Opinion
No. 07-821.
Filed February 5, 2008.
Forsyth County, No. 06 CRS 57052.
Appeal by defendant from judgment entered 13 February 2007 by Judge Stuart Albright in Forysth County Superior Court. Heard in the Court of Appeals 10 January 2008.
Attorney General Roy Cooper, by Special Deputy Attorney General R. Marcus Lodge, for the State. Nora Henry Hargrove, for defendant-appellant.
Charles Gray Payne ("defendant") appeals from judgment entered after a jury found him to be guilty of second-degree sexual offense pursuant to N.C. Gen. Stat. § 14-27.5(a). We find no error.
I. Background
On 31 July 2006, defendant was indicted on one count of second-degree sexual offense. The indictment stated that on 11 June 2006 defendant "unlawfully, willfully and feloniously . . . engage[d] in a sex offense with [C.M.W.] by force and against that victim's will." On 13 December 2006, the State and defendant presented a plea agreement to the trial court.
The plea agreement stated defendant would plead guilty to second-degree kidnapping and sexual battery in exchange for a dismissal of his second-degree sexual assault charge. The trial court rejected the plea agreement. The trial court stated, "The Court is not satisfied upon the record, the evidence presented, answers of the defendant, statements of the attorneys, and the prosecuting witness that this plea is freely, voluntarily and understandingly given. . . ."
Defendant's trial began on 12 February 2007. On 13 February 2007, a jury found defendant to be guilty of second-degree sexual offense. The jury did not find the existence of the aggravating factor of "[taking] advantage of a position of trust or confidence (which includes a domestic relationship) to commit the offense." The trial court found defendant to have a prior record level of II and sentenced him to a minimum of 100 and a maximum of 129 months incarceration. Defendant appeals.
II. Issues
Defendant argues the trial court erred when it: (1) rejected his plea agreement; (2) failed to find the existence of mitigating factors; and (3) failed to instruct the jury on sexual battery.
III. Rejection of Plea Agreement
Defendant argues the trial court erred when it "reject[ed] [his] plea as not being freely, voluntarily or understandingly given because the evidence does not support the ruling."
Defendant raises this issue for the first time on appeal. The transcript of the 13 December 2006 hearing is devoid of any objection, exception, or any reaction to the trial court's rejection of the plea agreement. The record and transcripts show no effort by defendant to renew his plea, request reconsideration of the earlier rejection, or to object or register any dissatisfaction with the trial court's rejection of the proposed plea agreement. Neither the transcript of defendant's 12 February 2007 trial nor the record on appeal provide any indication that this issue was ever raised prior to this appeal.
"In order to preserve a question 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 the specific grounds were not apparent from the context."
N.C.R. App. P. 10(b)(1) (2008). Defendant has failed to properly preserve this assignment of error as a result of his failure to object to the trial court's rejection of his plea agreement. See State v. Williams, 154 N.C. App. 466, 468-69, 572 S.E.2d 213, 215 (2002) ("Even if we were to accept defendant's contention that a plea agreement was in fact reached, defendant made no objection to proceeding with the trial of his case. As such, defendant has failed to properly preserve this argument on appeal."), aff'd, 357 N.C. 503, 586 S.E.2d 89 (2003). This assignment of error is dismissed.
IV. Mitigating Factors
Defendant argues the trial court erred when it failed to find the existence of mitigating factors. We disagree.
The trial court possesses the discretion to determine whether or not to impose a mitigated sentence. N.C. Gen. Stat. § 15A-1340.16(b) (2007). It is well established that the trial court "is not required to consider evidence of aggravation or mitigation unless it deviates from the presumptive range. . . ." State v. Taylor, 155 N.C. App. 251, 267, 574 S.E.2d 58, 69 (2002) (internal citations omitted), cert. denied, 357 N.C. 65, 579 S.E.2d 572 (2003). "The [trial] 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)." N.C. Gen. Stat. § 15A-1340.16(c) (2007).
Defendant was sentenced within the presumptive range authorized for the offense of second-degree sexual offense. While the jury rejected an aggravating factor and defendant presented evidence of mitigation, the trial court was not required to find the existence of any mitigating factors to enter a presumptive sentence. This assignment of error is overruled.
V. Sexual Battery
Defendant argues the trial court erred when it failed to instruct the jury on "sexual battery as a lesser included offense." We disagree.
As a lesser included offense, "all of the essential elements of the lesser crime must also be essential elements included in the greater crime." State v. Weaver, 306 N.C. 629, 635, 295 S.E.2d 375, 379 (1982), overruled in part on other grounds by State v. Collins, 334 N.C. 54, 61, 431 S.E.2d 188, 193 (1993); see also Black's Law Dictionary 1111 (8th ed. 2004) (defining a lesser included offense as "[a] crime that is composed of some, but not all, of the elements of a more serious crime and that is necessarily committed in carrying out the greater crime"). State v. Hinton, 361 N.C. 207, 210, 639 S.E.2d 437, 439-40 (2007).
N.C. Gen. Stat. § 14-27.5 (2007) defines second-degree sexual offense as:
(a) A person is guilty of a sexual offense in the second degree if the person engages in a sexual act with another person:
(1) By force and against the will of the other person; or
(2) Who is mentally disabled, mentally incapacitated, or physically helpless, and the person performing the act knows or should reasonably know that the other person is mentally disabled, mentally incapacitated, or physically helpless.
N.C. Gen. Stat. § 14-27.5A (2007) defines sexual battery as:
(a) A person is guilty of sexual battery if the person, for the purpose of sexual arousal, sexual gratification, or sexual abuse, engages in sexual contact with another person:
(1) By force and against the will of the other person; or
(2) Who is mentally disabled, mentally incapacitated, or physically helpless, and the person performing the act knows or should reasonably know that the other person is mentally disabled, mentally incapacitated, or physically helpless.
All of the essential elements of sexual battery are not also essential elements included in second-degree sexual offense. Second-degree sexual offense does not require a person to engage in sexual contact with another person "for the purpose of sexual arousal, sexual gratification, or sexual abuse. . . ." N.C. Gen. Stat. § 14-27.5A; N.C. Gen. Stat. § 14-27.5. Based on our Supreme Court's holding in Hinton, sexual battery is not a lesser included offense of second-degree sexual offense. 361 N.C. at 210, 639 S.E.2d at 439-40. This assignment of error is overruled.
VI. Conclusion
Defendant failed to properly preserve his assignment of error that the trial court erroneously rejected his plea agreement. This alleged error is not subject to plain error review. See State v. Greene, 351 N.C. 562, 566, 528 S.E.2d 575, 578 ("[P]lain error analysis applies only to instructions to the jury and evidentiary matters." (Citation omitted)), cert. denied, 531 U.S. 1041, 148 L. Ed. 2d 543 (2000). The trial court imposed defendant's sentence within the presumptive range and did not err when it failed to find mitigating factors. Taylor, 155 N.C. App. at 267, 574 S.E.2d at 69.
Sexual battery is not the lesser included offense of second-degree sexual offense. The essential elements of the two crimes are different. Hinton, 361 N.C. at 210, 639 S.E.2d at 439-40. The trial court did not err when it failed to instruct the jury on sexual battery. Defendant received a fair trial free from the errors he preserved, assigned, and argued. We find no error.
No error.
Judges JACKSON and ARROWOOD concur.
Report per Rule 30(e).