[¶ 1] Derek Foreid appeals from an amended criminal judgment entered after a jury found him guilty of gross sexual imposition. We conclude the district court did not abuse its discretion in permitting the State to amend the information, and the court did not err in denying Foreid’s request for a jury instruction on a lesser included offense. We affirm.
I
[¶ 2] In September 2006, the State filed a complaint charging Foreid with gross sexual imposition for allegedly using force to compel K.N. to submit to sexual
[¶ 3] In January 2007, the State moved to amend the information to correct a mistake in the classification of the charged offense, stating:
Pursuant to an amendment to the gross sexual imposition statute in 2005, offenses charged under 12.1 — 20—03(l)(a) are classified as a AA Felony ... prior to August 2005, these offenses were a class A Felony. As such, a mistake was made in the charging document and should be amended to reflect the classification of AA Felony.
The amended information was attached to the motion to amend, which was filed and is included in the record. The amended information charged Foreid with gross sexual imposition under N.D.C.C. § 12.1-20 — 03(l)(a), but changed the classification of the offense from a class A felony to a class AA felony. Foreid objected to the State’s motion, arguing the State should not be allowed to amend the information, because the amended information charged him with a more serious offense and would result in substantial prejudice. The court granted the State’s motion over Foreid’s objection. The State did not file a separate amended information after the court granted its motion, and the amended information is not listed in the Clerk of District Court’s register of actions.
[¶ 4] During the December 2007 jury trial, both Foreid and K.N. testified about what occurred on June 13, 2006. K.N. testified she was intoxicated, but she remembers waking up in the back of Fo-reid’s pickup truck with Foreid on top of her. She testified Foreid attempted to have sexual intercourse with her, and she tried to wiggle her hips and roll away from him to stop him but her arms felt like they were weighed down. K.N. testified she told Foreid no, that it hurt, and to get off her, but he penetrated her once and it was done. Foreid testified he had sexual intercourse with K.N., but it was consensual and she did not tell him to stop or that it hurt. Other witnesses who had spent time with Foreid and K.N. on June 13 and two physicians and a nurse who treated K.N. in the emergency room following the incident also testified. After both parties presented their cases, Foreid requested a jury instruction on the lesser included offense of sexual assault, and the court denied Foreid’s request. The jury found Foreid guilty, and he was sentenced to serve twenty years in prison with ten years suspended.
[¶ 5] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal from the amended criminal judgment was timely under N.D.R.App.P. 4(b). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 29-28-06.
II
[¶ 6] Foreid argues the district court erred in allowing the State to amend the information. Foreid also contends his substantive due process rights were violated when the criminal prosecution proceeded without the amended information properly filed and without a preliminary hearing or arraignment on the amended information.
A
[¶ 7] Foreid argues the district court erred in granting the State’s request to
[¶ 8] “Unless an additional or different offense is charged or a substantial right of the defendant is prejudiced, the court may permit an information to be amended at any time before the verdict or finding.” N.D.R.Crim.P. 7(e). We review the district court’s decision to allow an information to be amended for an abuse of discretion.
State v. Vance,
[¶ 9] The initial information charged Foreid with gross sexual imposition under N.D.C.C. § 12.1-20-03(l)(a), and stated the offense was a class A felony. However, N.D.C.C. § 12.1-20-03 was amended in 2005, changing a violation of subdivision a of subsection 1 from a class A felony to a class AA felony. Section 12.1-20-03(3)(a), N.D.C.C., provides:
An offense under this section is a class AA felony if in the course of the offense the actor inflicts serious bodily injury upon the victim, if the actor’s conduct violates subdivision a of subsection 1, or if the actor’s conduct violates subdivision d of subsection 1 and the actor was at least twenty-two years of age at the time of the offense.
All other violations of N.D.C.C. § 12.1-20-03 are class A felonies. N.D.C.C. § 12.1-20-03(3)(b).
[¶ 10] Foreid was charged with violating N.D.C.C. § 12.1-20-03(l)(a), which is a class AA felony under the statute. The initial information incorrectly stated the offense was a class A felony. When a statute specifically states the classification of an offense, the State cannot change the required classification when it charges an individual with committing the offense.
See
N.D.C.C. § 12.1-01-02(2) and (3) (purpose of grading offenses is to define the limits in punishment and give fair warning of the consequences of violation, and to prescribe penalties proportionate to the seriousness of the offenses). The amended information corrected an error in the stated classification of the charged offense, and the change was made to comply with the statute. The mistake in the classification in the initial information was a clerical error, and amending the information to correct the error did not charge an additional or different offense.
