                                NO. COA13-437

                    NORTH CAROLINA COURT OF APPEALS

                           Filed:    7 January 2014

STATE OF NORTH CAROLINA

     v.                                   Wake County
                                          No. 08 CRS 85092,
                                              10 CRS 0651
ALLEGRA ROSE DAHLQUIST


     Appeal by defendant from judgments entered 15 November 2010

by Judge Paul C. Ridgeway in Wake County Superior Court.          Heard in

the Court of Appeals 24 September 2013.


     Attorney General Roy Cooper, by Assistant Attorney General
     Teresa M. Postell, for the State.

     Rudolf Widenhouse & Fialko, by M. Gordon Widenhouse, Jr., for
     defendant-appellant.


     McCULLOUGH, Judge.


     Defendant   Allegra    Rose    Dahlquist   appeals   from   judgments

entered upon pleading guilty to second-degree murder, two counts

of conspiracy to commit murder, and attempted murder.            Defendant

seeks a new sentencing hearing arguing that the trial court failed

to find two mitigating factors and that the trial court erroneously

relied on evidence obtained from the trial and sentencing hearing

of her co-defendants.      After careful review, we find no error.

                                I. Background
                               -2-
     On 16 December 2008, defendant Allegra Rose Dahlquist was

indicted for murder and conspiracy to commit murder for events

that occurred on 30 November 2008.   On 9 February 2010, defendant

was indicted for attempted first-degree murder and conspiracy to

commit first-degree murder for events that occurred on 25 November

2008.

     On 13 August 2010, defendant pled guilty to the following:

second-degree murder, two counts of conspiracy to commit murder,

and attempted murder.   As part of defendant’s plea agreement, the

State agreed to reduce the first-degree murder charge to second-

degree murder.   Defendant agreed “to cooperate with Wake County

investigators and to testify truthfully and consistently with any

statement made to investigators if called upon to do so.”1

     At her 13 August 2010 plea hearing, the State proffered the

following as a factual basis for the guilty plea: Defendant, Aadil

Kahn (“Kahn”)2, Ryan Hare (“Hare”) and Drew Shaw (“Shaw”) all

attended Apex High School and were friends.    Defendant and Hare




1 Defendant testified at co-defendant Ryan Patrick Hare’s trial.
See State v. Hare, __ N.C. App. __, 722 S.E.2d 14 (2012)
(unpublished).
2 Khan pled guilty to second-degree murder, conspiracy to commit

murder, attempted first-degree murder, and conspiracy to commit
first-degree murder for the events that occurred on 25 and 30
November 2008. See State v. Khan, 366 N.C. 448, 449-50, 738 S.E.2d
167, 168-69 (2013).
                                       -3-
became involved in a romantic relationship.          At some point, their

relationship ended, and defendant began a romantic relationship

with Matthew Silliman (“Silliman”), the victim.          Hare was jealous

of the relationship between Silliman and defendant.            Eventually,

defendant and Hare resumed their relationship in November 2008.

Hare began to form a plan to kill Silliman.             Sometime in mid-

November, Kahn was brought into the conspiracy to kill Silliman.

Defendant was brought into the conspiracy one or two weeks prior

to 25 November 2008.

     On the night of 25 November 2008, defendant and Silliman were

riding around Apex in defendant’s vehicle.           They picked up Hare

and Kahn in her vehicle.         Once they reached a rural road in Wake

County,   Hare   put   a   zip   tie   around   Silliman’s   throat   in   an

unsuccessful attempt to strangle him.           Kahn had also planned to

taser Silliman, but the taser failed to work.

     Thereafter, Silliman was taken to an abandoned house owned by

defendant’s family. Silliman stayed at this house from 25 November

2008 until his death on 30 November 2008.

     Silliman remained at the abandoned house during this time

period because defendant, Kahn, and Hare had devised a plan and

told Silliman that an individual by the name of Roger was “after
                                 -4-
him and that [Silliman] needed to get out of town, and they were

proposing train departure times for him to leave during that week.”

