An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA05-46


Filed: 06 September 2005


         v.                        Granville County
                                No. 03 CRS 51956

    Appeal by defendant from judgment entered 17 August 2004 by Judge Ronald L. Stephens in Granville County Superior Court. Heard in the Court of Appeals 08 August 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Brian C. Wilks, for the State.

    Moshera H. Mohamed, for defendant-appellant.

    STEELMAN, Judge.

    The State's evidence tends to show that on 29 May 2003, defendant was incarcerated at Polk Youth Institution. On that day, Ms. Susan Tingen was working as a correctional officer at the facility. She was distributing supplies to the inmates, including defendant, in the highest control unit. As she stood outside defendant's cell, she signaled to him to come to the food passage door. She placed defendant's supplies on the door. Some of the supplies fell on the floor. She bent down to pick them up and when she stood upright again and re-opened the food passage door she was struck by a burst of urine and feces from defendant. She sprayed defendant with pepper spray. Defendant ran into the shower and Ms. Tingen went to the sergeant's office to report what happened. Shetook seven to eight showers in an effort to clean herself of the odor. Defendant did not present any evidence.
     The jury found defendant guilty of malicious conduct by a prisoner under N.C. Gen. Stat. § 14-258.4. The trial court sentenced defendant to thirty-five to forty-two months imprisonment. Defendant appeals.
    In defendant's first argument he contends the court erred by failing to submit a lesser included offense in the event the jury did not find that defendant emitted a bodily fluid. This contention is not properly presented for appellate review. In order to preserve this question for appellate review, defendant 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 . . . .” N.C. R. App. P. 10(b)(1) . In the instant case, defendant did not request submission of a lesser included offense, and in fact, at trial his attorney agreed that the verdict submitted should be guilty or not guilty of the charged offense, and nothing else. Moreover, defendant did not allege plain error as required by Rule 10(c)(4) of the Rules of Appellate Procedure, therefore, defendant has waived his right to appellate review of this issue.
    Second, defendant contends the trial court erred by sentencing him as a record level VI instead of a level IV, citing to the prohibition against the use of evidence necessary to prove an element of the offense to prove a factor in aggravation. See State v. Beamer, 339 N.C. 477, 485, 451 S.E.2d 190, 195 (1994). Thetrial court did not find any factors in aggravation in the case at bar and sentenced defendant from the presumptive range. This argument is without merit.
    Defendant further contends the trial court erred by sentencing him as a record level VI where he asserts that six of his sentencing points were attributable to a prior conviction which resulted in his incarceration at the time of the offense. He asserts the sentencing points for that conviction should not have been used in computing his sentencing level. Defendant failed to cite any authority in support of this proposition. See N.C. R. App. P. 28(b)(6).
    Furthermore, we find the rationale of State v. Gentry, 135 N.C. App. 107, 519 S.E.2d 68 (1999) inapplicable in this case. In Gentry, the appellate court held it was error for the trial court to use the underlying convictions, which elevate a misdemeanor driving while impaired conviction to the status of the felony of habitual driving while impaired, when computing the defendant's prior record level for sentencing. Id. at 111, 519 S.E.2d at 70- 71. The reason Gentry does not apply here is because in Gentry achieving the status of a habitual driving while impaired required a specific conviction to support the status of habitual felon. Here, all that is required to find defendant guilty was to show he was incarcerated at the time he committed the offense. Therefore, the trial court did not err in assigning defendant six points for his previous conviction.
    Defendant also contends the trial court erred in assigning onesentencing point pursuant to N.C. Gen. Stat. § 15A-1340.14(b)(7) because he was serving a sentence of imprisonment at the time he committed the offense. We need not reach this issue because the trial court found defendant to have twenty sentencing points. Even if the trial court erred in assessing this one sentencing point, defendant would still be a record level VI with nineteen sentencing points. See N.C. Gen. Stat. § 15A-1340.14(c)(6) (2004). See also State v. Adams, 156 N.C. App. 318, 324, 576 S.E.2d 377, 382 (2003). This argument is without merit.
    Chief Judge Martin and Judge Hunter concur.
    Report per Rule 30(e).

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