Smith's Criminal Case Compendium
Smith's Criminal Case Compendium
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Smith's Criminal Case Compendium
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This compendium includes significant criminal cases by the U.S. Supreme Court & N.C. appellate courts, Nov. 2008 – Present. Selected 4th Circuit cases also are included.
Jessica Smith prepared case summaries Nov. 2008-June 4, 2019; later summaries are prepared by other School staff.
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The Court of Appeals properly applied the comparative elements test of State v. Sanders, 367 N.C. 716 (2014) in affirming the trial court’s consideration of the defendant’s Georgia conviction for statutory rape as equivalent to a North Carolina Class B1 felony for purposes of calculating the defendant’s PRL for sentencing. Comparing the elements of the Georgia statutory rape offense with the elements of G.S. 14-27.25, the Court found the offenses substantially similar despite variations in the states’ punishment schemes based on the ages of the offender and the victim.
Justice Earls, joined by Justice Ervin, dissented, expressing the view that the majority misapplied Sanders and that the offenses were not substantially similar because the Georgia statute “indisputably encompasses conduct which is not a Class B1 felony in North Carolina.” Justice Earls explained that, at the time of the defendant’s Georgia offense, a person who was 18 years old who had sexual intercourse with a 14-year-old would have violated the Georgia statute at issue but would not have violated any North Carolina statute creating a Class B1 felony.
(1) The trial court erred by determining that a Tennessee offense of “domestic assault” was substantially similar to the North Carolina offense of assault on a female without reviewing all relevant sections of the Tennessee code. Section 39-13-111 of the Tennessee Code provides that “[a] person commits domestic assault who commits an assault as defined in § 39-13-101 against a domestic abuse victim.” Section 39-13-101 defines when someone commits an “assault.” Here the State provided the trial court with a photocopy section 39-13-111 but did not give the trial court a photocopy of section 39-13-101. The court held: “We agree with the Court of Appeals that for a party to meet its burden of establishing substantial similarity of an out-of-state offense to a North Carolina offense by the preponderance of the evidence, the party seeking the determination of substantial similarity must provide evidence of the applicable law.” (2) Comparing the elements of the offenses, the court held that they are not substantially similar under G.S. 15A-1340.14(e). The North Carolina offenses does not require any type of relationship between the perpetrator and the victim but the Tennessee statutes does. The court noted: “Indeed, a woman assaulting her child or her husband could be convicted of “domestic assault” in Tennessee, but could not be convicted of “assault on a female” in North Carolina. A male stranger who assaults a woman on the street could be convicted of “assault on a female” in North Carolina, but could not be convicted of “domestic assault” in Tennessee.”
In this Mecklenburg County case, defendant appealed his convictions for attempted first-degree murder and various assault and firearms charges, arguing error in the determination of his prior record level by finding his federal carjacking conviction was substantially similar to common law robbery. The Court of Appeals found no error.
In 2018, defendant fired multiple shots during an altercation, one of which struck a child waiting at a bus stop, attracting the attention of an off-duty sheriff’s deputy. Defendant jumped into a vehicle, and as the driver sped away from the deputy, defendant fired multiple shots at the deputy’s vehicle. Defendant was eventually caught, and was convicted of all charges against him at trial. During the sentencing phase, the trial court considered whether defendant’s conviction for carjacking under 18 U.S.C. § 2119 was substantially similar to the North Carolina common law offense of robbery. After hearing from the parties, the trial court concluded that the State had proven by a preponderance of the evidence that the two offenses were substantially similar, increasing defendant’s prior record level by four sentencing points.
The Court of Appeals began by noting the similarities between the two offenses, as “[b]oth the federal carjacking statute and North Carolina’s common law robbery require the forceful and violent taking of property.” Slip Op. at 9. Defendant raised four arguments on appeal. First, defendant argued that the similarity between the two offenses failed the test from State v. Sanders, 367 N.C. 716 (2014). The Court of Appeals disagreed, explaining “[h]ere, unlike in Sanders, the elements of carjacking and common law robbery require similar conduct, and no elements are mutually exclusive.” Slip Op. at 11. In defendant’s second argument, he pointed to the connection to interstate commerce requirement for the federal offense, an element not present in common law robbery. The court dismissed this argument, pointing to a similar determination in State v. Riley, 253 N.C. App. 819 (2017), and explaining that the additional federal element of “interstate commerce” did not distinguish the two crimes. Slip Op. at 13.
