IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA24-1038
Filed 5 November 2025
Wake County, No. 20CR210836-910
STATE OF NORTH CAROLINA
v.
ALEXANDER GANDARILLA DE LOSSANTOS
Appeal by defendant from judgment entered 27 April 2022 by Judge A. Graham
Shirley in Wake County Superior Court. Heard in the Court of Appeals 21 May 2025.
Attorney General Jeff Jackson, by Special Deputy Attorney General Zachary K. Dunn, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender David S. Hallen, for defendant.
FREEMAN, Judge.
Defendant appeals from judgment entered upon a jury verdict finding him
guilty of second-degree murder. On appeal, defendant argues: (1) the trial court’s
finding of the aggravating sentencing factor that defendant took advantage of a
position of trust or confidence to commit the crime was not adequately supported by
the evidence, and (2) his trial counsel rendered ineffective assistance by advising him
to accept an open plea to aggravating sentencing factors. After careful review, we
conclude the trial court did not err in finding the position of trust or confidence
aggravating factor and we dismiss defendant’s ineffective assistance of counsel claim STATE V. DE LOSSANTOS
Opinion of the Court
without prejudice.
I. Factual and Procedural Background
On the evening of 15 July 2020, defendant, who was eighteen years old at the
time, was drinking alcohol at a friend’s house near downtown Apex. At some point
in the evening, defendant posted a photo of a girl he “was going to meet up with” to
Snapchat and defendant’s recent ex-girlfriend, seventeen-year-old Alexia Carrilo-
Vicencio, began messaging defendant on Snapchat about the photo. Alexia was upset
with defendant and asked him what he was doing in Apex.
Around 1:00 a.m., defendant left his friend’s house and began driving to his
home in Raleigh. When defendant “was about to hit the highway,” he changed his
mind about going home and decided to go “over to Alexia’s house to apologize” because
he knew he “messed up by posting another girl.” Defendant parked by the garage,
the place he always parked when visiting Alexia’s home, because it could not be seen
from the front of the house and “was like a blind spot.”
Defendant entered the home “the same way [he] always” did during his
relationship with Alexia, through an unlocked sliding glass door at the back of the
home. Defendant was carrying a loaded 9mm handgun in his waistband, a gun he
“always” carried on him because he feared Alexia’s stepfather seeing him and because
defendant “was selling drugs” and “had to protect [him]self.” Alexia did not know
defendant was visiting her home that evening.
Defendant proceeded through the home and opened another door that was
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“always open” on his way to Alexia’s bedroom. When defendant reached Alexia’s
bedroom door, he paused outside it because he heard Alexia speaking to one of her
friends on the phone. Defendant overheard Alexia, who was unaware of defendant’s
presence outside her bedroom door, tell her friend that she had engaged in a
relationship “with one of [defendant’s] best friends.” Defendant then entered Alexia’s
bedroom.
Alexia, who was “surprised when she saw [defendant] inside her house,” got up
from her bed and leaned against her doorframe. Defendant kissed Alexia on the
forehead, and Alexia left defendant alone in her bedroom while she went to use the
restroom. Alexia returned after about two minutes, and defendant began arguing
with her about what she told her friend. Defendant then punched Alexia in the face
and shot her three times.
The sound of the gunshots woke Alexia’s stepfather, Terrence James, who
rushed to Alexia’s bedroom and saw defendant kneeling over Alexia’s body. Mr.
James called 911 and waited outside for the police to arrive. Around 2:15 a.m., Officer
Hector Alonso of the Angier Police Department arrived at the home and spoke with
Mr. James outside. Mr. James informed Officer Alonso that Alexia was in her
bedroom but that he did not know where defendant was, so Officer Alonso retrieved
a shotgun from his patrol car and entered the home to clear the scene for medical
personnel to enter.
Upon entering the home, Officer Alonso heard Alexia moaning and located
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Alexia lying face down on the floor of her bedroom. Officer Alonso observed shell
casings and some of Alexia’s teeth on the floor beside her. Medical personnel
transported Alexia to a nearby hospital where she later succumbed to her injuries.
Defendant, who had fled the scene prior to law enforcement’s arrival, was arrested in
Mexico two months later.
On 29 September 2020, a Wake County grand jury indicted defendant on one
count of murder and on 18 April 2022, defendant’s matter came on for trial in Wake
County Superior Court. On 27 April 2022, the jury found defendant not guilty of first-
degree murder but guilty of the lesser-included offense of second-degree murder.
