               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA 15-1352

                                Filed: 2 August 2016

Pasquotank County, No. 13-CRS-050004

STATE OF NORTH CAROLINA

              v.

GYRELL SHAVONTA LEE


        Appeal by Defendant from judgment dated 12 July 2015 by Judge J. Carlton

Cole in Superior Court, Pasquotank County. Heard in the Court of Appeals 6 June

2016.


        Attorney General Roy Cooper, by Special Deputy Attorney General Kimberly D.
        Potter, for the State.

        Appellate Defender Glenn Gerding, by Assistant Appellate Defender Paul M.
        Green, for Defendant.


        McGEE, Chief Judge.


        Gyrell Shavonta Lee (“Defendant”) appeals his conviction for second-degree

murder. Defendant contends that the trial court erred by: (1) omitting a no duty to

retreat instruction from its jury instructions; (2) instructing the jury it could find

Defendant was the initial aggressor despite a lack of evidence to support that theory;

(3) not instructing the jury on the lawful defense of a third person; (4) excluding a

non-hearsay statement made by Defendant; (5) violating a statutory mandate by

requiring the jury to deliberate for an unreasonable length of time; and (6) not
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                                   Opinion of the Court



considering evidence of aggravating or mitigating factors in sentencing Defendant as

mandated by statute. We find no error.

                                      I. Background

      Defendant celebrated New Year’s Eve on 31 December 2012 in Elizabeth City,

where Defendant lived with his brother. Shortly after midnight, Defendant exited a

home across the street from his residence and encountered several individuals,

including Quinton Epps (“Epps”) and Defendant’s cousin, Jamieal Walker (“Walker”),

congregated around a blue 1993 Grand Marquis automobile. Epps and Walker were

engaged in a heated verbal dispute.        Walker seemed “very agitated” and told

Defendant that Epps “felt verbally disrespected.” Epps left in the Grand Marquis,

and Defendant went inside his residence.

      About twenty minutes later, a black Cadillac STS vehicle (“the Cadillac”)

approached Defendant’s residence. Defendant and Walker were standing “beside the

house . . . in the front yard.” Defendant saw Epps get out of the Cadillac’s back

passenger side. Walker and Epps began arguing, and Defendant observed that Epps

was “verbally disrespectful [and] verbally aggressive.”     Epps got back into the

Cadillac and it sped away.

      Approximately twenty minutes later, a burgundy Mitsubishi Galant (“the

Mitsubishi”) drove up alongside Defendant’s backyard, stopping briefly. Defendant

retrieved a .45 caliber handgun from his car and concealed it on his person, “[out of]


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instinct,” although Defendant believed “Epps . . . wasn’t a threat at th[at] time.” The

Mitsubishi pulled off, circled the block, and parked two or three houses down from

Defendant’s residence in front of a cemetery across the street, at the intersection of

Shepard Street and Herrington Road. Epps and several other individuals exited the

Mitsubishi.

      Defendant and Walker walked down the street to talk to Epps. Epps and

Walker began arguing.     Defendant saw Epps had a gun behind his back.            The

argument escalated, and Walker punched Epps in the face. After being punched,

Epps leaned back, grabbed the hood of Walker’s jacket, and shot Walker in the

stomach. When Epps shot Walker a second time, Defendant withdrew his handgun.

Walker was able to get up, and Epps continued shooting at Walker as he attempted

to flee. After Epps fired a final shot at Walker, Epps turned and pointed his gun at

Defendant. Before Epps could fire, Defendant shot Epps several times. Epps died as

a result of a gunshot wound to his torso inflicted by Defendant.

      Police Chief Eddie Buffaloe (“Chief Buffaloe”) and other officers from the

Elizabeth City Police Department (“ECPD”) arrived at the scene of the shooting at

approximately 2:30 a.m., after noticing a crowd gathered at the intersection of

Shepard Street and Herrington Road. Chief Buffaloe observed an individual, later

identified as Epps, lying in the road with apparent gunshot wounds. After Epps was

transported from the scene, ECPD K-9 Officer David Sutton performed a search of


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the area and discovered Defendant’s .45 caliber handgun, its magazine empty,

beneath a trash can located behind Defendant’s residence.

      ECPD Crime Scene Investigator Leroy Owen (“Investigator Owen”) was also

called to the scene.   Investigator Owen did a walk-through, marking potential

evidence and taking photographs. Among other things, Investigator Owen collected

a spent, bloodied bullet from the spot where Epps had been lying on the ground; five

9 millimeter shell casings; and eight .45 caliber shell casings. Investigator Owen

noticed a “divot” in the ground where he found the spent bullet. Subsequent ballistics

testing matched the spent bullet, the .45 caliber bullet casings, and the bullets

removed from Epps’s body during an autopsy, with Defendant’s handgun. Walker’s

body was discovered several hours later approximately 120 yards from where Epps’s

body was found. Defendant was indicted for first-degree murder on 7 January 2013.

      At trial, the State’s sole eyewitness, Quentin Jackson (“Jackson”), testified

that, shortly after leaving work at 2:00 a.m. on 1 January 2013, he drove up to a

stoplight on Shepard Street and saw Epps and Walker running nearby and then

simultaneously fall to the ground. Jackson testified he saw “one guy reach over on

the guy that was falling and shoot [him], and then . . . one get up and run and one

continuously get shot.” According to Jackson, Walker was able to run away and Epps

remained on the ground, at which point Defendant “came out of nowhere,” stood over

Epps, and began repeatedly shooting Epps at close range. Jackson also testified that


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another unidentified individual was shooting at Defendant, but that Epps never

aimed at, or shot, Defendant.

         ECPD Officer Joseph Felton (“Officer Felton”) interviewed Jackson at the

scene on the night of the shooting, and Jackson described seeing “five black guys run

up to the victim and shoot[] him point blank.” When asked by Officer Felton to

describe the shooter, Jackson said it was “a big dude with long dreads wearing an

orange sweater” who had taken off running after the shooting. Defendant did not

have dreadlocks at the time of the shooting. Jackson later denied ever having given

this account. Defendant maintained that he shot Epps only after Epps pointed a gun

at Defendant, and Defendant denied continuing to shoot after seeing Epps fall to the

ground. Defendant was found guilty of second-degree murder and sentenced to a

term of 192 to 243 months’ imprisonment. Defendant appeals.

