An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA10-853 NORTH CAROLINA COURT OF APPEALS Filed: 3 May 2011 STATE OF NORTH CAROLINA v. LEONARD ANTHONY CAMARATA. Johnston County File No. 07 CRS 054421 On writ of certiorari permitting review of judgment entered 15 January 2009 by Judge Thomas H. Lock in Johnston County Superior Court. Heard in the Court of Appeals 25 April 2011. Attorney General Roy Cooper, by Assistant Attorney General Thomas H. Moore, for the State. Rudolph Widenhouse & Fialko, by M. Gordon Widenhouse, Jr., for defendant-appellant. ERVIN, Judge. Defendant Leonard Anthony Camarata challenges the lawfulness of a judgment entered by the trial court sentencing him to a minimum term of 250 months and a maximum term of 309 months imprisonment in the custody of the North Carolina Department of Correction based upon his plea of guilty to first degree sexual offense. On appeal, Defendant contends that the trial court erroneously sentenced him in the aggravated range despite having failed to find the existence
-2- of four statutory mitigating factors that were supported by undisputed and manifestly credible evidence. After careful consideration of Defendant s challenge to the trial court s judgment in light of the record and the applicable law, we conclude that the trial court s judgment should be affirmed. I. Factual Background In 2007, Defendant was a neighbor of S.C. 1 and her family. At the time of the commission of the offense to which Defendant pled guilty, Sarah was three years old. As a result of her friendship with Defendant s four year old daughter, Sarah spent a significant amount of time at Defendant s home. Sarah s parents trusted Defendant to care for Sarah when she was in his home. Sometime after 22 May 2007, Sarah s older sister, who was about nineteen years old at the time, changed Sarah s diaper and noticed an unusual odor. Sarah=s mother, H.C., 2 examined Sarah and observed that her genital area appeared to be red and irritated. After Heather finished cleaning Sarah, she placed Sarah on her lap and asked her what had happened. Upon being assured that she would not get in trouble for telling the truth, Sarah told her mother, 1 Sarah is a pseudonym that will be used throughout the remainder of this opinion for the purpose of protecting the identity of the child victim and for ease of reading. 2 Heather is a pseudonym that will be used throughout the remainder of this opinion for the purpose of protecting the privacy of the child victim=s family and for ease of reading.
-3- Tony does that to me. Heather asked what Tony did to her, and Sarah replied, Tony pulls my pants down, pulls my shirt up, and sucks my pee-pee. Heather took Sarah to see her pediatrician, who concluded that Sarah had a urinary tract infection. Sarah described various behaviors in which Defendant had engaged to a doctor, including masturbating in Sarah s presence and penetrating Sarah s vagina with his penis. In June of 2007, investigating officers contacted Defendant, who agreed to come to the Johnston County Sheriff s Department and speak to them. At that time, Defendant spoke to investigating officers for about ninety minutes. During that conversation, Defendant confessed to having abused Sarah. Although the investigating officers composed a written statement that summarized the statements that Defendant had made during this interview, Defendant refused to sign the statement. Shortly after speaking with the investigating officers, Defendant was arrested. On 13 June 2007, a Warrant for Arrest charging Defendant with first degree rape, first degree sexual offense, and taking indecent liberties with a child was issued. On 23 July 2007, the Johnston County grand jury returned a bill of indictment charging Defendant with first degree rape, first degree sexual offense, and taking indecent liberties with a child. On 13 January 2009, Defendant signed a Transcript of Plea pursuant to which he agreed to enter an
-4- Alford plea to first degree sexual offense and to stipulate to the existence of the statutory aggravating factor that [d]efendant took advantage of a position of trust [and] confidence to commit the offense in return for the State s agreement to dismiss the first degree rape and indecent liberties charges. According to the plea agreement between Defendant and the State, sentencing was to be in the trial court s discretion. Defendant entered his plea before the trial court in the Johnston County Superior Court on 15 January 2009. At the plea and sentencing hearing, Heather testified that she trusted Defendant to care for Sarah and that Sarah spent the night in Defendant s home on occasion. Detective Chad Barefoot of the Johnston County Sheriff s Department testified that Defendant voluntarily met with investigating officers after having been identified as a suspect. Defendant s wife and another relative testified that Defendant had a good reputation in the community, was a person of good character, and had not been previously known to abuse children. Defendant introduced letters of support from two other relatives and a psychologist who had provided him with general psychological counseling to address issues relating to anxiety and depression. At the conclusion of the hearing, Defendant told the trial court, I m not a professional speaker. I haven t brought a prepared statement. I just simply wish to offer my humblest apologies to the Court.
