State v. Graham

• Decision Date: 29 October 2021
• Docket Number: No. 155PA20,155PA20
• Parties: STATE of North Carolina v. John D. GRAHAM
• Court: North Carolina Supreme Court

379 N.C. 75

863 S.E.2d 752

STATE of North Carolina

v.John D. GRAHAM

No. 155PA20

Supreme Court of North Carolina.

Filed October 29, 2021

Joshua H. Stein, Attorney General, by Benjamin O. Zellinger, Special Deputy Attorney General, for the State-appellee.

Glenn Gerding, Appellate Defender, by Daniel Shatz, Assistant Appellate Defender, for defendant-appellant.

MORGAN, Justice.

¶ 1 This Court has limited its allowance of defendant's petition for discretionary review to a single issue addressed by the Court of Appeals which defendant contends that the lower appellate court decided in error. Pertinent to our election to review this case is defendant's argument that the Court of Appeals either improperly applied or disregarded the appropriate test for determining whether a defendant's out-of-state conviction may be counted as an elevated felony classification for purposes of sentencing in North Carolina trial courts as announced in State v. Sanders , 367 N.C. 716, 766 S.E.2d 331 (2014). Because we believe that the Court of Appeals majority, with which the lower appellate court's dissenting opinion agreed, properly applied the comparative elements test in affirming the trial court's consideration of defendant's conviction in the state of Georgia for statutory rape as equivalent to a North Carolina Class B1 felony for the purpose of the calculation of prior record level points in criminal sentencing, we affirm the Court of Appeals determination and find no error.

I. Factual and Procedural Background

¶ 2 Defendant was indicted on four counts each of sexual offense with a child by an adult and taking indecent liberties with a child by a Clay County grand jury on 11 September 2012. Defendant's trial began on 5 December 2016. The victim in the case, A.M.D.,² testified that on multiple occasions when she was seven to eight years old, defendant inappropriately touched her private areas and digitally penetrated her vagina. At the close of the State's evidence, the State voluntarily dismissed all four counts of taking indecent liberties with a child, and the trial court submitted the remaining four counts of sexual offense with a child by an adult to the jury after both parties had ended their respective presentations. On 9 December 2016, the jury returned a verdict of guilty on one count of sexual offense with a child by an adult, and found defendant not guilty as to the three remaining charges. The trial court continued sentencing until the following week.

¶ 3 At the sentencing hearing on 13 December 2016, the State tendered to the trial court defendant's conviction on 21 March 2001 for statutory rape in Georgia,³ as well as defendant's more recent conviction on 9 April 2015 for escaping a local jail in Clay County, for consideration by the trial court in its calculation of defendant's prior record level. In compliance with the regular procedure for trial courts in North Carolina, the trial court in this case utilized a standardized AOC-CR-600B form to determine, under a structured sentencing statutory framework, the manner in which defendant's prior convictions would affect the length of active time that defendant would serve for his single Class B1 felony conviction in violation of North Carolina law for the commission of sexual offense with a child by an adult. The trial court treated defendant's Georgia statutory rape conviction as a Class B1 felony—which garnered defendant nine prior record points for sentencing purposes—because the trial court regarded the Georgia statute under which defendant was convicted as similar to North Carolina's own statutory rape statute. In the event that the trial court had classified defendant's Georgia conviction in the lower felony class level of Class I, which was an option available to the trial court, then defendant would have been assigned only two prior record points for the Georgia conviction as the trial court determined defendant's sentence for his perpetration of the North Carolina criminal offense of sexual offense with a child by an adult. Combined with one point assigned for defendant's previous escape conviction, defendant was assigned a total of ten prior record level points for sentencing purposes, which automatically categorized him as a Level IV offender for sentencing determinations. On the other hand, if the trial court had declined to find substantial similarity between the Georgia and North Carolina statutes at issue, then defendant would have received a total of only three prior record level points which would have classified him as a prior record Level II offender under North Carolina's structured sentencing guidelines. In sentencing defendant within the parameters of prior record Level IV, the trial court entered a judgment of 335 to 462 months of active time of incarceration for defendant. Defendant appealed, and the Court of Appeals panel held that the trial court did not err as to finding substantial similarity between the Georgia and North Carolina statutes.

