STATE OF NORTH CAROLINA
v
.
Buncombe County
No. 01 CRS 61239
TRINITY STERLING OSTEEN,
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General
Patricia A. Duffy, for the State.
Eric A. Bach, for defendant-appellant.
HUDSON, Judge.
On 8 September 2001, defendant Trinity Osteen was arrested and
charged with driving while impaired pursuant to G.S. . 138.1 and
misdemeanor child abuse pursuant to G.S. . 14-318.2. Following a
bench trial at the 11 March 2003 Criminal Session of Superior Court
in Buncombe County, the court found defendant guilty as charged.
At sentencing, counsel for defendant stipulated that defendant was
a Level One for sentencing on the DWI conviction pursuant to G.S.
. 20-179(c), and the trial court thereupon sentenced defendant to
a minimum of 24 months imprisonment. See G.S. . 20-179(g). On the
misdemeanor child abuse conviction, the trial court sentenced
defendant to 120 months imprisonment, to run concurrently with theDWI sentence. Defendant appeals, contending that the trial court
erred by using an element of a joined offense as proof an
aggravating factor. For the following reasons, we find no error.
The pertinent evidence tended to show that on 8 September 2001
at approximately 12:50 a.m., Lt. Don Frazier of the Buncombe County
Sheriff's Department, was in an unmarked police vehicle in a
grocery store parking lot in Asheville. He noticed a 1980's model
“Firebird or Camaro” enter the parking lot at a speed greater than
most cars. As the vehicle passed, Lt. Frazier observed defendant
sitting in the front passenger seat “raising a container to his
lips in a drinking-type motion.” Because he suspected the
passenger to be drinking an alcoholic beverage, he followed the car
around the grocery store building. Lt. Frazier temporarily lost
sight of the car, and when he finally reacquired sight of it, he
noticed defendant was now in the driver's seat. Lt. Frazier
approached the car, and noticed a strong smell of alcohol emanating
from inside the car. Defendant stepped out of the car, and Lt.
Frazier noticed that defendant was unsteady, had bloodshot eyes and
his voice was slurred. Lt. Frazier arrested defendant for DWI.
While continuing his investigation, Lt. Frazier looked in the
backseat and observed a fourteen or fifteen month old baby boy in
a child car seat. He also saw a half-empty bottle of beer in
between the two front seats and several empty beer bottles on the
rear floor. Lt. Frazier also found two unopened bottles of beer in
the baby's diaper bag. Thereafter, Lt. Frazier called theSheriff's Department and requested that the State Highway Patrol be
dispatched to the scene.
Trooper Brian Tucker arrived at the scene at approximately
1:20 a.m. Trooper Tucker corroborated Lt. Frazier's observations
regarding defendant's impaired faculties, the presence of the child
in the car and the presence of opened and unopened beer bottles in
the car. Trooper Tucker transported defendant to the Buncombe
County Detention Facility, where he advised defendant of his
Miranda rights and administered a breathalizer test. The results
of the test indicated that defendant's blood alcohol concentration
was 0.17.
Defendant's sole argument is that the trial court erred in
sentencing him for misdemeanor child abuse and finding as a grossly
aggravating factor in the DWI sentence that he was driving while
impaired while a child under the age of sixteen was present in the
car. Defendant contends that the use of an element of an offense
to prove a factor in aggravation of a joined offense constitutes
double jeopardy. For the following reason, we do not reach the
merits of defendant's argument.
In State v. Degree, 110 N.C. App. 638, 430 S.E.2d 491 (1993),
this Court held that:
It is the general rule that failure to object to an
alleged error in the trial court waives the consideration
of such error on appeal. When a defendant has failed to
object to an alleged error, but contends that an
exception by rule or law was deemed preserved or taken
without an objection at trial it is the defendant's
burden to establish his right to appellate review by
showing that the exception was preserved by rule or law
or that the error alleged constitutes plain error.
Defendant may carry this burden by alert[ing] theappellate court that no action was taken by counsel at
trial and then establish[ing] his right to review by
asserting the manner in which the exception was preserved
or how the error may be noticed although not brought to
the attention of the trial court. If defendant fails to
comply with these requirements, his right to appellate
review is waived.
Id. at 642, 430 S.E.2d at 494 (internal citations and quotation
marks omitted).
The Court in Degree held that the defendant had waived his
right to appellate review because he failed to object at the
sentencing hearing to the trial court's consideration of the
aggravating factor, failed to give this Court notice of his failure
to object, and failed to establish that any rule or law would
preserve his assignment of error without an objection. Id. at 643,
430 S.E.2d at 494.
Here, defendant failed to object to the trial court's finding
that he was a Level One offender for DWI sentencing purposes.
Indeed, quite to the contrary, defendant actually agreed to the
sentencing level when he stipulated that he was a Level One
offender. During the sentencing hearing, the following exchange
occurred between the prosecutor and defense counsel:
[Prosecutor]: As to the DWI, would you (defense counsel)
stipulate that he's a level one? He has one specifically
convicted on January 23rd of 1997, Transylvania County,
and that as another grossly aggravating factor he has a
child under the age of 16 in his motor vehicle at the
time of the offense?
[Defense Counsel]: We can stipulate he's a level one for
the DWI sentencing.
Further, defendant did not establish that any rule or law
preserved his assignment of error. Thus, his right to appellate
review on this issue is waived.
No error.
Judges MCCULLOUGH and LEVINSON concur.
Report per Rule 30(e).
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