An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Proced ure.

NO. COA03-1073


Filed: 3 August 2004


v .                         Buncombe County
                            No. 01 CRS 61239

    Appeal by defendant from judgment entered 13 March 2003 by Judge James U. Downs in Superior Court of Buncombe County. Heard in the Court of Appeals 20 May 2004.

    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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