     On 29 November 2008, defendant participated in digging a grave

for Silliman.    On 30 November 2008, defendant picked up Shaw from

his residence. Kahn and Hare were already with Silliman.       Shaw’s

role involved waiting outside the abandoned house, holding a

baseball bat, in the event that Silliman attempted to escape.

     Defendant read Silliman tarot cards and an e-mail in an effort

to distract him.     While Silliman was distracted, Hare came up

behind Silliman and hit him with a hammer but the hammer did not

faze Silliman.

     At this point, Shaw left the abandoned house and defendant

took Shaw back to his residence.       Defendant then returned to the

house, at which time Silliman had been drinking wine mixed with

horse tranquilizers.   Silliman became “groggy” and started to fall

asleep.   Silliman’s hands were zip tied in front of him and his

feet were zip tied together. Duct tape was put over Silliman’s

mouth and a plastic bag was placed over his head.    Defendant placed

a zip tie over the plastic bag around Silliman’s neck and Hare

tightened the zip tie.    Silliman’s cause of death was suffocation

and asphyxiation.
                                 -5-
     On 2 December 2008, Shaw confessed to his grandmother that

he had been involved in this incident and named defendant, Kahn,

and Hare as fellow participants.

     On 15 November 2010, defendant was sentenced in the aggravated

range to two consecutive terms of 180 to 225 months.

     The trial court found and defendant admitted to the existence

of the aggravating factor that “defendant took advantage of a

position   of    trust   or   confidence,    including   a    domestic

relationship, to commit the offense.”       The trial court found as

mitigating factors that defendant “aided in the apprehension of

another felon,” “defendant voluntarily acknowledged wrongdoing in

connection with the offense to a law enforcement officer at an

early stage of the criminal process,” and “defendant has accepted

responsibility for the defendant’s criminal conduct.”        The trial

court then determined that the aggravating factors outweighed the

mitigating factors and that the aggravated sentence was justified.

     Defendant did not give notice of appeal at that time.       On 17

December 2012, defendant filed a petition for writ of certiorari

to this Court.   This petition was granted by order entered on 28

December 2012.

                              II. Discussion
                                             -6-
      Defendant advances the following issues on appeal: whether

the   trial    court     erred    by   (A)     failing   to    find     two   statutory

mitigating factors and (B) relying on evidence from Hare’s trial

and Khan’s sentencing hearing to impose an aggravated sentence.

                                 A. Mitigating Factors

      Defendant argues that the trial court failed to find two

statutory mitigating factors:                  (1) that defendant’s “age, or

immaturity,        at   the   time     of    the   commission      of    the    offense

significantly reduced defendant’s culpability for the offense”

pursuant to N.C. Gen. Stat. § 15A-1340.16(e)(4) and (2) that

“defendant has a support system in the community” pursuant to N.C.

Gen. Stat. § 15A-1340.16(e)(18).

                                 (i). Standard of Review

      A “[f]inding that a mitigating factor exists is within the

trial judge’s discretion[.]”                State v. Kinney, 92 N.C. App. 671,

678, 375 S.E.2d 692, 696 (1989).                   “[T]he trial judge has wide

latitude      in    determining        the     existence      of   aggravating     and

mitigating factors, for it is he who observes the demeanor of the

witnesses and hears the testimony.”                State v. Canty, 321 N.C. 520,

524, 364 S.E.2d 410, 413 (1988) (citation and quotations omitted).

      It is well established that “[t]he defendant bears the burden

of proof to establish the existence of mitigating factors.”                       State
                                   -7-
v. Thompson, 314 N.C. 618, 625, 336 S.E.2d 78, 82 (1985) (citation

omitted).

            [A] trial court must find a statutory
            mitigating factor if that factor is supported
            by uncontradicted, substantial, and credible
            evidence. To show that the trial court erred
            in failing to find a mitigating factor, the
            evidence must show conclusively that this
            mitigating factor exists, i.e., no other
            reasonable inferences can be drawn from the
            evidence.            Even      uncontradicted,
            quantitatively   substantial    and   credible
            evidence may simply fail to establish, by a
            preponderance of the evidence, any given
            factor in aggravation or mitigation.     While
            evidence 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. Richardson, 341 N.C. 658, 674-75, 462 S.E.2d 492, 503

(1995) (citations and quotations omitted).

