Summary
In State v. Barrett, 58 N.C. App. 515, 293 S.E.2d 896, judgment arrested, 307 N.C. 126 (1982), a case also involving the sexual act of fellatio, we foreclosed the issue whether crime against nature can be submitted as a lesser included offense of first (or second) degree sexual offense when we stated by Order that "the record on appeal before us discloses that defendant was convicted of crime against nature which is not a lesser included offense of a sexual offense in the first degree. N.C. Gen. Stat. 14-27 4 (1981).
Summary of this case from State v. WarrenOpinion
No. 8121SC1168
Filed 3 August 1982
1. Crime Against Nature 2; Rape and Allied Offenses 6.1 — indictment for sexual offense — conviction of crime against nature — motion for appropriate relief Defendant's motion for appropriate relief from his conviction of crime against nature on the ground that he was indicted for a first degree sexual offense and crime against nature is not a lesser included offense thereof is denied. G.S. 14-27.4 and G.S. 14-177.
2. Criminal Law 146.4 — constitutionality of statutes — question not properly presented The constitutionality of the crime against nature statute, G.S. 14-177, could not be considered on appeal where the question of constitutionality was not raised at trial and was not properly presented by the one assignment of error brought forward on appeal.
APPEAL by defendant from Seay, Judge. Judgment entered 18 June 1981 in Superior Court, FORSYTH County. Heard in the Court of Appeals on 27 April 1982.
Attorney General Rufus L. Edmisten, by Assistant Attorney General Elaine J. Guth, for the State.
Appellate Defender Adam Stein by Assistant Appellate Defender Ann B. Petersen, for defendant appellant.
Judge BECTON dissenting.
Defendant was charged in a proper bill of indictment with a first degree sexual offense in violation of G.S. 14-27.4. He was found guilty of crime against nature. From a judgment imposing a prison sentence of eight years minimum and ten years maximum, defendant appealed.
We note that one day after this case was calendared for oral argument in this Court, on 28 April 1982, defendant filed a motion for appropriate relief on the grounds that the criminal offense described in G.S. 14-177, crime against nature, is not a lesser included offense described in G.S. 14-27.4, a first degree sexual offense, and that judgment entered on the verdict of crime against nature should be arrested. The motion for appropriate relief is denied.
The only assignment of error brought forward and argued in defendant's brief is set out in the record as follows:
3. The Court erred in instructing the jury on the lesser included offense of crime against nature and in entering judgment on the verdict of guilty of crime against nature; on the grounds that G.S. 14-177 is unconstitutionally vague and overbroad on its face and as applied; thereby depriving the defendant of his rights as guaranteed by the First, Eighth, Ninth and Fourteenth Amendments to the United States Constitution and Art. I, 1, 14, 19, 27 and 36 of the North Carolina Constitution.
The assignment of error set out above purports to be based on Exception No. 2 which is placed in the record after a statement that the jury was impaneled and the attorneys had had a conference with the judge with respect to the instruction to be given, and Exception No. 5 which is placed at the end of the judgment.
On appeal defendant argues G.S. 14-177 is unconstitutional; however the constitutionality of the statute was not properly raised at trial, and the constitutionality of the statute is not raised on appeal by the one assignment of error brought forward. Therefore, the constitutionality of G.S. 14-177 is not raised in this Court. Nevertheless, we have examined the record in light of the assignments of error set out in the record and find that the defendant had a fair trial free from prejudicial error.
No error.
Judge HILL concurs.
Judge BECTON dissents.