. Gen. Stat. § 15A-1232 (2013). “A defendant's
failure to object to alleged expressions of opinion by the trial
court in violation of [N.C.G.S. §§ 15A-1222, 1232] does not
preclude his raising the issue on appeal.” State v. Young, 324
N.C. 489, 494, 380 S.E.2d 94, 97 (1989). “‘In evaluating
whether a judge's comments cross into the realm of impermissible
opinion, a totality of the circumstances test is utilized.’”
State v. Fleming, 350 N.C. 109, 126, 512 S.E.2d 720, 732 (1999)
(citation omitted). “A new trial is not required if,
considering the totality of the circumstances under which [the
instructions] w[ere] made, defendant fails to show prejudice.”
State v. Rushdan, 183 N.C. App. 281, 284, 644 S.E.2d 568, 571
(2007).
Ms. Hurd, a licensed practitioner of “trauma-focused
cognitive behavioral therapy[,]” testified concerning a
“comprehensive trauma assessment[,]” she conducted of the child.
Ms. Hurd also testified about her determination, based on that
assessment, that she could help the child. During Ms. Hurd’s
testimony, the trial court directed the jury to exit the
courtroom. During a bench conference, the trial court noted
-14-
that Ms. Hurd’s testimony was “getting into some worrisome
waters.” After discussing Ms. Hurd’s testimony with both
parties, the trial court decided that, when the jury returned,
it would “clean this [issue] up a little bit.” When the jury
returned to the courtroom, the trial court gave the following
instruction:
Ladies and gentlemen, at the beginning of
the testimony, this witness testified in
part that -- as a part of the protocols at
this place that she was describing, that
they do something called a trauma
assessment. And then if they decide that
they can quote, “help someone,” they will go
forward and do so. Ladies and gentlemen,
that is not meant as a suggestion in any
way, and you are not to receive it, in any
way, as an opinion by this witness about
whether these events occurred or did not
occur.
This witness is not qualified, and she is
not competent to testify as to whether or
not any event, be it in Honduras or here in
Burke County, occurred or did not occur.
That is a question for the jury. And so
you're not to consider that testimony as a
suggestion that this witness is giving you
an opinion about whether or not these events
occurred or did not occur.
. . . .
Secondly, she indicated that, I think
briefly but in passing, that maybe she
observed or didn't observe, I don't remember
behaviors or conduct that may have been or
may not have been consistent with PTSD,
post-traumatic stress disorder. You are to
omit that from your consideration
completely. She's not qualified to give you
that sort of opinion in the courtroom, for
you. And so you're not to consider that
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particular testimony. It is ultimately a
question for the jury as to whether or not
the allegations here occurred or did not
occur, beyond a reasonable doubt or
consistent with whatever instructions I give
you at the close of the case.
But she is what we call a fact witness. As
lawyers, we call her a 701 witness. It
doesn't mean anything to you. But she's a
fact witness, and she's properly here with
us. Clearly, she has some engagements, you
know, with the young man who testified
earlier, and -- sure that both lawyers will
be asking this witness questions. So she
will be testifying about the -- whatever the
interactions she had with him, and everybody
sort of understands the instructions I've
given you so far, just sort of give you
another signal. (Emphasis added).
After closing arguments, the trial court gave, inter alia, the
following instruction:
The law requires the presiding judge to be
impartial. You should not infer from any
statement I have made, any question I may
have asked, or anything else I may have said
or done during the course of the trial, to
suggest to you that any evidence should be
believed or disbelieved, that a fact has
been proved or not proved, or as to what
your findings ought to be. It is your duty
to find the facts and to render a verdict
reflecting the truth.
In this case, it is clear from the evidence that Defendant
has failed to show prejudice. The trial court’s instructions to
the jury, viewed in the totality of the circumstances, did not
express any opinion as to the validity of Ms. Hurd’s testimony.
There is nothing in the evidence to suggest, contrary to
Defendant’s argument, that Ms. Hurd “was some sort of special
-16-
witness” who “would be giving the jury the true facts of what
occurred.” To the contrary, the trial court’s instructions
specifically stated, “you're not to consider that testimony as a
suggestion that this witness is giving you an opinion about
whether or not these events occurred or did not occur.” Even
assuming, arguendo, the trial court erred in referring to Ms.
Hurd as a “fact witness,” Defendant has failed to show
prejudice. This argument is overruled.
III.