                  II. Omission of No Duty to Retreat Jury Instruction

                                 A. Standard of Review

         Defendant first argues the trial court erroneously omitted a no duty to retreat

instruction from its jury instructions. The “[d]efendant did not object to the . . .

instruction given by the trial court, and our review is therefore limited to plain error.”

State v. Withers, 179 N.C. App. 249, 257, 633 S.E.2d 863, 868 (2006). To show plain

error,

               a defendant must demonstrate that a fundamental error


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              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.

State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (citing State v.

Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)) (internal quotation marks

omitted). We apply plain error “cautiously and only in the exceptional case.” Id.

       Defendant cites Withers for the proposition that “[a]lthough there was no

objection, the omission of part of [the pattern instruction] is preserved for de novo

review because the trial court stated it would instruct according to the pattern.”

Defendant misapplies Withers. The portion of that opinion Defendant relies upon

addressed the trial court’s failure to “instruct [the jury] on not guilty by reason of self-

defense as a possible verdict in its final mandate to the jury.” 179 N.C. App. at 255,

633 S.E.2d at 867 (emphasis added). In the present case, the trial court properly

instructed the jury that “if the State has failed to satisfy you beyond a reasonable

doubt that the defendant did not act in self-defense, . . . it will be your duty to return

a verdict of not guilty.” The Withers defendant also alleged the trial court erred by

failing to instruct the jury, as part of its self-defense instruction, that the defendant

did not have a duty to retreat. Id., 179 N.C. App. at 256, 633 S.E.2d at 868. On that

issue, this Court concluded that because the defendant did not object to the self-

defense instruction, review was limited to plain error. See also State v. Davis, 177



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N.C. App. 98, 102, 627 S.E.2d 474, 477 (2006) (holding that “[s]ince defendant neither

requested the [no duty to retreat] instruction nor objected to the court’s failure to give

the instruction, we review the assignment of error under the plain error standard.”).

      More recently, in State v. Eaton, ___ N.C. App. ___, 781 S.E.2d 532, 2016 WL

47973 (2016) (unpublished), this Court rejected a similar argument, i.e., that an

instructional issue was preserved despite the defendant’s lack of objection because

the trial court indicated it would give a specific pattern instruction and then omitted

a portion of the pattern instruction from its instructions to the jury. In the present

case, as in Eaton,

             the trial court did not merely indicate that it would instruct
             pursuant to [the pattern instruction] and then fail to
             instruct as indicated, as [D]efendant insinuates. . . . The
             trial court . . . repeated the instructions it intended to offer.
             The trial court never indicated it would give the portion of
             [the pattern instruction] which [D]efendant now contends
             was erroneously omitted and [D]efendant did not take
             issue with the proposed instruction. . . . [T]he trial court
             instructed the jury precisely as proposed, [and] . . . the trial
             court’s reference to the pattern instruction did not preserve
             the issue for appeal absent an objection by defendant.

Id., 2016 WL 47973 at *11.

                                          B. Analysis

      Defendant contends the omission of a no duty to retreat instruction amounted

to plain error because, if the jury had been instructed on the right to stand one’s




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ground in a place where one has a lawful right to be, Defendant “probably would not

have been convicted of second-degree murder.” We disagree.

       “[W]here supported by the evidence in a claim of self-defense, an instruction

negating [a] defendant’s duty to retreat in his home or premises must be given even

in the absence of a request by [the] defendant.” State v. Morgan, 315 N.C. 626, 643,

340 S.E.2d 84, 95 (1986) (emphasis in original); see also Davis, 177 N.C. App. at 102,

627 S.E.2d at 477 (finding that “[a] comprehensive self-defense instruction requires

instructions that a defendant is under no duty to retreat if the facts warrant it[.]”

(emphasis added)). “When determining whether the evidence is sufficient to entitle

a defendant to jury instructions on a defense or mitigating factor, courts must

consider the evidence in the light most favorable to [the] defendant.” Withers, 179

N.C. App. at 257, 633 S.E.2d at 868 (quoting State v. Mash, 323 N.C. 339, 348, 372

S.E.2d 532, 537 (1988) (alteration in original)).

       The trial court in this case instructed the jury, pursuant to N.C.P.I.—Crim.

206.101 and as agreed upon by the parties, that Defendant “would be not guilty of any

murder or manslaughter if [he] acted in self-defense and . . . was not the aggressor in

provoking the fight and did not use excessive force under the circumstances.” The

court omitted the following sentence found in N.C.P.I.—Crim. 206.10: “Furthermore,



       1 N.C.P.I.—Crim. 206.10 (2014) is the pattern instruction for “First degree murder where a
deadly weapon is used, covering all lesser included homicide offenses and self-defense.”

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the defendant has no duty to retreat in a place where the defendant has a lawful right

to be.” That sentence in the pattern instructions includes the following footnote: “See

N.C.P.I.—Crim. 308.10.”2 In turn, N.C.P.I.—Crim. 308.10, the pattern instruction

for self-defense where retreat is at issue, “is to be used if the evidence shows that the

defendant was at a place where the defendant had a lawful right to be . . . when the

assault on the defendant occurred” and that the defendant was not the aggressor.

(emphases added). Defendant argues that, having undertaken to instruct the jury

according to N.C.P.I.—Crim. 206.10, the trial court erroneously omitted the disputed

sentence of the pattern instruction, and was further required to read N.C.P.I.—Crim.

308.10 in its entirety. These arguments are without merit.

       Both the omitted sentence from N.C.P.I.—Crim. 206.10, and N.C.P.I.—Crim.

308.10 generally, refer specifically to “a place where the defendant has a lawful right

to be.” See also N.C. Gen. Stat. § 14-51.2(f) (2015) (“A lawful occupant within his or

her home, motor vehicle, or workplace does not have a duty to retreat from an intruder

in the circumstances described in this section.” (emphasis added)); N.C. Gen. Stat. §

14-51.3(a) (2015) (“[A] person is justified in the use of deadly force and does not have

a duty to retreat in any place he or she has the lawful right to be if either of the

following applies . . . .” (emphasis added)). Thus, Defendant’s argument, that a


       2   We note that a previous version of the footnote read, “Where the evidence raises the issue of
retreat, see alternative paragraph set forth in N.C.P.I.—Crim. 308.10.” (emphasis added). See Morgan,
315 N.C. at 643, 340 S.E.2d at 94-95.