-5- Defendant s trial counsel requested the trial court to find the existence of seven statutory mitigating factors: (1) that Defendant voluntarily acknowledged his wrongdoing to a law enforcement officer at an early stage of the criminal process; (2) that Defendant had been a person of good character with a good reputation in the community; (3) that Defendant had accepted responsibility for his criminal conduct; (4) that Defendant had entered or completed a drug or alcohol treatment program after arrest but prior to trial; (5) that Defendant supported his family; (6) that Defendant had a support system in the community; and (7) that Defendant had a positive employment history. On the other hand, Defendant admitted to the existence of the statutory aggravating factor relating to his having taken advantage of a position of trust to commit the offense. At the time that it imposed sentence, the trial court found that Defendant had no prior record points and should be sentenced as a Level I offender. The trial court further found as an aggravating factor that defendant took advantage of a position of trust or confidence... to commit the offense; found as a mitigating factor that Defendant voluntarily acknowledged wrongdoing in connection with the offense to a law enforcement officer prior to arrest, that Defendant supports [his] family, and that Defendant has a positive employment history or is gainfully employed; and concluded that the factor[] in aggravation outweigh[s] the factors in mitigation and
-6- that an aggravated sentence is justified. Based upon these determinations, the trial court sentenced Defendant to a minimum term of 250 months and a maximum term of 309 months imprisonment in the custody of the North Carolina Department of Correction and ordered Defendant to register as a sex offender and to enroll in lifetime satellite-based monitoring. Although Defendant did not note a timely appeal, this Court allowed Defendant s request for the issuance of a writ of certiorari in order to permit appellate review of the trial court s judgment. II. Legal Analysis On appeal, Defendant argues that the trial court erred by failing to find the existence of the statutory mitigating factors that Defendant has been a person of good character or has had a good reputation in the community in which [he] lives, that Defendant has accepted responsibility for [his] criminal conduct, that Defendant has entered and is currently involved in or has successfully completed a drug treatment program or an alcohol treatment program subsequent to arrest and prior to trial, and that Defendant has a support system in the community. In support of this contention, Defendant claims that the uncontradicted and manifestly credible evidence supported a finding that each of these statutory mitigating factors existed. We disagree.
-7- A sentencing judge must find a statutory mitigating sentence factor if it is supported by a preponderance of the evidence. State v. Crisp, 126 N.C. App. 30, 41, 483 S.E.2d 462, 469, disc. review denied, 346 N.C. 284, 487 S.E.2d 559 (1997) (citation omitted). A defendant seeking to establish the existence of a statutory mitigating factor bears the burden of proving that factor s existence. Id. Also, the 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) (quoting State v. Ahearn, 307 N.C. 584, 596, 300 S.E.2d 689, 697 (1983)). A trial judge errs in the event that he or she fails to find a statutory mitigating factor when evidence of its existence is both uncontradicted and manifestly credible. State v. Jones, 309 N.C. 214, 220, 306 S.E.2d 451, 456 (1983). Thus[,] when a defendant argues that the trial court erred in failing to find a statutory mitigating factor proved by uncontradicted evidence, he is asking the court to conclude that the evidence so clearly establishes the fact in issue that no reasonable inferences to the contrary can be drawn, and that the credibility of the evidence is manifest as a matter of law. State v. Parker, 315 N.C. 249, 255, 337 S.E.2d 497, 500 (1985) (quoting State v. Jones, 309 N.C. at 219, 306 S.E.2d at 455). The weight to be given to aggravating and
-8- mitigating factors[, on the other hand,] is within the sound discretion of the trial judge and will not be disturbed on appeal absent abuse of that discretion. State v. Black, 197 N.C. App. 731, 737, 678 S.E.2d 689, 693 (citing State v. Love, 177 N.C. App. 614, 626, 630 S.E.2d 234, 242-43, disc. review denied, 360 N.C. 580, 636 S.E.2d 192-93 (2006)), appeal dismissed, 363 N.C. 657, 685 S.E.2d 108 (2009). A thorough review of the record demonstrates that the trial court did not err by refusing to find the existence of the four statutory mitigating factors addressed in Defendant s brief. Although Defendant did make an attempt to present evidence tending to show the existence of each of the requested mitigating factors, that evidence was not so manifestly credible and uncontradicted as to have compelled the trial court to find the existence of each of these factors. First, we conclude that Defendant did not present sufficient evidence to compel a finding that he had been a person of good character and had a good reputation in the community. When 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 and may be proved by specific acts as well as by the opinions of others as to the defendant s reputation. State v. Murphy, 152 N.C. App. 335, 345,