During the sentencing phase, defendant pleaded guilty to two aggravating
factors: using a deadly weapon at the time of the crime and taking advantage of a
position of trust or confidence to commit the crime. The trial court accepted
defendant’s plea to the factor that defendant took advantage of a position of trust or
confidence and determined that the evidence supported such factor beyond a
reasonable doubt.1 The trial court found two mitigating factors, found that the
aggravating factors outweighed the mitigating factors, and sentenced defendant to
an aggravated sentence of 300 to 372 months in prison.
Defendant did not timely appeal but filed a petition for writ of certiorari in this
Court on 17 November 2023. On 19 March 2024, this Court allowed defendant’s
1 The trial court did not consider the aggravating factor that defendant used a deadly weapon
at the time of the crime as it determined such factor was “an element of the crime.”
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petition for writ of certiorari to review the 27 April 2022 judgment of the Wake
County Superior Court.
II. Jurisdiction
This Court has jurisdiction to consider defendant’s appeal pursuant to our 19
March 2024 order allowing defendant’s petition for writ of certiorari. See N.C.G.S.
§ 15A-1444(g) (2023); N.C. R. App. P. 21.
III. Standard of Review
We review alleged sentencing errors to determine “whether the sentence is
supported by evidence introduced at the trial and sentencing hearing.” State v.
Patterson, 269 N.C. App. 640, 645 (2020) (cleaned up). “Whether the sentence is
supported by sufficient evidence is a question of law we review de novo.” Id. (cleaned
up).
IV. Discussion
On appeal, defendant contends: (1) the trial court’s finding of the aggravating
sentencing factor was not supported by sufficient evidence, and (2) his trial counsel
rendered ineffective assistance by advising him to accept an open plea to the
aggravating factors. We address each argument in turn.
A. Aggravating Factor
Defendant first argues the trial court’s finding of the aggravating sentencing
factor that defendant took advantage of a position of trust or confidence to murder
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Alexia was not supported by sufficient evidence. 2 Specifically, defendant contends
there was “not a factual basis to support either the claim that [defendant] and Alexia
occupied a position of trust with respect to one another” or, if a position of trust or
confidence did exist, “that [defendant] exploited such a position to murder Alexia.”
“The State has the burden of proof to establish the existence of an aggravating
factor beyond a reasonable doubt.” Patterson, 269 N.C. App. at 645 (citing N.C.G.S.
§ 15A-1340.16(a) (2019)). Where, as here, a defendant admits “to the existence of an
aggravating factor,” such admission “must be consistent with the provisions of G.S.
15A-1022.1.” N.C.G.S. § 15A-1340.16(a1) (2023). Accordingly, prior to accepting a
defendant’s admission to an aggravating factor, the trial court must “determine that
there is a factual basis for the admission.” N.C.G.S. § 15A-1022.1(c) (2023). The trial
court may base this determination “on the factors specified in G.S. 15A-1022(c), as
well as any other appropriate information.” Id.
This determination [of a factual basis] may be based upon information including but not limited to:
(1) A statement of the facts by the prosecutor.
(2) A written statement of the defendant.
(3) An examination of the presentence report.
(4) Sworn testimony, which may include reliable hearsay.
2 In the sentencing context, defendant’s plea and stipulation to this aggravating factor does
not preclude appellate review of whether such factor was supported by sufficient evidence. See State v. Khan, 366 N.C. 448 (2013); State v. Bacon, 228 N.C. App. 432 (2013).
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(5) A statement of facts by the defense counsel.
N.C.G.S. § 15A-1022(c) (2023). “[T]he trial judge has wide latitude in determining
the existence of aggravating and mitigating factors, for it is ‘he [or she] who observes
the demeanor of the witnesses and hears the testimony.’ ” State v. Canty, 321 N.C.
520, 524 (1988) (quoting State v. Ahearn, 307 N.C. 584, 596 (1983)).
One of the statutory aggravating factors is that the “defendant took advantage
of a position of trust or confidence, including a domestic relationship, to commit the
offense.” N.C.G.S. § 15A-1340.16(d)(15). “A finding of this aggravating factor
depends on ‘the existence of a relationship between the defendant and victim
generally conducive to reliance of one upon the other.’ ” State v. Helms, 373 N.C. 41,
44 (2019) (quoting State v. Daniel, 319 N.C. 308, 311 (1987)).
Our courts “have upheld a finding of the ‘trust or confidence’ factor in very
limited factual circumstances.” Id. “Specifically, we have upheld this aggravating
where the relationship was between the defendant and the victim[.]” Id. A
relationship in which the victim trusted the defendant “in the same way she might
trust any adult acquaintance” is “insufficient to support this aggravating factor.” Id.