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different verdict probably would have been reached but for the omission of a no duty

to retreat jury instruction, presumes Defendant was in a place where he had a lawful

right to be when he shot Epps—i.e., Defendant’s “home or premises.” See, e.g., State

v. Beal, 181 N.C. App. 100, 102, 638 S.E.2d 541, 543 (2007) (observing that in order

to “determine whether the evidence presented supported defendant’s proposed

instruction that he had no duty to retreat[,] . . . [we must] first define the law of self-

defense by a person in his own home.” (emphasis added)); Withers, 179 N.C. App. at

259, 633 S.E.2d at 870 (finding trial court erred by failing to instruct the jury on duty

to retreat where, in light of the facts in evidence, “the jury could have found that

defendant . . . was attacked in his home or on his premises.” (emphasis added)).

      Defendant contends he “was where he had a right to be—the street by his

home—when he was confronted by Epps, who had a pistol in his hand and had just

fatally wounded [Walker].” However, the right to stand one’s ground is more limited

than Defendant suggests. Our Supreme Court has stressed that “where the person

attacked is not in his own dwelling, home, place of business, or on his own premises,

then the degree of force he may employ in self-defense is conditioned by the type of

force used by his assailant.” State v. Pearson, 288 N.C. 34, 43, 215 S.E.2d 598, 605

(1975) (emphasis added). Compare with State v. Johnson, 261 N.C. 727, 729–30, 136

S.E.2d 84, 86 (1964) (holding that “when a person . . . is attacked in his own home or

on his own premises, the law imposes on him no duty to retreat before he can justify


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his fighting in self defense [sic], regardless of the character of the assault, but is

entitled to stand his ground, to repel force with force, and to increase his force, so as

not only to resist, but also to overcome the assault and secure himself from all harm.”

(emphasis added)). The no duty to retreat defense is also limited by statute to “[a]

lawful occupant within his or her home, motor vehicle, or workplace[.]” N.C.G.S. § 14-

51.2(f) (emphasis added). “Home” is defined as

             [a] building or conveyance of any kind, to include its
             curtilage, whether the building or conveyance is temporary
             or permanent, mobile or immobile, which has a roof over it,
             including a tent, and is designed as a temporary or
             permanent residence.

N.C. Gen. Stat. § 14-51.2(a)(1) (2015). See also State v. Rhodes, 151 N.C. App. 208,

214, 565 S.E.2d 266, 270 (2002) (quoting State v. Frizzelle, 243 N.C. 49, 51, 89 S.E.2d

725, 726 (1955)) (noting that “[i]n North Carolina, ‘curtilage of the home will

ordinarily be construed to include at least the yard around the dwelling house as well

as the area occupied by barns, cribs, and other outbuildings.’”); and see State v.

Williams, ___ N.C. App. ___, ___, 784 S.E.2d 232, 234 (2016) (concluding that “the

term ‘property’ [as used in statute addressing violations of domestic violence

protective orders] is not limited to buildings or other structures affixed to land but

also encompasses the land itself.”).

      In Withers, this Court concluded that the trial court’s failure to instruct the

jury that the defendant had no duty to retreat, and could stand his ground if he was


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not the aggressor in the confrontation with the victim, amounted to plain error

entitling the defendant to a new trial. 179 N.C. App. at 260, 633 S.E.2d at 870

(internal quotation marks and citation omitted). Withers is factually distinguishable

from the present case. The evidence in Withers showed the victim had been asked,

and refused, to leave the defendant’s home multiple times; the victim sold drugs

inside the defendant’s home against the defendant’s wishes and verbally threatened

the defendant from within the defendant’s home; and that the defendant shot the

victim while standing in the defendant’s own doorway and while the victim was in

the defendant’s yard.

      In this case, by contrast, there was no evidence that Epps ever entered

Defendant’s home or yard.      It is undisputed that when Defendant shot Epps,

Defendant was standing in the intersection of a public street several houses down

from his residence, not his home or curtilage. Accordingly, even considered in the

light most favorable to Defendant, the evidence did not support a no duty to retreat

instruction as part of the trial court’s instruction on self-defense, and Defendant was

not prejudiced by its omission. Cf. State v. Everett, 163 N.C. App. 95, 102, 592 S.E.2d

582, 587 (2004) (concluding defendant was entitled to a no duty to retreat instruction

where “[t]he evidence . . . [was] legally sufficient to support a conclusion that

defendant was attacked by her husband in her own home[.]”)

                             III. “Aggressor” Jury Instruction


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                                    A. Standard of Review

      Defendant next challenges the trial court’s instruction to the jury that

“[D]efendant [was] not entitled to the benefit of self-defense if . . . [D]efendant was

the aggressor with the intent to kill or inflict serious bodily injury upon the deceased.”

Because Defendant failed to raise this objection below, we review for plain error.

                                            B. Analysis

      Defendant contends the trial court erroneously instructed the jury that it could

find Defendant was the aggressor because, Defendant argues, there was no evidence

to support such a finding. Specifically, Defendant challenges the following portion of

the trial court’s aggressor instructions:

                    One enters a fight voluntarily if one uses towards
             one's opponent abusive language which, considering all of
             the circumstances, is calculated and intended to provoke a
             fight. If the defendant voluntarily and without provocation
             entered a fight the defendant would be considered the
             aggressor unless the defendant thereafter attempted to
             abandon the fight and gave notice to the deceased that the
             defendant was doing so.

                     In other words, a person who uses defensive force is
             justified if the person withdraws in good faith from
             physical contact with the person who was provoked and
             indicates clearly that he intends to withdraw and
             terminate the use of force but the person who was provoked
             continues or resumes the use of force. A person is also
             justified in using defensive force when the force used by the
             person who was provoked is so serious that the person
             using the defensive force reasonably believes that he was
             in imminent danger of death or serious bodily harm. The


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              person using defensive force had no reasonable means to
              retreat and the use of force likely caused the -- [sic] and
              the use of force likely to cause death or serious bodily harm
              was the only way to escape danger.

                      The defendant is not entitled to the benefit of self-
              defense if the defendant was the aggressor with the intent
              to kill or inflict serious bodily injury upon the deceased.

According to Defendant, his actions of “arming [himself] in anticipation of a possible

conflict then declining to withdraw from a place [he had] a right to be” (1) were the

only possible bases for a finding that he was the aggressor in his confrontation with

Epps, and (2) did not constitute “any evidence that [Defendant] was the aggressor

within the law of self-defense.” (emphasis in original)). We disagree, based on our

conclusion that there was other evidence from which a reasonable jury could find

Defendant acted as the aggressor. See State v. Effler, 207 N.C. App. 91, 97-98, 698

S.E.2d 547, 551-52 (2010) (concluding aggressor instruction was not plain error where

sufficient evidence was presented for a reasonable jury to conclude defendant was the

aggressor).