                     1. N.C. Gen. Stat. § 15A-1340.16(e)(4)

     First, defendant argues that the trial court erred by failing

to find a mitigating factor when evidence supporting N.C.G.S. §

15A-1340.16(e)(4), that defendant’s “age, immaturity, or limited

capacity at the time of the commission of the offense significantly

reduced   the    defendant’s   culpability     for   the   offense[,]”   was

supported       by   uncontradicted      and     substantial     evidence.

Specifically, defendant argues that she was only seventeen (17)

years old at the time of the crimes and that she presented expert
                                        -8-
testimony as to “her immaturity, coupled with her depression and

susceptibility to control by her peers, especially Ryan Hare.”

     The     mitigating    factor       listed    under      N.C.G.S.   §   15A-

1340.16(e)(4) “includes two inquiries – one as to immaturity (or

mental capacity) and one as to the effect of such immaturity upon

culpability.”      State v. Moore, 317 N.C. 275, 280, 345 S.E.2d 217,

221 (1986) (citation omitted).            “[A]ge alone is insufficient to

support this factor.          By its use of the term ‘immaturity,’ the

General Assembly contemplated an inquiry which is ‘broader than

mere chronological age’ and which is ‘concerned with all facts,

features, and traits that indicate a defendant’s immaturity and

the effect of that immaturity on culpability.’”               State v. Barton,

335 N.C. 741, 751, 441 S.E.2d 306, 312 (1994) (citations and

quotation marks omitted).         We emphasize that “[i]t is within the

trial   judge’s      discretion     to        assess   the     conditions   and

circumstances of the case in determining whether the defendant’s

immaturity    or    limited    mental    capacity      significantly    reduced

culpability.”      State v. Holden, 321 N.C. 689, 696, 365 S.E.2d 626,

630 (1988).

     We find State v. Holden, 321 N.C. 689, 365 S.E.2d 626 (1988),

to be instructive.     In Holden, a seventeen (17) year old defendant

pled guilty to the second-degree murder of her infant daughter.
                                      -9-
The defendant argued that the trial court erred by failing to find

the statutory mitigating factor that her immaturity or limited

mental capacity at the time of the murder significantly reduced

her culpability for the offense.            Id. at 696, 365 S.E.2d at 630.

The Supreme Court held that although there was uncontradicted

evidence that the defendant had the emotional maturity of a twelve

or thirteen year old and that she had a diminished intellectual

capacity and an IQ of 70, evidence of “planning, weighing of

options, and covering her own tracks tended to negate defendant’s

claim that she was unable to appreciate her situation or the nature

of her conduct.”         Id. at 696-97, 365 S.E.2d at 630.          The Holden

Court held that the trial court did not abuse its discretion in

failing to find that the defendant’s culpability was reduced by

her immaturity or limited mental capacity.             Id.

      In the present case, defendant was seventeen years old at the

time of the crimes. Defendant’s expert witness Dr. Moira Artigues,

an   expert   in    forensic   psychiatry,     testified     that   defendant’s

emotional maturity level was that of an eleven (11) or twelve (12)

year old.     Dr. Artigues also testified that defendant had trouble

academically       and   socially,   was   suffering   from   depression   and

anxiety, was “smashed down by life,” and was “easy prey” for

manipulation by Hare.          However, similar to Holden, the State’s
                                     -10-
summary of the facts conflicted with defendant’s contention that

her youth and immaturity reduced her culpability for the crime.