Defendant pointed to the sentencing enhancements of the federal statute not present in the North Carolina offense for his third argument. The court again disagreed, noting the N.C. Supreme Court has explained “the test in Sanders does not ‘require identicalness between compared statutes from different states and mandate identical outcomes between cases which originate both in North Carolina and in the foreign state.’” Id. at 15, quoting State v. Graham, 379 N.C. 75, 84 (2021). Finally, defendant argued that the North Carolina offense was broader than the federal offense, as the federal offense is limited to theft of motor vehicles. This final argument also failed, as the court referenced State v. Key, 180 N.C. App. 286 (2006), and concluded that the two offenses were substantially similar as “both the federal carjacking statute and North Carolina common law robbery require a non-consensual taking of property under threat, force, or intimidation.” Slip Op. at 17.
(1) In this Buncombe County case, the State prepared the defendant’s prior record level worksheet and calculated that the defendant had fourteen prior record points based on ten out-of-state felony and misdemeanor convictions. The defendant and her counsel stipulated to these prior convictions by signing the sentencing worksheet. At the plea hearing, the state provided “the trial court with copies of each out-of-state misdemeanor statute as evidence that the offenses were ‘substantially similar’ to a North Carolina offense to support their classification as Class 1 misdemeanors.” Slip op. at ¶ 5. Upon accepting the copies, the trial court did not review them further, and only asked the defendant’s counsel whether they objected to the trial court finding that the out-of-state misdemeanors were of similar status in North Carolina. The defendant’s counsel did not respond because of an interruption by the prosecutor, but following the interruption, the defendant and her counsel agreed to “14 prior record points and a prior record level, therefore, of five for felony sentencing purposes.” Id. at ¶ 5.
On appeal, the defendant claimed that the trial court erred by failing to consider whether each conviction was substantially similar to any North Carolina Class A1 or Class 1 misdemeanor, and thus miscalculated her prior sentencing points. The Court of Appeals agreed that the trial court may not accept a stipulation that an out-of-state conviction is “substantially similar” to a particular North Carolina felony or misdemeanor. Instead, the trial court must compare the elements of the out-of-state statute with the elements of the North Carolina statute to determine as a matter of law whether they are substantially similar. The Court of Appeals remanded the case for resentencing.
(2) Prior to sentencing, the defendant’s counsel told the trial court that they were appointed, their hours on the case, and that it totaled to $990 in attorney’s fees. The trial court did not, however, ask the defendant herself about the attorney’s hours or fees. Under State v. Friend, 257 N.C. App. 516 (2018), indigent defendants have a right to notice and the opportunity to be heard before civil judgments are entered against them for court-appointed attorney’s fees. The trial court did not offer the defendant an opportunity to be heard and thus erred. The Court of Appeals vacated the imposed civil judgment for attorney’s fees.
The defendant was charged with four counts of engaging in sexual acts against a child under 13 and taking indecent liberties with a child. The defendant was alleged to have touched a child, A.M.D., in sexual manner on several occasions over a period of one to two years. The state’s evidence at trial consisted primarily of testimony from the victim, A.M.D., and corroborating testimony from other witnesses to whom she had disclosed the abuse. The state dismissed some of the charges prior to verdict, and the jury ultimately convicted the defendant of one count of sexual offense against a child under age 13.
At sentencing, the trial court concluded that a prior sex offense conviction from Georgia was substantially similar to a North Carolina offense classified as a B1 felony, adding 9 points to defendant’s criminal history. The Georgia statute was not formally introduced into evidence, but the appellate court determined the record was sufficient to review the issue and reject defendant’s argument. Although there were some minor differences in the statutes regarding the age requirements for perpetrators and victims, such that some acts might qualify under one statute but not the other, overall the prohibited conduct was substantially similar and “[b]oth N.C. Gen. Stat. § 14-27.25 and Ga. Code Ann. § 16-6-3 seek to protect persons under age sixteen from those who would engage in sexual intercourse with them, and seek greater deterrence for offenders significantly older than their victims by punishing them more severely.”