      “Broadly speaking, [a] defendant can be considered the aggressor when [the

defendant] ‘aggressively and willingly enters into a fight without legal excuse or

provocation.’” State v. Vaughn, 227 N.C. App. 198, 202, 742 S.E.2d 276, 279 (2013)

(quoting State v. Wynn, 278 N.C. 513, 519, 180 S.E.2d 135, 139 (1971)). Here, there

was no evidence that, prior to the fatal shootings, Defendant was directly provoked



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by Epps.       At most, Defendant testified, Epps was generally “verbally . . .

disrespectful.” (T p. 595) See State v. Mize, 316 N.C. 48, 54, 340 S.E.2d 439, 443

(1986) (holding defendant was not entitled to a jury instruction on self-defense in part

because, “although defendant heard indirectly of threats from the victim, the latter

had neither assaulted nor threatened [defendant] directly.”).

       Defendant conceded that when Defendant armed himself with a gun, Epps

“wasn’t a threat at the time.” Defendant voluntarily accompanied Walker down the

street to confront Epps. Defendant did not retreat3 despite immediately noticing that

Epps had a gun, observing an escalating confrontation between Epps and Walker,

and witnessing Epps shoot Walker. Defendant testified he “withdrew” his gun while

Epps was still shooting Walker. Defendant also testified that “right after [Epps] shot

[Walker], [Epps] looked at me and pointed [his] gun and [then] I shot him.” Thus, it

was unclear from Defendant’s testimony whether Defendant was already aiming his

gun at Epps when Epps pointed a gun at Defendant. Further, the State’s witness,

Quentin Jackson, testified that he observed Defendant “[come] out of nowhere” and

shoot Epps while Epps was on the ground and before Epps ever had an opportunity

to aim a gun at Defendant. See State v. Locklear, 165 N.C. App. 905, 602 S.E.2d 728,

2004 WL 1824322 at *3 (2004) (unpublished) (noting that “[i]t is a well established



       3  As discussed in Part II of this opinion, Defendant was not entitled to a no duty to retreat
instruction, because he was not within his home or curtilage when he fatally shot Epps.

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[sic] rule in this State that a jury is the sole judge of a witness’ credibility, and it may

believe some, all, or none of what a witness says.”).

       “When there is conflicting evidence as to which party was the aggressor, the

jury, as the finders of fact, are [sic] entitled to determine which of the parties, if either,

is the aggressor.” State v. Norris, ___ N.C. App. ___, 768 S.E.2d 650, 2015 WL 67197

at *3 (2015) (unpublished) (citing State v. Cannon, 341 N.C. 79, 82-83, 459 S.E.2d

238, 241 (1995)); see also State v. Brewer, 328 N.C. 515, 522, 402 S.E.2d 380, 385

(1991) (noting that “[c]ontradictions in the evidence are for the jury to decide.”).

       In cases cited by Defendant, “‘[t]here [was] no conflict in evidence as to which

of the parties was the aggressor. [The d]efendant did not start the fight.’” Vaughn,

227 N.C. App. at 202, 742 S.E.2d at 279 (quoting State v. Tann, 57 N.C. App. 527,

530, 291 S.E.2d 824, 827 (1982) (alterations in original)). See also State v. Temples,

74 N.C. App. 106, 109, 327 S.E.2d 266, 268 (1985); State v. Ward, 26 N.C. App. 159,

163, 215 S.E.2d 394, 396-97 (1975). In the present case, by contrast, there was

conflicting evidence about the sequence of events culminating in Epps’s death, and

the extent of Defendant’s role in precipitating the shooting. Accordingly, the trial

court’s aggressor instructions were not plain error.

                  IV. Jury Instruction on Lawful Defense of a Third Person

                                     A. Standard of Review




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      Defendant next contends the trial court erred by omitting a jury instruction on

lawful defense of another.      Because Defendant failed to request such a jury

instruction, we review for plain error.

                                          B. Analysis

             In general one may kill in defense of another if one
             [reasonably] believes it to be necessary to prevent death or
             great bodily harm to the other . . . to be judged by the jury
             in light of the facts and circumstances as they appeared to
             the defender at the time of the killing.

State v. Perry, 338 N.C. 457, 466, 450 S.E.2d 471, 476 (1994) (quoting State v.

Terry, 337 N.C. 615, 623, 447 S.E.2d 720, 724 (1994)). However,

             [i]f there is no evidence from which a jury reasonably could
             find that the defendant in fact believed that it was
             necessary to kill to protect another from death or great
             bodily harm, the defendant is not entitled to have the jury
             instructed on either perfect or imperfect defense of another.

Id., 338 N.C. at 467, 450 S.E.2d at 477; see also State v. McKoy, 332 N.C. 639, 644,

422 S.E.2d 713, 716 (1992) (stating that “[i]n order to have either perfect or imperfect

self-defense, the evidence must show that it appeared to defendant and he believed it

to be necessary to kill the deceased in order to save himself or another from death or

great bodily harm. It must also appear that the defendant's belief was reasonable in

that the circumstances as they appeared to him at the time were sufficient to create

such a belief in the mind of a person of ordinary firmness.”).




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      Defendant’s testimony and other custodial statements established that Epps

was no longer shooting at Walker when Defendant shot Epps, and Walker was

already fatally wounded. Defendant testified that “[a]s soon as [Epps] got done

shooting Walker[,] [Epps] looked at me and he drew his gun and I shot him.”

Defendant later told police he “was scared, and [Epps] pointed that gun [at me]. He

had already shot my cousin, and then he was trying to shoot me.” Defendant also

said he “didn’t have a clear shot” until Epps “fired at [Walker] one last time” and

Walker “snatched away.” In telephone conversations from jail, Defendant indicated

he shot Epps in his own defense, not to protect Walker from death or great bodily

harm, and “to make sure [Epps] couldn’t shoot [any]body else.” Notwithstanding

Defendant’s contention that he “drew” his gun while Epps was still shooting Walker,

Defendant’s claim that he shot Epps in Walker’s defense fails as a matter of law

because when Defendant actually shot Epps, Defendant was aware that the threat of

harm to Walker had concluded.