The State’s summary of the facts tended to show that defendant

participated in the planning of the events that occurred on 25

November and throughout 30 November 2008.                  Defendant actively

participated in carrying out the murder of Silliman by such actions

as distracting him, placing the zip tie around his neck, and

assisting in digging a grave for him.             Further, after the murder

of Silliman, she attempted to cover her tracks by disposing of his

belongings and telling Silliman’s family that she did not know

Silliman’s     whereabouts.         Evidence      of   planning,         actively

participating in the crimes on at least two separate dates, and

covering her own tracks all “tend[] to negate defendant’s claim

that she was unable to appreciate her situation or the nature of

her conduct.”    Holden, 321 N.C. at 696-97, 365 S.E.2d at 630.

     Based on the foregoing, we hold that defendant has failed to

meet her “burden of showing that the evidence compels the finding

and that no contrary inference can reasonably be drawn.”                 State v.

Colvin,   92   N.C.   App.   152,   160,    374   S.E.2d    126,   132   (1988).

Accordingly, we are unable to hold that the trial court abused its

discretion in failing to find the mitigating factor pursuant to

N.C.G.S. § 15A-1340.16(e)(4).        Defendant’s argument is overruled.
                                        -11-
                     2. N.C. Gen. Stat. § 15A-1340.16(e)(18)

     Next, defendant argues that the trial court erred by failing

to find a mitigating factor where there was uncontradicted and

substantial evidence presented as to whether defendant had a

“support system in the community” pursuant to N.C. Gen. Stat. §

15A-1340.16(e)(18).     We disagree.

     Defendant     directs    us   to    the   following   testimony    of   Dr.

Artigues in support of her argument:

            [Defendant] has repaired her relationship with
            her mother and grandmother.    Her mother and
            grandmother have stood by her through all of
            this and I think that has demonstrated to
            [defendant] that they love her. She was able
            to say to me that she was grateful for them
            one of the last times I visited her, and that
            was very different from how she had been
            speaking about her relationship with them
            before.

Defendant also argues that Dr. Artigues testified that defendant

had received psychiatric treatment after her arrest.

     While the foregoing evidence supports the conclusion that

defendant    has   restored    her      relationship   with   her   family     –

specifically her mother and grandmother – and that defendant has

received some psychiatric treatment, the evidence does not speak

to the existence of “a support system in the community.”               In State

v. Kemp, 153 N.C. App. 231, 569 S.E.2d 717 (2002), our Court held

that “[t]estimony demonstrating the existence of a large family in
                                   -12-
the community and support of that family alone is insufficient to

demonstrate the separate mitigating factor of a community support

system.”    Id. at 241-42, 569 S.E.2d at 723. Here, the testimony

defendant relies on simply fails to establish, by a preponderance

of the evidence, the existence of a community support system as a

statutory mitigating factor.       Thus, we hold that the trial court

did not abuse its discretion and defendant’s argument is overruled.

             B. Evidence Considered during Sentencing Hearing

     Next, defendant argues that during her sentencing hearing,

the State failed to present any evidence of her role in the

offenses and that the trial court erroneously relied on evidence

obtained from the trial of her co-defendant Hare and from the

sentencing hearing of her co-defendant Khan to impose an aggravated

sentence.    Defendant contends that because of this error, she is

entitled to a new sentencing hearing.          We disagree.

     Defendant relies on State v. Benbow, 309 N.C. 538, 308 S.E.2d

647 (1983), for the contention that a trial court cannot rely on

evidence    from   another   proceeding   in   fashioning     a   defendant’s

sentence.    In Benbow, the defendant and three other co-defendants

robbed and murdered an owner of a warehouse on 28 December 1981.

The defendant agreed to testify for the State in the trial of his

co-defendants in return for acceptance of a plea to second-degree
                                     -13-
murder.    Id. at 540, 308 S.E.2d at 648-49.            At the defendant’s

sentencing hearing, the defendant and the State stipulated to a

particular set of facts as an accurate narration of the events

leading up to the victim’s death.           Id. at 540, 308 S.E.2d at 649.