In Defendant’s third argument, he contends “the trial court
erred by allowing the State to present evidence of a sexual
encounter unrelated to this case that allegedly occurred between
Defendant and [a witness.]” We disagree.
A male witness (“the witness”) testified that, when he was
seventeen years old, Defendant, who was a family friend and
mentor, had taken advantage of him and had anally penetrated him
after Defendant had given him alcoholic beverages until he had
passed out.
Our Supreme Court has held:
When the trial court has made findings of
fact and conclusions of law to support
its 404(b) ruling, as it did here, we look
to whether the evidence supports the
findings and whether the findings support
the conclusions. We review de novo the
legal conclusion that the evidence is, or is
not, within the coverage of Rule 404(b). We
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then review the trial court's Rule 403
determination for abuse of discretion.
State v. Beckelheimer, 366 N.C. 127, 130, 726 S.E.2d 156, 159
(2012). The trial court found, in determining whether the
evidence would be admissible under N.C. Gen. Stat. § 8C-1, Rule
404(b), the probative value of the witness’s testimony
outweighed its prejudicial effect and was therefore admissible.
Evidence of other crimes, wrongs, or acts is
not admissible to prove the character of a
person in order to show that he acted in
conformity therewith. It may, however, be
admissible for other purposes, such as proof
of motive, opportunity, intent,
preparation, plan, knowledge, identity, or
absence of mistake, entrapment or accident.
N.C.G.S. § 8C-1, Rule 404(b) (2013). Additionally, Rule 404(b)
is “subject to but one exception requiring its exclusion if
its only probative value is to show that the defendant has the
propensity or disposition to commit an offense of the nature of
the crime charged.” State v. Coffey, 326 N.C. 268, 279, 389
S.E.2d 48, 54 (1990).
“It is not required that evidence bear
directly on the question in issue, and
evidence is competent and relevant if it is
one of the circumstances surrounding the
parties, and necessary to be known, to
properly understand their conduct or
motives, or if it reasonably allows the jury
to draw an inference as to a disputed fact.”
State v. Stager, 329 N.C. 278, 302, 406 S.E.2d 876, 890 (1991)
(citations omitted). “The admissibility of evidence under Rule
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404(b) is further constrained by the requirements of similarity
and temporal proximity.” State v. Parker, __ N.C. App. __, __,
756 S.E.2d 122, 126 (2014).
Specifically, Defendant contends the witness’ testimony was
inadmissible “because it was dissimilar from the crimes for
which Defendant was on trial and because any slight probative
value was substantially outweighed by the danger of unfair
prejudice.” We disagree.
The trial court found the witness and the child to be of
“similar age,” a finding supported by the evidence: the witness
was seventeen years of age and the child was fourteen years of
age. In addition, the trial court found “similar circumstances
with the [the witness’ and the minor’s] families,” a finding
supported by the evidence in that Defendant maintained
relationships with both the child’s and the witness’ families.
The trial court also found “alignment . . . in terms of anal
intercourse,” a finding supported by the evidence that Defendant
allegedly had anal intercourse multiple times with the child and
at one time had anal intercourse with the witness. Lastly, the
trial court found “alignment with [Defendant’s] counselor or
mentor role[]” to the witness and the child, a finding supported
by the evidence, where the child referred to Defendant as a
father figure, and the witness saw Defendant as a counselor and
mentor. We hold that the trial court did not err in concluding
-19-
that the witness’ 404(b) testimony is similar to the alleged
crime, “in terms of showing a pattern and practice, [and] in
terms of showing opportunities to take advantage of
circumstances and individuals[.]”
Because we determined the witness’ testimony is
sufficiently similar to the alleged crime, and Defendant does
not dispute the temporal proximity, “we now review the trial
court’s Rule 403 determination for abuse of discretion.”
Beckelheimer, 366 N.C. at 133, 726 S.E.2d at 160.
“Here ‘a review of the record reveals that the trial court
was aware of the potential danger of unfair prejudice to
defendant and was careful to give a proper limiting instruction
to the jury.’” Id. (quoting State v. Hipps, 348 N.C. 377, 406,
501 S.E.2d 625, 642 (1998)). The trial court first heard the
witness’ testimony during voir dire, outside the presence of the
jury. The trial court determined the witness’ testimony was
clearly probative, and had taken the “danger of undue prejudice
. . . into account.” Additionally, the trial court gave a
limiting instruction to the jury.