      The cases Defendant cites, in which defendants were entitled to defense of

another instructions, are unavailing. In each of those cases, the defendant committed

the defensive act(s) when the perceived harm to another was either imminent or in

progress. See, e.g., State v. Moore, 363 N.C. 793, 797-98, 688 S.E.2d 447, 450 (2010);

State v. Jones, 299 N.C. 103, 105-06, 261 S.E.2d 1, 4 (1980); State v. Hornbuckle, 265

N.C. 312, 313-14, 144 S.E.2d 12, 13 (1965); State v. Clark, 134 N.C. 698, 47 S.E. 36,


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37 (1904), overruled on other grounds by State v. Phillips, 264 N.C. 508, 142 S.E.2d

337 (1965); State v. Patterson, 50 N.C. App. 280, 282-83, 272 S.E.2d 924, 925-26

(1981); State v. Graves, 18 N.C. App. 177, 178-80, 196 S.E.2d 582, 583-85 (1973). See

also State v. Norman, 324 N.C. 253, 261, 378 S.E.2d 8, 13 (1989) (observing that our

Supreme Court “ha[s] sometimes used the phrase ‘about to suffer’ interchangeably

with ‘imminent’ to describe the immediacy of the threat that is required to justify

killing in self-defense.” (citing State v. Holland, 193 N.C. 713, 718, 138 S.E. 8, 10

(1927))).

       Further, evidence that “[e]verybody [was] running, ducking and screaming and

scared” (Def. br. at 28) did not entitle Defendant to an instruction on defense of

another (or others). See State v. Ramseur, 226 N.C. App. 363, 376, 739 S.E.2d 599,

607-08 (2013) (concluding evidence that a group of individuals had been “afraid” and

subjected to verbal threats by the deceased was insufficient to “support a reasonable

belief by [the] [d]efendant that . . . the people . . . were in imminent danger of death

or great bodily harm unless [the] [d]efendant fired on [the deceased].” (emphasis in

original)).

       In sum, the evidence failed to demonstrate that Defendant shot Epps “to

prevent death or great bodily harm” to Walker, and did not support a reasonable

belief by Defendant that it was necessary to shoot Epps to prevent imminent death




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                                    Opinion of the Court



or harm to others. Accordingly, Defendant was not prejudiced by the omission of a

jury instruction on defense of others.

                            V. Exclusion of Witness Testimony

      Defendant next argues the trial court erroneously excluded a statement made

on the witness stand by Defendant’s uncle, Charles Bowser (“Bowser”).

                                   A. Standard of Review

      Our Supreme Court has held that

             [i]n order for a party to preserve for appellate review
             the exclusion of evidence, the significance of the excluded
             evidence must be made to appear in the record and a
             specific offer of proof is required unless the significance of
             the evidence is obvious from the record. . . . [Additionally,]
             the essential content or substance of the witness’ testimony
             must be shown before we can ascertain whether prejudicial
             error occurred.

State v. Jacobs, 363 N.C. 815, 818, 689 S.E.2d 859, 861 (2010) (quoting State v.

Raines, 362 N.C. 1, 20, 653 S.E.2d 126, 138 (2007)).

      When Bowser was asked to recount Epps’s and Walker’s second confrontation

on the night they were killed, Bowser testified he overheard Defendant say to Epps

and Walker, “[W]ell, why can’t you-all just get along?” The State’s objection to this

statement was sustained.      Defense counsel made no attempt to establish the

significance or admissibility of the excluded statement, “or request that the witness




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                                        Opinion of the Court



be allowed to answer outside the presence of the jury.”4 Id., 363 N.C. at 819, 689

S.E.2d at 862. Thus, Defendant failed to preserve this argument for appellate review.

See, e.g., Raines, 362 N.C. at 20, 653 S.E.2d at 138 (concluding exclusion of evidence

was not preserved for appellate review where “the trial court sustained the

prosecution’s objection [and] [d]efense counsel then proceeded to other questions

without making an offer of proof or requesting that the witness be allowed to answer

outside the presence of the jury.”); N.C. R. App. P. 10(a)(1) (2015) (providing that “[i]n

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 the

ruling the party desired the court to make if . . . not apparent from the context.”).

Further, even if reviewable, “‘the failure of a trial court to admit or exclude . . .

evidence will not result in the granting of a new trial absent a showing by defendant

that a reasonable possibility exists that a different result would have been reached

absent the error.’” State v. Hernandez, 202 N.C. App. 359, 363, 688 S.E.2d 522, 525

(2010) (quoting State v. Weeks, 322 N.C. 152, 170, 367 S.E.2d 895, 906 (1988)).

                                             B. Analysis

       Defendant contends the excluded testimony was “the only evidence of the

actual words spoken by [Defendant] that night [of the shootings]” and showed


       4  By contrast, when the State objected to a similar line of questioning during the direct
examination of defense witness Michael Gregory, defense counsel did request a voir dire hearing
outside the presence of the jury.

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Defendant was “trying to calm the hostilities, not [acting as] an aggressor.”

Excluding Bowser’s statement, Defendant argues, was prejudicial            because it

permitted the jury “to convict [him] on the theory that he was the aggressor[.]” We

disagree.

      As discussed in Section III, there was independent evidence upon which the

jury could have based a finding that Defendant acted as an aggressor in the moments

before shooting Epps. See, e.g., State v. Cook, ___ N.C. App. ___, ___, 782 S.E.2d 569,

579 (2016) (citing N.C. Gen. Stat. §15A-1443(a) (2013)) (finding defendant failed to

show prejudicial error from admission of alleged hearsay, where “the State proffered

overwhelming evidence supporting defendant’s conviction[.]”); State v. Bass, 190 N.C.

App. 339, 348, 660 S.E.2d 123, 129 (2008) (concluding admission of alleged hearsay

did not prejudice defendant where other witness testimony established the fact for

which it was offered). Additionally, Defendant testified on his own behalf and was

permitted to describe to the jury his efforts to “calm the hostilities” between Walker

and Epps, including that Defendant “tried to eradicate the verbal disagreement . . .

[between them].”    Defendant has not demonstrated he was prejudiced by the

exclusion of Bowser’s testimony.

                             VI. Length of Jury Deliberations

                                   A. Standard of Review




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      Defendant next argues the trial court committed plain error by requiring the

jury to deliberate for an unreasonable length of time in violation of N.C. Gen. Stat. §

15A-1235(c), which sets forth procedures a trial court may follow at its discretion in

the event of jury deadlock. Our Supreme Court has explicitly characterized N.C.G.S.