Defendant’s evidence in mitigation consisted of the testimony of

several witnesses.        The State presented no rebuttal evidence and

relied    on    the    evidence   presented   during   the   trials   of   the

defendant’s co-defendants to support the aggravating factors.              Id.

at 543, 308 S.E.2d at 650.        The Supreme Court stated the following:

               We emphasize that a defendant’s liability for
               a crime . . . is determined at the guilt phase
               of a trial or, as in the case sub judice, by
               a plea. At sentencing the focus must be on
               the offender’s individual culpability. It is
               therefore proper at sentencing to consider the
               defendant’s actual role in the offense as
               opposed to his legal liability for the acts of
               others.

               . . .

               [A]t any sentencing hearing held pursuant to
               a plea of guilty, reliance on evidence from
               the trials of others connected with the same
               offense is improper absent a stipulation.
               Even   with   such  a   stipulation   reliance
               exclusively on such record evidence from other
               trials (in which the defendant being sentenced
               had no opportunity to examine the witnesses)
               as a basis for a finding of an aggravating
               circumstance    may   constitute   prejudicial
               error.   In such other trials the focus is
               necessarily upon the culpability of others and
               not on the culpability of the defendant being
               sentenced. Thus, by proper stipulation and in
                               -14-
           the interests of judicial economy, the
           sentencing judge may consider the evidence
           from such other trials, but only as incidental
           to his present determination of defendant’s
           individual   culpability   as   a  factor   in
           sentencing.

Id. at 546-49, 308 S.E.2d at 652-54.

      In the present case, however, defendant repeatedly relied on

evidence gained from her testimony at Hare’s trial and evidence

obtained from Khan’s sentencing hearing in support of her arguments

that the trial court should find the existence of mitigating

factors:

           [Defendant’s Counsel:]       I was in the
           courtroom, just like the Court was, when I
           heard her testify to it. . . . and while I was
           sitting there listening to her testify the
           lawyer part of me was saying, “Oh, my gosh,
           Allegra, you don’t have to be so graphic about
           yourself,” but she was, because she was
           absolutely, purely honest to this court and to
           the jury about her responsibility and about
           what happened, and the truth is she was the
           only one that was, and the purity of that
           exists somewhere in the evil of what happened.

           . . . .

           [Defendant’s Counsel:]    I have an exhibit.
           It’s Defendant’s Exhibit Number 1. . . . This,
           Your Honor, is a document that was testified
           to at trial, or at least maybe at the hearing
           of Mr. Khan[.]

           . . . .

           [Dr. Moira Artigues (defendant’s witness):]
           To complete my evaluation [of defendant] I
                                     -15-
            looked at selected discovery materials. This
            case was unique in that I was able to watch
            much of Ryan Hare’s trial on the WRAL
            archives[.]

            . . . .

            [Dr. Moira Artigues:]   I was able to watch
            [the prosecutor in Hare’s trial’s] closing,
            and in that he summarized the evidence very
            well, and what [the prosecutor] concluded was
            that [defendant] had been manipulated by Ryan
            Hare[.]

            . . . .

            [Defendant’s Counsel:] You heard her testify
            at the [Hare] trial they were doing the things
            that they were doing at the end to [Silliman.]
            [SIC]

            . . . .

            [Defendant’s Counsel:]    But Your Honor, I
            think if you listen to Dr. Artigues, and if
            you watched her – which I know you did – when
            she testified, I know you saw the raw emotion
            and reality and honesty that came out of this
            young woman – I know you saw it.

     Based on the foregoing instances, we hold that defendant is

precluded from arguing that the trial court’s consideration of

such evidence in imposing an aggravated sentence amounted to error.

Section   15A-1443(c)    of    the   North   Carolina    General   Statutes

provides that “[a] defendant is not prejudiced by the granting of

relief which he has sought or by error resulting from his own

conduct.”     N.C.    Gen.   Stat.   §   15A-1443(c)   (2011).     “Thus,   a
                                 -16-
defendant who invites error has waived his right to all appellate

review   concerning   the   invited   error,   including   plain   error

review.”   State v. Hope, __ N.C. App. __, __, 737 S.E.2d 108, 111

(2012) (citation omitted).     Accordingly, defendant has waived his

right to appellate review of this issue.

    Affirm.

    Judges McGEE and DILLON concur.