-9-567 S.E.2d 442, 448, disc. review denied, 356 N.C. 442, 573 S.E.2d 161 (2002) (twenty-four letters did not compel a finding of the good character statutory mitigating factor) (citation omitted). [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). The evidence that Defendant proffered in support of the good character statutory mitigating factor took the form of the testimony by his wife and another relative and letters of support submitted by two other relatives. Although this evidence certainly tended to support Defendant s claim to be a person of good character, it was not so manifestly credible as to compel the trial court to find the existence of the good character statutory mitigating factor. Secondly, we conclude that the record did not compel the trial court to find that Defendant accepted responsibility for his criminal conduct. A defendant accepts responsibility for [his] criminal conduct when he accepts that he is answerable [for]... the result of his criminal conduct. State v. Godley, 140 N.C. App. 15, 28, 535 S.E.2d 566, 576 (2000) (citation omitted), disc. review denied, 353 N.C. 387, 547 S.E.2d 25, cert. denied, 532 U.S. 964, 149 L. Ed. 2d 384, 121 S. Ct. 1499 (2001). A defendant s apology at a sentencing hearing does not lead to the sole inference that the defendant has accepted responsibility for the defendant s criminal
-10- conduct. State v. Meynardie, 172 N.C. App. 127, 133, 616 S.E.2d 21, 25 (2005) (citing State v. Norman, 151 N.C. App. 100, 106, 564 S.E.2d 630, 634 (2002)), aff=d in part, remanded in part, 361 N.C. 416, 646 S.E.2d 530 (2007). Although Defendant voluntarily spoke to investigating officers and admitted that he had abused Sarah, he refused to sign a written statement that memorialized his admissions during that interview. In addition, Defendant entered an Alford plea, which we have previously held militates against finding that defendant accepted responsibility for his conduct because it indicates a reluctance to take full responsibility for his criminal conduct. Meynardie, 172 N.C. App. at 134, 616 S.E.2d at 26. Finally, while Defendant apologized to the trial court for his conduct at the sentencing hearing, he never explicitly stated that he had abused Sarah or acknowledged responsibility for the harm he had caused. As a result, we hold that the trial court did not err by failing to find the existence of this statutory mitigating factor. Thirdly, we find that the record did not compel the trial court to find that Defendant had enrolled in or successfully completed a substance abuse treatment program. At the sentencing hearing, Defendant s trial counsel asserted that his client had entered into general psychological counseling for anxiety as it relates to the charges but also for depression. Defendant s trial counsel candidly conceded that [d]rugs and alcohol is not an issue in this
-11- particular case, but he has sought out some help, some counseling, and - to deal with that. The record simply does not show that Defendant is currently involved in or has successfully completed a drug treatment program or an alcohol treatment program subsequent to arrest and prior to trial. At most, the record evidence tends to show that, as part of counseling intended to address anxiety and depression-related issues, the counselor had touched upon substance abuse issues. As a result, the record does not compel a finding that the substance abuse treatment statutory mitigating factor existed in this case. State v. Hilbert, 145 N.C. App. 440, 444-45, 549 S.E.2d 882, 885 (2001) (holding that a defendant s uncontradicted evidence that he attended a twenty-one day in-patient treatment program compelled a finding that this mitigating factor existed). Finally, we hold that the trial court did not err by failing to find that Defendant has a support system in the community. As this Court has previously held: Testimony demonstrating the existence of a large family in the community and support of that family alone is insufficient to demonstrate the separate mitigating factor of a community support system. 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.
-12- State v. Kemp, 153 N.C. App. 231, 241-42, 569 S.E.2d 717, 723 (citing State v. Maness, 321 N.C. 454, 463, 364 S.E.2d 349, 353-54 (1988)), disc. review denied, 356 N.C. 441, 573 S.E.2d 158 (2002). As was the case in Kemp, the evidence that Defendant presented in support of his request that the trial court find the existence of the support system statutory mitigating factor consisted of testimony by and letters from members of his family. Such evidence does not, as we have previously held, compel a trial judge to find the existence of the support system statutory mitigating factor. Thus, we hold that the trial court did not err by failing to find the good character, acceptance of responsibility, substance abuse treatment, and support system statutory mitigating circumstances prior to entering judgment. Defendant has not advanced any other challenge to the trial court s decision to sentence Defendant from the aggravated range aside from its failure to find these statutory mitigating factors. As a result, since none of Defendant s challenges to the trial court s sentencing decision have merit, we conclude that the trial court s judgment should be, and hereby is, affirmed. AFFIRMED. Judges STEPHENS and BEASLEY concur. Reported per Rule 30(e).