§ 15A-1235(c) as “permissive” rather than mandatory, see State v. May, 368 N.C. 112,

119, 772 S.E.2d 458, 463 (2015), and held that “when a trial court is alleged to have

violated a permissive statute, we review for plain error if the issue has not been

preserved.” Id. (citing State v. Aikens, 342 N.C. 567, 577-78, 467 S.E.2d 99, 106

(1996)). Defendant did not object to the trial court’s jury instructions, comments to

the jury, or the length of jury deliberations.    This argument was therefore not

properly preserved. See N.C.R. App. P. 10(b)(1) (2015). Accordingly, our review is

limited to plain error.

      We further note that “plain error analysis applies only to jury instructions and

evidentiary matters[.]” State v. Wiley, 355 N.C. 592, 615, 565 S.E.2d 22, 39-40 (2002),

cert. denied, 537 U.S. 1117, 154 L.Ed.2d 795 (2003). Thus, we consider whether

Defendant’s argument in fact challenges “jury instructions” given by the trial court.

We conclude it does not.

                                        B. Analysis

      Jury deliberations in this case began at approximately 2:15 p.m. on 11 July

2015. At 4:00 p.m., the jury sent a note requesting printed copies of the instructions


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                                            Opinion of the Court



on the possible verdicts and asking to view an exhibit. Deliberations resumed at 4:08

p.m. Shortly before 7:00 p.m., the trial court returned the jury to the courtroom,

expressing concern that the jurors “ha[d] been working very, very hard and ha[d] not

taken a break.” The jury, with defense counsel’s consent, was told it could either

“take a dinner recess,” or “continue deliberating . . . [and] have dinner brought in.”

The jurors chose the latter.

        At 7:33 p.m., the jury sent a note requesting to see another exhibit. At 8:43

p.m., the jury sent a note indicating it was deadlocked. At 8:50 p.m., again with

defense counsel’s consent, the trial court exercised its discretion to give the jury

instruction set forth in N.C. Gen. Stat. § 15A-1235(b)5 (often referred to as an Allen

instruction, see Allen v. United States, 164 U.S. 492, 41 L. Ed. 528 (1896)). See State

v. Streeter, 191 N.C. App. 496, 505, 663 S.E.2d 879, 885 (2008) (citing State v. Adams,


        5N.C. Gen. Stat. § 15A-1235(b) (2015) provides that “[b]efore the jury retires for deliberation,
the judge may give an instruction which informs the jury that:

                (1) Jurors have a duty to consult with one another and to deliberate
                with a view to reaching an agreement, if it can be done without violence
                to individual judgment;

                (2) Each juror must decide the case for himself, but only after an
                impartial consideration of the evidence with his fellow jurors;

                (3) In the course of deliberations, a juror should not hesitate to
                reexamine his own views and change his opinion if convinced it is
                erroneous; and

                (4) No juror should surrender his honest conviction as to the weight or
                effect of the evidence solely because of the opinion of his fellow jurors,
                or for the mere purpose of returning a verdict.

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85 N.C. App. 200, 210, 354 S.E.2d 338, 344 (1987)) (noting that “[t]he decision to give

an Allen instruction is within the sound discretion of the trial court.”). Defendant

does not challenge the trial court’s Allen instruction.

      At the conclusion of the Allen instruction, the trial court directed the jury to

“resume [its] deliberations and continue [its] efforts to reach a verdict.” At 10:50 p.m.,

the trial court returned the jury to the courtroom and requested an update on the

deliberations. The following exchange ensued:

             COURT: Have you-all gotten any closer to reaching a
             unanimous verdict? Without saying what the numbers
             are?

             FOREMAN: We’re getting there, Your Honor, a lot closer
             than the first time.

             COURT: At this time do you believe there is a reasonable
             possibility that you all will reach a unanimous verdict?

             FOREMAN:        It will take a little time but I think it’s
             possible.

             COURT: Thank you. . . . Again I gave you those [Allen]
             instructions earlier, keep working at it.

             [. . .]

             COURT: What says the State after hearing the response
             of the jury foreperson?

             STATE: Let them continue to deliberate, Your Honor.

             COURT: What says the defendant?



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                DEFENSE: Same, thank you, Your Honor.

The jury resumed its deliberations and returned to the courtroom with a verdict at

11:34 p.m.

        Defendant now contends that by “requiring the jury to deliberate until almost

midnight on a Saturday with no end in sight and no prospect of an evening recess[,]”

the trial court violated N.C. Gen. Stat. § 15A-1235(c), which provides,

                [i]f it appears to the judge that the jury has been unable to
                agree, the judge may require the jury to continue its
                deliberations and may give or repeat the instructions
                provided in subsections (a) and (b). The judge may not
                require or threaten to require the jury to deliberate for an
                unreasonable length of time or for unreasonable intervals.

N.C. Gen. Stat. § 15A-1235(c) (2015).6 According to Defendant, this subsection (which

Defendant mischaracterizes as a “statutory mandate,” see May, 368 N.C. at 119, 772

S.E.2d at 463), “required . . . [the trial court] to declare a recess well before midnight

. . . and have the jurors continue their deliberations Monday morning during regular

business hours.” Beyond this general contention, Defendant does not identify specific

comments by the trial court that he interprets as “requir[ing] or threaten[ing] to

require the jury to deliberate for an unreasonable length of time.”



        6“N.C.G.S. § 15A-1235(c) does not require an affirmative indication from the jury that it is
having difficulty reaching a verdict, nor does it require that the jury deliberate for a lengthy period of
time before the trial court may give the Allen instruction.” State v. Boston, 191 N.C. App. 637, 643,
663 S.E.2d 886, 891 (2008). Additionally, the trial court is not required to repeat the instruction every
time a jury indicates it is deadlocked. See State v. Summey, 228 N.C. App. 730, 740-41, 746 S.E.2d
403, 410-11 (2013).

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      As noted above, plain error analysis applies only to unpreserved arguments

involving jury instructions or evidentiary issues. In the present case, the trial court

gave no further instructions after the Allen instruction, read to the jury with defense

counsel’s express consent at 8:50 p.m. That instruction, which was given virtually

verbatim in accordance with N.C.G.S. § 15A-1235(b), is not challenged on appeal. The

trial court concluded its Allen instruction by directing the jury to “resume [its]

deliberations and continue [its] efforts to reach a verdict.”

      A trial court’s decision to order further jury deliberations is not a “jury

instruction;” rather, it is a discretionary ruling permitted by N.C.G.S. § 15A-1235(c).

