Opinion
No. 8818SC884
Filed 15 August 1989
Criminal Law 138.15 — guilty plea — aggravating factors — position of trust — guilt of greater crime — prosecutor's statement of evidence The prosecutor's summary of the State's evidence upon defendant's guilty plea to attempted first degree sexual offense was sufficient to support the trial court's findings as factors in aggravation that defendant took advantage of a position of trust and that defendant was in fact guilty of the greater crime of first degree sexual offense where defense counsel's admission of the correctness of that summary in his own statement to the court constituted an admission by defendant that he had placed his penis in the mouth of the five-year-old niece whom he bathed, fed and took care of and with whom he lived. Moreover, because he failed to object to the district attorney's summary of the evidence offered upon his guilty plea, defendant waived his right to appeal any possible error regarding the evidence.
APPEAL by defendant from Morgan (Melzer A.), Judge. Judgment entered 21 March 1988 in Superior Court, GUILFORD County. Heard in the Court of Appeals 21 March 1989.
Attorney General Lacy H. Thornburg, by Assistant Attorney General David Gordon, for the State.
Assistant Public Defender Frederick G. Lind for defendant appellant.
Judge GREENE dissenting.
Defendant was indicted for a first degree sexual offense with a child under the age of thirteen. In exchange for his guilty plea to attempted first degree sexual offense the State agreed to reduce the charge and dropped an indecent liberties charge.
After a thorough and complete discussion of the plea negotiation with defendant and the defendant's plea of guilty, the trial judge asked for evidence from the State. The prosecuting attorney began by stating, "With the permission of the Court and the Defense I will summarize what the State's evidence will show." She then summarized that defendant stuck his penis in the mouth of his five-year-old niece who lived in his home and whom defendant took care of by bathing her, washing her hair, and feeding her. In a statement to Officer Long, defendant admitted all of this.
Defendant remained silent, made no objection or motion throughout this statement of the State's evidence.
The court then asked, "Evidence for the defendant?" Counsel for defendant began by saying, "If it please the Court, I too would [not] like to delay our being heard and would present our evidence to the Court with the permission of the State." Counsel then summarized defendant's evidence in part as follows:
. . . And evidently he lived there with his mother and sister would leave her child there and his mother would be there and his sister would go off and be gone for long periods of time, and sometimes she would not come home after work. And his mother might go and see some neighbors and come back later and sometimes later and later, and it was pretty much evident that he was stuck with care of the child. Of course that is not any excuse for his doing this. He told the Officer he was sorry, sorry for committing the offense. . . .
Following arguments by counsel the trial court found three mitigating factors and the following aggravating factors:
(14) The defendant took advantage of a position of trust or confidence to commit the offense and, (16) The element of the greater offense of first degree sexual offense to which attempted first degree sexual offense is a lesser included offense was present here, to wit: there was actual penetration of the oral cavity of the five year old victim by the penus (sic) of the defendant.
The trial court concluded that the aggravating factors outweighed the mitigating factors and committed defendant for a period of 8 years greater than the presumptive term.
Counsel for defendant who was also counsel at trial enigmatically now argues on appeal that since there was no formal stipulation at the sentence hearing "the prosecutor's mere assertion of the evidence in a statement to the court is totally insufficient to support the findings in aggravation."
Defendant, citing cases such as State v. Powell, 254 N.C. 231, 118 S.E.2d 617 (1961), points out that while there is no particular form to be followed for a stipulation, the terms, nevertheless, must be definite and certain, and must be assented to by the parties.
A good case could be made on this record that there are no terms or issues which are not definite and certain. And, unlike Powell, there are no issues present here which are controverted by a not guilty plea. Furthermore, the Powell decision says silence is not an assent "unless the solicitor specifies that assent has been given." (Emphasis added.) Powell at 235, 118 S.E.2d at 620. However, it is unnecessary to discuss formal stipulations in this appeal.
Rather than characterize the prosecuting attorney's summary of the evidence as a "mere assertion" it is more appropriate to focus on the fact that defense counsel admitted the correctness of that summary in his own statement to the court. See State v. Jones, 309 N.C. 214, 306 S.E.2d 451 (1983). The message communicated to the trial court by defendant, through counsel, was very clear by conduct, syntax and vocabulary, and if not a stipulation, it was certainly an admission that defendant in fact stuck his penis in the mouth of the five-year-old niece whom he bathed, fed and took care of, and with whom he lived.
Therefore, there was sufficient evidence to support the findings in aggravation. See State v. Daniel, 319 N.C. 308, 354 S.E.2d 216 (1987), and State v. Melton, 307 N.C. 370, 298 S.E.2d 673 (1983).
Moreover, because he failed to object to the district attorney's summary of the evidence offered upon his guilty plea, defendant has waived his right now to appeal any possible error regarding this evidence. State v. Bradley, 91 N.C. App. 559, 373 S.E.2d 130 (1988), disc. rev. denied, 324 N.C. 114, 377 S.E.2d 238 (1989).
Affirmed.
Judge LEWIS concurs.
Judge GREENE dissents.