The defendant was charged with possession of various drugs found in his bedroom and an adjoining alcove, which he said was his personal space. The defendant shared the house with a number of people, including a woman named Ms. Stepp. The defendant consented to a search of his bedroom and alcove, stating to the officers he did not believe they would find any illegal substances, only drug paraphernalia. When asked whether he had ingested any illegal substances, the defendant admitted having used methamphetamine and prescription pills. The search of the defendant’s bedroom uncovered a white rectangular pill marked G3722, a small bag of marijuana, and drug paraphernalia. The search of the alcove uncovered a metal tin containing methamphetamine, cocaine, heroin, and a small pill similar to the one found in his bedroom. The defendant was charged with and convicted of possession of methamphetamine, heroin, and cocaine and having attained the status of an habitual felon.
Based on the stipulation of counsel to the prior record worksheet, the trial judge found that the defendant had 47 prior convictions and was in prior record level VI. The Court found that the following 32 convictions should not have been counted: convictions used to support habitual felon status in this case; convictions rendered in the same week or session of court other than the one with the highest points; and Class 2 and lower misdemeanor convictions. The Court held that of the 15 remaining convictions, six were out-of-state convictions and were incorrectly classified. Only two should have been counted and then as Class I felonies. The Court held that precedent continues to prohibit the parties from stipulating to the similarity of out-of-state convictions or the resulting North Carolina classification. The Court distinguished State v. Arrington, ___ N.C. ___, 819 S.E.2d 329 (2018), which held that when an offense is split into two separate crimes and the defendant stipulates to the higher offense class, it is assumed that the higher classification is sufficiently supported by the underlying facts of the crime. For out-of-state convictions, in contrast, the parties must establish that the elements of the out-of-state conviction are similar to those of a North Carolina offense; only then may a stipulation determine the underlying facts of the offense and the appropriate classification. Based on this review, the Court found the defendant had 11 convictions that could be used, which placed him in prior record level V. A judge who dissented on a different issue concurred in this part of the opinion but would not have reached the issue because she found that the defendant was entitled to a new trial.
(1) In calculating prior record level, the trial court did not err by concluding that the defendant’s South Carolina conviction for criminal sexual conduct in the third degree was substantially similar to the North Carolina Class C felonies of second-degree forcible rape and second-degree forcible sex offense. The court rejected the defendant’s argument that the South Carolina conviction could be a violation of either second-degree forcible rape or second-degree forcible sexual offense, but not both because North Carolina’s rape statute only applies to vaginal intercourse and the sexual offense statute specifically excludes vaginal intercourse. This argument was “a distinction without a difference.” (2) Over a dissent, the court held that the trial court erred by concluding that the defendant’s South Carolina conviction for criminal sexual conduct in the first degree was substantially similar to the North Carolina Class BI felonies of statutory rape of a child by an adult and statutory sex offense with the child by an adult. These offenses are not substantially similar due to their disparate age requirements. Specifically, although both North Carolina statutes require that the offender be at least 18 years old, a person of any age may violate the South Carolina statute. Also, the North Carolina statutes apply to victims under the age of 13, while South Carolina’s protects victims who are less than 11 years old. Thus, the North Carolina and South Carolina statutes apply to different offenders and different victims and are not substantially similar.
To the extent the State failed to meet its burden at sentencing to establish that the defendant’s prior conviction in federal court was substantially similar to a Class G felony in North Carolina, the error was harmless. The court found that there is sufficient information in the record to conclude that the federal offense of being a felon in possession of a firearm is substantially similar to the North Carolina offense of possession of a firearm by a felon, a Class G felony.
The trial court did not err by assigning points for two out-of-state felony convictions. “[B]ecause defendant stipulated to his prior record and the prosecutor did not seek to assign a classification more serious than Class I to his out-of-state convictions for second-degree burglary and breaking and entering, the State was not required to offer proof that these offenses were considered felonies in South Carolina or that they were substantially similar to specific North Carolina felonies.”