See State v. Ross, 207 N.C. App. 379, 387-88, 700 S.E.2d 412, 418 (2010). In the

present case, when the trial court requested an update from the jury at 10:50 p.m.,

the court gave no new instructions and did not repeat the Allen instruction. It merely

asked whether there appeared to be “a reasonable possibility” that the jury would

reach a verdict. See, e.g., Streeter, 191 N.C. App. at 504, 663 S.E.2d at 885 (finding

trial court’s inquiry into status of jury deliberations did not “coerce or intimidate the

jury into reaching a verdict[,]” where court “did not ask whether the split [vote] was

for conviction or acquittal . . . [and] was not impatient towards the jury nor did it

indicate that it would hold the jury until a verdict was reached.”). The trial judge

then acted within his statutory discretion to “require the jury to continue its

deliberations,” based on the foreman’s assurances that the jury was making progress


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                                    Opinion of the Court



toward a unanimous verdict.       Arguably, N.C.G.S. § 15A-1235(c) was not even

implicated at this point in the proceedings, because it no longer “appear[ed] . . . that

the jury [was] unable to agree.” See State v. Smith, 188 N.C. App. 207, 217, 654

S.E.2d 730, 738 (2008) (concluding N.C.G.S. § 15A-1235(c) was inapplicable because

jury was not deadlocked when, “[o]n more than one occasion, the [trial] court asked

the jury foreman whether the jury was making progress towards a verdict [and]

[e]ach time he was asked, the foreman indicated that the jury was making progress.”).

Defendant has failed to identify an “instruction” by the trial court that “require[d] or

threaten[ed] to require the jury to deliberate for an unreasonable length of time,” a

prerequisite for plain error review of this argument. See Ross, 207 N.C. App. at 387-

88, 700 S.E.2d at 418.

      Even assuming arguendo that plain error review is appropriate, Defendant has

not shown he was prejudiced by the trial court’s instructions or comments to the jury

regarding its deliberations. This Court has suggested that a trial court “require[s] or

threaten[s] to require the jury to deliberate for an unreasonable length of time or for

unreasonable intervals” if, “[under the totality of] the circumstances surrounding jury

deliberations[,] [the trial court’s actions] might reasonably be construed by . . . the

jury . . . as coercive.” State v. Dexter, 151 N.C. App. 430, 433, 566 S.E.2d 493, 496

(2002) (citation and internal quotation marks omitted). A trial court’s decisions

regarding the length of jury deliberations are coercive if they


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                                    Opinion of the Court



             suggest[] to [a member of the jury] that he should
             surrender his well-founded convictions conscientiously
             held or his own free will and judgment in deference to the
             views of the majority and concur in what is really a
             majority verdict rather than a unanimous verdict.

State v. Roberts, 270 N.C. 449, 451, 154 S.E.2d 536, 538 (1967). See also May, 368

N.C. at 119, 772 S.E.2d at 463 (quoting State v. Patterson, 332 N.C. 409, 416, 420

S.E.2d 98, 101 (1992)) (holding that “as part of our plain error analysis, in

determining whether a trial court's instructions led to a coerced jury verdict . . . ‘we

must analyze the trial court's actions in light of the totality of the circumstances

facing the trial court at the time it acted.’”); State v. Peek, 313 N.C. 266, 271, 328

S.E.2d 249, 253 (1985) (holding that “in deciding whether a court’s instructions force

a verdict or merely serve as a catalyst for further deliberations, an appellate court

must consider the circumstances under which the instructions were made and the

probable impact of the instructions on the jury.”).

      Considering the record as a whole, we find no suggestion that permitting the

jury to continue deliberations, without editorialization by the trial court, when a

unanimous verdict appeared imminent, “tilted the scales and [coerced] the jury to

reach its verdict convicting [Defendant].” See State v. Walker, 316 N.C. 33, 39, 340

S.E.2d 80, 83 (1986) (internal quotation marks and citation omitted). The trial court

gave a proper and complete Allen instruction after being informed the jury was

deadlocked and, without further comment, asked the jury to resume deliberations.


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In its final colloquy with the jury, the trial court explicitly avoided inquiring into the

jury’s numerical split. Moreover, “the trial court did not communicate with less than

all of the jurors . . . [or] rush[] the jury to reach a verdict[.]” Summey, 228 N.C. App.

at 742, 746 S.E.2d at 411-12. It did not “convey[] the impression that it was irritated

with the jury for not reaching a verdict, . . . [or] intimate[] that it would hold the jury

until it reached a verdict[.]” State v. Nobles, 350 N.C. 483, 510, 515 S.E.2d 885, 901-

02 (1999). See also Smith, 188 N.C. App. at 218, 654 S.E.2d at 738 (holding trial

court’s instructions were not coercive where “[a]t no time did the trial court inform

the jurors that they would not be able to go home until they reached a unanimous

verdict or that they would remain together until they reconciled their differences.”);

State v. Rasmussen, 158 N.C. App. 544, 560-61, 582 S.E.2d 44, 56 (2003) (finding no

coercion notwithstanding “(1) the trial court’s statement to the jury that it wanted ‘to

get the case done if we can do it today[]’; [and] (2) the fact that the jury was asked to

deliberate after normal hours on a Friday evening.”).          Contrary to Defendant’s

contention that the trial court required the jury to deliberate “with no end in sight

and no prospect of an evening recess,” the trial court’s comments to the jury at 10:50

p.m. reflected an attempt to ascertain whether continuing deliberations would be

futile.




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      In State v. Williams, 315 N.C. 310, 338 S.E.2d 75 (1986), our Supreme Court

found a trial court did not coerce a verdict, despite inquiring into the jury’s numerical

division and giving an incomplete Allen instruction, where

             [t]he jury was not required to deliberate for an inordinate
             amount of time, and at no point did the jurors indicate that
             they were hopelessly deadlocked. The trial judge also
             granted the jury’s requests to review exhibits introduced at
             trial. The record also reveals that the trial judge was
             polite, considerate, and accommodating toward the jury.

Id., 315 N.C. at 329, 338 S.E.2d at 86. In the present case, as in Williams, Defendant

“has failed to point to any statement, act, or omission by the [trial] court which could

remotely be interpreted as coercive.” Id., 315 N.C. at 329, 338 S.E.2d at 86-87. This

argument is overruled.

