An unpublished opinion of the North Carolina Court of Appeals does not constitute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).