II. Analysis

¶ 4 On 21 March 2001, defendant was found guilty of the offense of statutory rape in the state of Georgia. He was determined to have violated section 16-6-3 of the Official Code of Georgia Annotated, which read as follows at the time of defendant's conviction under the Georgia statute:

(a) A person commits the offense of statutory rape when he or she engages in sexual intercourse with any person under the age of 16 years and not his or her spouse, provided that no conviction shall be had for this offense on the unsupported testimony of the victim.

(b) A person convicted of the offense of statutory rape shall be punished by imprisonment for not less than one nor more than 20 years; provided, however, that if the person so convicted is 21 years of age or older, such person shall be punished by imprisonment for not less than ten nor more than 20 years; provided, further, that if the victim is 14 or 15 years of age and the person so convicted is no more than three years older than the victim, such person shall be guilty of a misdemeanor.

Ga. Code Ann. § 16-6-3 (2001). Expanded into its component parts, the Georgia statute results in a felony conviction if a defendant (1) engages in sexual intercourse (2) with any person (3) under sixteen years of age (4) who is not the defendant's spouse, (5) unless the victim is fourteen or fifteen years of age and the defendant is no more than three years older than the victim.⁴ Ga. Code Ann. § 16-6-3. If the victim is fourteen or fifteen years old and the defendant is within three years in age of the victim, then the defendant is guilty of a misdemeanor. Id.

¶ 5 Comparably, section 14-27.25 of the General Statutes of North Carolina stated the following at the time that the trial court in defendant's matter at issue conducted the sentencing hearing in the present case on 13 December 2016:

(a) A defendant is guilty of a Class B1 felony if the defendant engages in vaginal intercourse with another person who is 15 years of age or younger and the defendant is at least 12 years old and at least six years older than the person, except when the defendant is lawfully married to the person.

(b) Unless the conduct is covered under some other provision of law providing greater punishment, a defendant is guilty of a Class C felony if the defendant engages in vaginal intercourse with another person who is 15 years of age or younger and the defendant is at least 12 years old and more than four but less than six years older than the person, except when the defendant is lawfully married to the person.

N.C.G.S. § 14-27.25 (2015). The elements of the North Carolina statute require the State to prove that a defendant (1) engaged in vaginal intercourse (2) with another person (3) fifteen years of age or younger (4) who is not the defendant's spouse, (5) provided that the defendant is at least twelve years of age at the time of the offense and (6) at least six years older than the victim to constitute a Class B1 violation of N.C.G.S. § 14-27.25(a), and less than six years older but more than four years older than the victim to constitute a Class C violation of N.C.G.S. § 14-27.25(b). N.C.G.S. § 14-27.25.

¶ 6 In calculating a defendant's prior record level, a trial court must determine whether the statute under which a defendant was convicted in another state is substantially similar to a statute of a particular felony in North Carolina, which the State must show by a preponderance of the evidence. Subsection 15A-1340.14(e) states in pertinent part:

Except as otherwise provided in this subsection, a conviction occurring in a jurisdiction other than North Carolina is classified as a Class I felony if the jurisdiction in which the offense occurred classifies the offense as a felony .... If the State proves by the preponderance of the evidence that an offense classified as ... a felony in the other jurisdiction is substantially similar to an offense in North Carolina that is classified as a Class I felony or higher, the conviction is treated as that class of felony for assigning prior record level points.

N.C.G.S. § 15A-1340.14(e) (2019) (emphasis added).

¶ 7 We adopt the correctness of determinations made by the Court of Appeals that "whether an out-of-state offense is substantially similar to a North Carolina offense is a question of law," State v. Hanton , 175 N.C. App. 250, 254, 623 S.E.2d 600 (2006), and "the requirement set forth in N.C. Gen. Stat. § 15A-1340.14(e) is not that the statutory wording precisely match, but rather that the offense be ‘substantially similar,’ " State v. Sapp , 190 N.C. App. 698, 713, 661 S.E.2d 304 (2008). "We review questions of law de novo." State v. Khan , 366 N.C. 448, 453, 738 S.E.2d 167 (2013).

¶ 8 In the instant case, the trial court evaluated defendant's conviction of statutory rape in the state of Georgia to be commensurate with a Class B1 felony in North Carolina for sentencing purposes in the present case and hence, in assigning points for prior...