Appeal by defendant from judgment entered 6 December 2005 by
Judge Milton F. Fitch, Jr. in Edgecombe County Superior Court.
Heard in the Court of Appeals 16 April 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Belinda A. Smith, for the State.
Nora Henry Hargrove for defendant-appellant.
Defendant Waymon Arlington Godwyn appeals from his conviction
for statutory rape of a 15 year old under N.C. Gen. Stat. § 14-
27.7A(a) (2005). Although defendant argues on appeal that the
admission of evidence of forcible rape constituted plain error, the
evidence presented at trial was such that, even assuming error
occurred, defendant cannot demonstrate that the jury would probably
have reached a different result. Defendant further challenges the
sentence imposed by the trial judge. Because the sentence was
within the presumptive range, and the record contains no indication
that the trial judge considered improper or irrelevant material, we
find no error.
At trial, the State presented evidence that in June 2004,L.R., who was born in May 1989, was forced to have sex with
defendant at gunpoint. On 21 December 2004, L.R. gave birth to a
son who was later determined to be defendant's child by genetic
testing. Defendant admitted in his own testimony that he had
sexual intercourse with L.R., but asserted that the act was
consensual. He also acknowledged paternity of the baby born to
L.R. Defendant, whose date of birth is 12 March 1979, was 25 years
old at the time of the intercourse and was, therefore, almost 10
years older than L.R.
Defendant was indicted for statutory rape of a person who is
15 years old. Following a jury verdict finding him guilty, the
trial court determined that defendant was a prior record level II.
The court then sentenced defendant to a presumptive range sentence
of 230 to 285 months imprisonment. Defendant timely appealed to
With respect to the trial, defendant argues that the trial
court committed plain error by admitting evidence of forcible rape
when defendant was charged only with statutory rape. According to
the plain error rule, a defendant must demonstrate "'not only that
there was error, but that absent the error, the jury probably would
have reached a different result.'" State v. Roseboro
, 351 N.C.
536, 553, 528 S.E.2d 1, 12 (quoting State v. Jordan
, 333 N.C. 431,
440, 426 S.E.2d 692, 697 (1993)), cert. denied
, 531 U.S. 1019, 148
L. Ed. 2d 498, 121 S. Ct. 582 (2000).
Assuming, without deciding, that the evidence of forcible rapewas improperly admitted, defendant has failed to demonstrate that
a different result was probable if the evidence had been excluded.
N.C. Gen. Stat. § 14-27.7A(a) provides that "[a] defendant is
guilty of a Class B1 felony if the defendant engages in vaginal
intercourse or a sexual act with another person who is 13, 14, or
15 years old and the defendant is at least six years older than the
person, except when the defendant is lawfully married to the
person." The evidence was undisputed as to each of the elements of
the crime. Defendant's contention that the sexual intercourse was
consensual was beside the point. State v. Anthony
, 351 N.C. 611,
616, 528 S.E.2d 321, 323 (2000). In short, the evidence of force
could not have resulted in the jury's verdict.
(See footnote 1)
Defendant, however, suggests that the evidence may have
influenced the trial court's exercise of discretion in sentencing
defendant. He acknowledges that he "has not found legal authority
for the proposition that the plain error compromised the decision
of the sentencing judge and is therefore reviewable by this Court."
It is well established that "[w]hen a sentence is within the
statutory limit it will be presumed regular and valid unless 'the
record discloses that the court considered irrelevant and improper
matter in determining the severity of the sentence.'" State v.
, 167 N.C. App. 770, 775, 607 S.E.2d 5, 9 (2005) (quoting
State v. Johnson
, 320 N.C. 746, 753, 360 S.E.2d 676, 681 (1987)). In this case, not only did the trial court impose a sentence within
the correct statutory presumptive range, but it imposed the lowest
sentence within that range. Further, the trial court specifically
declined to find any aggravating circumstances. In short, the
record contains no indication that the trial court considered any
improper matter in imposing defendant's sentence.
For the same reason, we find unpersuasive defendant's argument
regarding the trial judge's statement that defendant had "been
found guilty of a B1 felony maximum punishment is life without
parole." Defendant reads this statement as indicating that the
judge was confused about the maximum punishment for defendant's
crime and that this confusion may have influenced the trial court
to select a longer sentence than it might have imposed otherwise.
The trial judge's statement was correct as a general matter.
While defendant personally would not have been subject to a life
sentence given his prior record level of II, the maximum punishment
for a B1 felony in the aggravated range for the highest prior
record level is indeed life without parole. See
N.C. Gen. Stat. §
15A-1340.17(c), (e) (2005). Moreover, our review of the record
reveals no confusion by the trial judge. He stated: "You
[defendant] are a record level II for the basis of judgment. I
found no factors in aggravation. And I find no factors in
mitigation. The sentence that I will impose is within the
presumptive range." Considering that the trial court properly
calculated and articulated defendant's sentence, we conclude that
the trial judge's reference to the absolute maximum punishmentavailable for a B1 felony did not reflect any confusion that
adversely impacted defendant's ultimate sentence.
Finally, defendant argues that the trial judge erred in
failing to find a mitigating factor when determining his sentence.
Because the trial judge sentenced defendant within the presumptive
range, defendant is not entitled to appeal this issue as a matter
of right. N.C. Gen. Stat. § 15A-1444(a1) (2005); see State v.
, __ N.C. App. __, __, 632 S.E.2d 777, 792 (2006) (when
defendant argued that trial court erred in failing to find
mitigating factors, holding that "[d]efendant was sentenced in the
presumptive range, and therefore, has no statutory right to appeal
his sentence"). As defendant has not petitioned this Court for a
writ of certiorari, this argument is not properly before the Court.
Even if we were to treat defendant's appeal as a petition for
writ of certiorari, we would be required to reject defendant's
contention. A trial court "has the discretion to impose the
presumptive sentence even where there is evidence of mitigating
, __ N.C. App. at __ n.3, 632 S.E.2d at 793 n.3; see
also State v. Chavis
, 141 N.C. App. 553, 568, 540 S.E.2d 404, 415
(2000) ("[T]he trial court is required to take 'into account
factors in aggravation and mitigation only
when deviating from the
presumptive range in sentencing.'" (quoting State v. Caldwell
N.C. App. 161, 162, 479 S.E.2d 282, 283 (1997))). This assignment
of error is, therefore, overruled.
Judges WYNN and ELMORE concur.
Report per Rule 30(e).