                  VII. Consideration of Mitigating Factors at Sentencing

                                   A. Standard of Review

      Defendant lastly contends the trial court erroneously failed to consider

“mitigating factors present in the offense” at Defendant’s sentencing. “The standard

of review for application of mitigating factors is an abuse of discretion.” State v.

Hagans, 177 N.C. App. 17, 31, 628 S.E.2d 776, 785 (2006) (citing State v. Butler, 341

N.C. 686, 694–95, 462 S.E.2d 485, 489–90 (1995)). See also State v. Garnett, 209 N.C.

App. 537, 549, 706 S.E.2d 280, 288 (2011) (quoting State v. Rogers, 157 N.C. App. 127,

129, 577 S.E.2d 666, 668 (2003)) (stating that “‘[a] trial court's weighing of mitigating



                                         - 31 -
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                                     Opinion of the Court



and aggravating factors will not be disturbed on appeal absent a showing that there

was an abuse of discretion.’”). “Abuse of discretion results where the trial court’s

ruling is manifestly unsupported by reason or is so arbitrary that it could not have

been the result of a reasoned decision.” State v. Thomsen, ___ N.C. ___, ___, 776

S.E.2d 41, 48 (2015) (quoting State v. Rollins, 224 N.C. App. 197, 199, 734 S.E.2d 634,

635 (2012)).

      In North Carolina, “‘[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. Bacon, 228 N.C. App. 432, 436, 745 S.E.2d 905, 908-09 (2013) (quoting State

v. Mabry, 217 N.C. App. 465, 471, 720 S.E.2d 697, 702 (2011)). On appeal, a trial

court may be reversed for failure to find a mitigating factor “only when the evidence

offered in support of that factor ‘is both uncontradicted and manifestly credible.’”

Mabry, 217 N.C. App. at 471, 720 S.E.2d at 702 (quoting State v. Jones, 309 N.C. 214,

220, 306 S.E.2d 451, 456 (1983)).

                                          B. Analysis

      The trial court sentenced Defendant within the presumptive range for a Class

B1 felony, prior record level I. See N.C. Gen. Stat. §§ 15A-1340.17(c)(2), (e) (2015). It

is well-established that a trial court is not required to make findings of mitigation or

aggravation if, in its discretion, it does not depart from the presumptive sentencing


                                          - 32 -
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                                     Opinion of the Court



range, “even if evidence of mitigating factors is presented at sentencing.” State v.

Kelly, 221 N.C. App. 643, 648, 727 S.E.2d 912, 915 (2012) (citing Hagans, 177 N.C.

App. at 31, 628 S.E.2d at 785–86 (2006)); see also State v. Norris, 360 N.C. 507, 512,

630 S.E.2d 915, 918 (2006) (holding that “the trial court is free to choose a sentence

from anywhere in the presumptive range without findings other than those in the

jury’s verdict.”); N.C. Gen. Stat. § 15A-1340.16(a) (2015) (providing in part that “[t]he

court shall consider evidence of aggravating or mitigating factors present in the

offense that make aggravated or mitigated sentences appropriate, but the decision to

depart from the presumptive range is in the discretion of the court.”); N.C. Gen. Stat.

§ 15A-1340.16(c) (2015) (providing in part that “[t]he court shall make findings of the

aggravating and mitigating factors present in the offense only if, in its discretion, it

departs from the presumptive range of sentences specified in G.S. 15A-

1340.17(c)(2).”).   Accordingly, because the trial court did not depart from the

presumptive range in sentencing Defendant, it was not required to make any findings

regarding mitigation. See State v. Caldwell, 125 N.C. App. 161, 162-63, 479 S.E.2d

282, 283 (1997) (concluding that “[our] Legislature [clearly] intended to provide the

trial court with a window of discretion to be exercised when sentencing a criminal

defendant within the presumptive range. It is not the province of this Court to impose

the additional requirement that the trial court justify its decision by making findings

of aggravation and mitigation subject to appellate review.”).


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        Defendant argues that, even if not required to make findings, the trial court

erroneously failed to “consider” evidence of mitigating factors that were “proved by

the State’s own evidence.” (Def. br. at 36) This argument is without merit. A sentence

that falls within the presumptive range but is imposed “without comment . . . does

not mean the trial court failed to consider the mitigating factors presented.” Hagans,

177 N.C. App. at 31, 628 S.E.2d at 786. See also State v. Chavis, 141 N.C. App. 553,

568, 540 S.E.2d 404, 415 (2000) (concluding that, “[a]s the trial court imposed the

presumptive sentence . . ., it was not required to take into account any evidence

offered in mitigation.”).

        We note that, at sentencing, Defendant did not assert the specific statutory

factors he now argues the trial court erroneously failed to consider.7                        Where a

defendant

                fails to request that a trial court find a factor in mitigation,
                the trial court has a duty to find the factor only when the
                evidence offered at the sentencing hearing supports the
                existence of a [statutory] mitigating factor . . . [and]
                defendant [proves] by a preponderance of the evidence 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.




        7Specifically, Defendant cites N.C. Gen. Stat. § 15A-1340.16(e)(1) (2015) (“The defendant
committed the offense under . . . threat . . . [that] significantly reduced the defendant’s culpability.”)
and N.C. Gen. Stat. § 15A-1340.16(e)(8) (2015) (“The defendant acted under strong provocation . . . .”).

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See State v. Davis, 206 N.C. App. 545, 549, 696 S.E.2d 917, 920 (2010) (internal

quotation marks and citations omitted). During Defendant’s sentencing hearing, in

requesting a sentence at the lowest end of the mitigated range, defense counsel told

the trial court only that Defendant had committed “an unintentional act.”           Our

Supreme Court has held that, absent a stipulation by the State, “statements made by

defense counsel during argument at the sentencing hearing do not constitute

evidence which would support a finding of [either] nonstatutory [or statutory]

mitigating factors.” State v. Swimm, 316 N.C. 24, 32, 340 S.E.2d 65, 71 (1986).

         Defendant addressed the trial court prior to sentencing, reasserting his claim

of self-defense and expressing remorse for the “tragic situation.” Even if this could

be characterized as evidence of mitigating factors, the trial court acted “squarely

[with]in its discretion . . . by sentencing Defendant in the presumptive range after

considering Defendant’s evidence of mitigating factors.” Garnett, 209 N.C. App. at

550, 706 S.E.2d at 288.

                                       VIII. Conclusion

         For the reasons stated in this opinion, we find Defendant’s trial was free from

error.

         NO ERROR.

         Judges HUNTER, JR., and DILLON concur.




                                          - 35 -