Given the similarities between the accounts
of the victim and the 404(b) witness and the
trial judge's careful handling of the
process, we conclude that it was not an
abuse of discretion for the trial court to
determine that the danger of unfair
prejudice did not substantially outweigh the
probative value of the evidence.
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Beckelheimer, 366 N.C. at 133, 726 S.E.2d at 161. This argument
is without merit.
IV.
In Defendant’s fourth argument, he contends the trial court
committed plain error “by allowing the State to present
inadmissible victim impact and opinion evidence[.]” We
disagree.
When the child was asked why the State had asked the
child’s mother to leave the courtroom during his testimony, the
child responded that he was uncomfortable discussing what
Defendant had done to him in front of his mother. The child
also testified that, after Ms. Hurd told the child’s mother what
had happened, the child’s mother “went in[to] depression[,]” and
“takes medicine for it.”
Because Defendant did not preserve this issue for our
review, we will conduct our review under the plain error
standard. Our Supreme Court has held that, in order to show
prejudice sufficient to establish plain error, a defendant has
to show “that, absent the error, the jury probably would have
returned a different verdict.” Lawrence, 365 N.C. at 519, 723
S.E.2d at 335.
Specifically, Defendant contends “evidence of the impact of
the alleged crimes on [the child]’s mother was clearly
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inadmissible during the guilt phase of Defendant’s trial,
[because] it was not relevant to Defendant’s guilt.” In
addition, Defendant argues “[t]he evidence was also inadmissible
because it comprised an opinion that [the child’s mother]
believed [the child]’s allegations were credible.”
Assuming, arguendo, the trial court erred by admitting the
challenged testimony, Defendant fails to show “that, absent the
error, the jury probably would have returned a different
verdict.” Id.
Simply put, in view of the relatively
incidental nature of the challenged
statement and the fact that most jurors are
likely to assume that a mother will believe
accusations of sexual abuse made by her own
child[], we cannot conclude that the
challenged portion of [the child]'s
testimony had any significant impact on the
jury's decision to convict Defendant.
State v. Dew, __ N.C. __, __, 738 S.E.2d 215, 219 (2013), disc.
review denied, __ N.C. __, 743 S.E.2d 187 (2013). Because
Defendant has failed to show prejudice sufficient to establish
plain error, this argument is overruled.
V.
In Defendant’s final argument, he contends the trial court
erred by failing to find as a mitigating factor that “Defendant
had a positive employment history or was gainfully employed.”
We disagree.
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“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.” State v. Kemp, 153 N.C. App. 231, 241, 569
S.E.2d 717, 723 (2002) (internal quotation marks and citations
omitted). However, our Court has held, “a defendant may,
pursuant to N.C. Gen. Stat. § 15A-1444(a1), appeal the issue of
the sufficiency of the evidence to support his or her sentence
even though he or she was sentenced in the mitigated range.”
State v. Mabry, __ N.C. App. __, __, 720 S.E.2d 697, 702 (2011).
During sentencing, “[a] trial judge is given wide latitude
in determining the existence of . . . mitigating factors[.]”
State v. Norman, 151 N.C. App. 100, 105-106, 564 S.E.2d 630, 634
(2002) (quotation marks and citations omitted). In order for
Defendant to demonstrate a positive employment history or
gainful employment as a mitigating factor, Defendant must
present specific details. Mabry, ___ N.C. App. at ___, 720
S.E.2d at 704. “An 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.’” Id. __ N.C. App. at __, 720 S.E.2d at
702 (citation omitted).
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Specifically, Defendant argues “all of the evidence showed
that Defendant had a positive employment history and was
gainfully employed until the time of his arrest.” We disagree.
At trial, the testimony tended to show that Defendant came
from New Orleans to work at “Aqua Spring” in Morganton, and
Defendant sent money to Honduras to support his child.
Nevertheless,
the [Defendant’s] employment history
testimony does not necessarily establish
continuous employment, the numbers of hours
[D]efendant was working, or what []he was
paid. Given the lack of details regarding
[D]efendant's employment history or the
quality of h[is] performance, we cannot
conclude that the trial court was required
to find either that [D]efendant had a
positive employment history or that []he was
gainfully employed within the meaning
of N.C.G.S. § 15A-1340.16(e)(19).
Mabry, __ N.C. App. at __, 720 S.E.2d at 704. This argument is
without merit.
No error.
Judges ELMORE and DAVIS concur.
Report per Rule 30(e).