Further, the mere existence of a recent or ongoing romantic relationship, standing
alone, is insufficient. The defendant must “utilize that position of trust or confidence
. . . in some way to effectuate the offense.” State v. Myers, 238 N.C. App. 133, 139
(2014). In other words, this aggravating factor may be properly supported where
“[b]ut for the relationship between defendant and the victim, . . . the crime[ ] against
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the victim could not have been carried out[.]” State v. Wiggins, 159 N.C. App. 252,
268 (2003).
Defendant relies on State v. Myers, State v. Marecek, and State v. Arnold, to
support his contentions that: (1) no position of trust or confidence existed between
defendant and Alexia, and (2) even if such position did exist, there was insufficient
evidence to support the aggravating factor because there must be “deception and
exploitation of trust to establish sufficient evidence for the aggravating factor in a
relational setting.”
In Myers, the defendant and the victim had been married for eighteen years
and shared a home together. 238 N.C. App. at 139. The victim was shot “while not
directly facing” the defendant, and the State argued that this aggravating factor was
satisfied because the victim “had no reason to distrust” the defendant “immediately
before he fired the gun.” Id. This Court disagreed and concluded the aggravating
factor was not supported because “there [wa]s no evidence that [d]efendant asked [the
victim] to face away from him before firing the pistol, or that he otherwise utilized
his position of trust or confidence . . . to effectuate her death.” Id.
In State v. Marecek, the victim had “discovered some letters that she thought
indicated her husband,” the defendant, “was having an affair with a woman in
Czechoslovakia.” 152 N.C. App. 479, 482 (2002). The couple planned to go on a trip
to Fort Fisher, and the victim indicated to a friend “that she did not want to go” and
stated that “she was afraid she might not return.” Id. at 483. The defendant
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murdered his wife on the trip, and at sentencing, the trial court found the aggravating
factor that the defendant took advantage of a position of trust of confidence to commit
the crime. Id. at 513. This Court concluded the trial court erred in finding this factor
because the evidence “suggest[ed] that [the victim] distrusted defendant and feared
him” and because “[t]here was no evidence showing that defendant exploited his
wife’s trust in order to kill her.” Id. at 514.
In contrast, our Supreme Court held there was sufficient evidence to support
the trial court’s finding of the aggravating factor that the defendant took advantage
of a position of trust or confidence to commit the offense in State v. Arnold, 329 N.C.
128, 144 (1991). There, the defendant and a man she had a relationship with planned
her husband’s murder and she was later convicted of second-degree murder and
conspiracy to commit murder. Id. at 130–32. On appeal, the defendant’s conviction
for second-degree murder was vacated but her conviction for conspiracy and the trial
court’s finding of the aggravating factor were upheld. Id. at 130–31, 144. Our
Supreme Court determined such finding was supported by evidence that the victim
believed the defendant had “come to her senses and ended her relationship” with the
other man. Id. at 144 (cleaned up).
Here, defendant first argues that no position of trust or confidence existed
between defendant and Alexia because, as in the relationship at issue in Marecek,
there was evidence of hostility and distrust between them. We disagree. Although
the evidence in this case demonstrated a relatively volatile, but not entirely atypical,
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teenage romance that included breakups and reconciliations, Alexia’s behavior on the
night of her murder did not evidence distrust of defendant.
When defendant showed up unannounced and uninvited at her bedroom door
in the middle of the night, Alexia was surprised to see him but did not exhibit any
behavior manifesting distrust or fear. Rather than asking defendant to leave, calling
for help, or attempting to hide or flee, Alexia allowed defendant to kiss her on the
forehead, left the room to use the restroom, and then willingly returned to her
bedroom to rejoin defendant. This behavior, coupled with defendant’s intimate
knowledge of Alexia’s home and his habitual use of clandestine methods to access her
bedroom, satisfies us that a position of trust or confidence existed between defendant
and Alexia.
Defendant next contends there was insufficient evidence that he exploited a
position of trust or confidence to commit the crime because the cited cases establish
there must be “deception and exploitation of trust” to support this aggravating factor.
Again, we disagree. Though the statutory language and our precedent require a
defendant to exploit or take advantage of the relationship to commit the offense,
“deception” is not required.
Defendant appears to argue that, based on Arnold, this aggravating factor can
only be properly found where there is some sort of “carefully planned deceit” of the
victim. This argument is foreclosed by the fact that this aggravating factor can apply
to sentencing for many felony convictions, including crimes—like second-degree
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murder—that do not require premeditation or “carefully planned deceit.” Our
precedent establishes that the relevant question is not whether the defendant
carefully planned to use the position of trust or confidence to deceive the victim, but
whether the defendant “utilize[d] that position of trust or confidence . . . in some way
to effectuate the offense.” Myers, 238 N.C. App. at 139 (emphasis added); see also
Wiggins, 159 N.C. App. at 268–69 (concluding that the factor was properly supported
where “[b]ut for the relationship between defendant and the victim, . . . [t]he crimes
against the victim could not have been carried out[.]”).