Cf
N.D.R.Crim.P. 7(c)(2) (error in citation in an information is not ground to reverse a conviction);
State v. Ennen,
[¶ 11] Further, Foreid was not prejudiced by the amended information.
Cf. State v. Loomer,
B
[¶ 12] Foreid contends his due process rights were violated because the amended information was never properly filed and a preliminary hearing and arraignment were not held. Foreid did not raise this issue before the district court, but claims it is obvious error.
[¶ 13] An issue not raised before the district court, including a constitutional issue, generally will not be addressed on appeal unless the issue rises to that of an obvious error under N.D.R.Crim.P. 52(b).
State v. Parisien,
[¶ 14] A new preliminary hearing is not always required when an information is amended. “The purpose of a preliminary hearing is to determine whether there is probable cause for the charged offenses and to decide whether a trial should be held to determine the accused’s guilt or innocence.”
State v. Keener,
[¶ 15] A preliminary hearing was held, and Foreid was arraigned on the initial information charging him with gross sexual imposition under N.D.C.C. § 12.1-20-03(l)(a). After hearing testimony from the victim and other witnesses, the district court found there was probable cause to believe Foreid committed the offense, and Foreid entered a not guilty plea. Although the amended information does not appear as a separate entry in the register of actions, the amended information was filed as an attachment to the State’s motion to amend and is in the record. Foreid had notice of the amendment, he objected to the amendment, and after considering Foreid’s objection, the district court granted the State’s motion to amend the information. The amended information charged Foreid with gross sexual imposition under N.D.C.C. § 12.1 — 20—03(l)(a), the same offense charged in the initial information. The amended information corrected a mistake in the classification of the charged offense, which did not change the facts, culpability requirement, or the elements of the offense. Foreid was not charged with a new or different offense, the offense and its culpability requirements and elements did not change, and the facts the charge was based on remained the same. Foreid therefore was not entitled to a new preliminary hearing or arraignment. Moreover, Foreid did not request a new arraignment or preliminary hearing, and he did not raise this issue before the district court. We conclude Foreid’s due process rights were not violated, and the district court did not commit an obvious error affecting Foreid’s substantial rights.
Ill
[¶ 16] Foreid argues the district court erred in denying his request for a jury instruction on the lesser included offense of sexual assault. The State argues sexual assault is not a lesser included offense of gross sexual imposition.
[¶ 17] A defendant does not have a constitutional right to an instruction on a lesser included offense.
State v. Keller,
[¶ 18] A person is guilty of gross sexual imposition under N.D.C.C. § 12.1-20-03(l)(a) if he engages in a sexual act with another, or causes another to engage in a sexual act, and he “compels the victim to submit by force or by threat of imminent death, serious bodily injury, or kidnapping, to be inflicted on any human being....” Foreid claims he was entitled to a jury instruction on the lesser included offense of sexual assault under N.D.C.C. § 12.1-20-07(l)(a). A person is guilty of the offense of sexual assault if he knowingly has sexual contact with another person and “knows or has reasonable cause to believe that the contact is offensive to the other person....” N.D.C.C. § 12.1-20-07(l)(a). Although the State argues Foreid was
not
entitled to a jury instruction on sexual assault because it is not a lesser included offense of gross sexual imposition, this Court has said sexual assault is a lesser included offense.
State v. McDonell,
550
[¶ 19] “For a lesser-included-offense instruction, there must be evidence on which a jury could rationally find beyond a reasonable doubt that the defendant is not guilty of the greater offense and to find beyond a reasonable doubt that the defendant is guilty of the lesser.”
Keller,
[¶ 20] Neither party disputes that Fo-reid engaged in sexual intercourse with K.N. The State argued and presented evidence that K.N. was forcibly raped, including testimony from K.N. that she said no, she told Foreid to stop, she said it hurt, and she tried to stop him but was unable to move her arms because they felt weighed down. Foreid contested only the issue of consent and testified K.N. had consented to the act and he did not hear her say no, to stop, or that it hurt. Because the only issue was consent, if the jury believed Foreid’s testimony that the act was consensual, it would create a defense to both offenses, and he could not be found guilty of either sexual assault or gross sexual imposition.
See McDonell,
IV
[¶21] We affirm, concluding the district court did not abuse its discretion in allowing the State to amend the information or err in denying Foreid’s request for a jury instruction on a lesser included offense.