Here, the evidence establishes that, but for the position of trust or confidence
that existed between defendant and Alexia, the crime could not have been carried out
as it was. Defendant “utilize[d] that position of trust or confidence . . . to effectuate
the offense,” Myers, 238 N.C. at 139, by parking in a “blind spot” he knew of due to
his relationship with Alexia and taking advantage of his knowledge of the home’s
layout and the family’s habits to proceed through the home without alerting its
inhabitants. If Alexia only trusted defendant “in the same way she might trust any
adult acquaintance,” Helms, 373 N.C. at 44, she would have reacted with fear and
panic when he showed up unannounced at her bedroom door around 2:00 a.m.
Instead, because she trusted defendant, she let him enter her room without
raising the alarm. Alexia’s trust in defendant allowed him to remain undetected by
the other members of her family until her stepfather was awoken by the sound of
defendant fatally shooting Alexia. This evidence was sufficient to support a finding
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that “defendant took advantage of a position of trust or confidence . . . to commit the
offense,” N.C.G.S. § 15A-1340.16(d)(15), and the trial court did not err in finding this
aggravating factor.
B. Ineffective Assistance of Counsel
Defendant next argues that his trial counsel rendered ineffective assistance by
advising him to accept an open plea to the aggravating factors that he used a deadly
weapon at the time of the crime and took advantage of a position of trust or confidence
to commit the crime. Specifically, defendant contends his counsel rendered
ineffective assistance because: (1) “[p]leading guilty to aggravating factors without
some form of agreed-upon benefit is not a reasonable tactical decision,” and (2)
defendant was prejudiced as “the jury could have found that Alexander did not take
advantage of a position of trust or confidence to murder Alexia.”
“The Sixth Amendment to the United States Constitution guarantees to all
defendants the right to counsel in criminal proceedings.” State v. Oglesby, 382 N.C.
235, 242 (2022). “The right to counsel necessarily encompasses ‘the right to effective
assistance of counsel.’ ” Id. (quoting McMann v. Richardson, 397 U.S. 759, 771 n. 14
(1970)). “The two-part test for ineffective assistance of counsel is the same under
both the state and federal constitutions.” State v. Thompson, 359 N.C. 77, 115 (2004).
“A defendant must first show that his defense counsel’s performance was deficient,
and second, that counsel’s deficient performance prejudiced his defense.” Id.
Generally, a claim of ineffective assistance of counsel
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should be considered through a motion for appropriate relief before the trial court in post-conviction proceedings and not on direct appeal. A motion for appropriate relief is preferable to direct appeal because in order to defend against ineffective assistance of counsel allegations, the State must rely on information provided by the defendant to trial counsel at a full evidentiary hearing on the merits of the ineffective assistance of counsel claim.
...
[O]ur review is limited to the record before us, without the benefit of information provided by defendant to trial counsel, as well as defendant’s thoughts, concerns, and demeanor that could be provided in a full evidentiary hearing on a motion for appropriate relief. Particularly where [d]efendant’s arguments concern potential questions of trial strategy and counsel’s impressions, an evidentiary hearing available through a motion for appropriate relief is the procedure to conclusively determine these issues.
State v. Allen, 262 N.C. App. 284, 285–86 (2018) (cleaned up).
Here, the first prong of defendant’s ineffective assistance of counsel claim—
whether his counsel’s performance was deficient—involves “potential questions of
trial strategy and counsel’s impressions,” id. at 286, that we are unable to definitively
answer based on the record before us. The transcript sheds no light on any
discussions between defendant and his trial counsel regarding defendant’s open plea
to the aggravating factors beyond defendant’s statement to the trial court that he was
satisfied with his attorney’s legal services. Accordingly, we dismiss defendant’s
ineffective assistance of counsel claim without prejudice.
V. Conclusion
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After careful consideration of defendant’s arguments on appeal, we conclude
the evidence in this case established a sufficient factual basis to find the aggravating
factor that defendant took advantage of a position of trust or confidence to commit
the second-degree murder of Alexia and that the trial court did not err in finding such
factor. We dismiss defendant’s ineffective assistance of counsel claim without
prejudice.
NO ERROR IN PART, DISMISSED IN PART.
Judges ZACHARY and GORE concur
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