The trial court correctly calculated the defendant’s PRL. The defendant argued that the trial court erred by basing its PRL calculation on an ineffective stipulation. The defendant’s only prior conviction was one in Michigan for carrying a concealed weapon, which he contended is substantially similar to the NC Class 2 misdemeanor offense of carrying a concealed weapon. The court concluded that the defendant did not make any stipulation as to the similarity of the Michigan offense to NC offense. Instead, the prior conviction was classified as a Class I felony, the default classification for an out-of-state felony. Thus, defendant’s stipulations in the PRL worksheet that he had been convicted of carrying a concealed weapon in Michigan and that the offense was classified as a felony in Michigan, were sufficient to support the default classification of the offense as a Class I felony.
The trial court did not err in calculating the defendant’s prior record level when it counted a New Jersey third-degree theft conviction as a Class I felony. The court rejected the defendant’s argument that because New Jersey does not use the term “felony” to classify its offenses, the trial court could not determine that third-degree theft is a felony for sentencing purposes, noting that the State presented a certification that third-degree theft is considered a felony in New Jersey. The court also rejected the defendant’s argument that the offense was substantially similar to misdemeanor larceny.
Although the trial court erred by accepting the defendant’s stipulation that a Tennessee conviction for “theft over $1,000” was substantially similar to a NC Class H felony, the error did not affect the computation of the defendant’s PRL and thus was not prejudicial.
Based on the elements of the two offenses, the trial court erred by concluding that a prior Ohio conviction was substantially similar to the North Carolina crime of assault with a deadly weapon with intent to kill.
Where the defendant stipulated to the worksheet’s classification of a South Carolina conviction as a Class I felony, the trial court correctly assigned two points for that conviction. The court reasoned that the defendant knew of the worksheet’s contents and had ample opportunity to object to them. It thus concluded that the defendant’s silence regarding the worksheet’s classification of the conviction as a Class I felony constituted a stipulation. Moreover, it reasoned, because Class I is the default classification for an out-of-state felony the State met its burden and was required to prove nothing further in support of that classification.
When determining prior record level, the trial court erroneously concluded that a Georgia conviction for theft was substantially similar to misdemeanor larceny without hearing any argument from the State. Additionally, the Georgia offense is not substantially similar to misdemeanor larceny; the Georgia offense covers both temporary and permanent takings but misdemeanor larceny covers only permanent takings.
The trial court did not err in calculating the defendant’s prior record level. The trial court considered the defendant’s two federal felony convictions as Class I felonies for purposes of calculating prior record level. Because the defendant made no showing that either conviction was substantially similar to a North Carolina misdemeanor, the trial court did not err by using the default Class I categorization.
The trial court did not err by finding that a NY drug conviction for third-degree drug sale was substantially similar to a NC Class G felony under G.S. 90-95. Comparing the two states’ statutes, the offenses were substantially similar, notwithstanding the fact that the states’ drug schedules are not identical. The court noted: the requirement in G.S. 15A-1340.14(e) “is not that the statutory wording precisely match, but rather that the offense be ‘substantially similar.’”
In determining whether out-of-state convictions were substantially similar to NC offenses, the trial court erred by failing to compare the elements of the offenses and instead comparing their punishment levels.
The trial court erred by determining that the defendant was a prior record level VI when the defendant’s Florida conviction for burglary was not sufficiently similar to the corresponding N.C. burglary offense. The Florida statute is broader than the N.C. statute in that it encompasses more than a dwelling house or sleeping apartment. Significantly, the Florida statute does not require that the offense occur in the nighttime or that there be a breaking as well as an entry. Based on these differences, the Florida burglary statute is not sufficiently similar to N.C.’s burglary statute. The court went on to find the Florida crime sufficiently similar to G.S. 14-54, felonious breaking or entering.
The trial court erred in calculating the defendant’s prior record level with respect to whether a federal conviction was substantially similar to a N.C. felony. The determination of substantial similarity is a question of law which cannot be determined by stipulation to the worksheet.
The trial court erred by sentencing the defendant as a level IV offender when the State failed to present sufficient evidence establishing that out-of-state offenses were substantially similar to North Carolina offenses. The State presented printed copies of out-of-state statutes purportedly serving as the basis for the out-of-state convictions. However, the State’s worksheet did not identify the out-of-state crimes by statute number and instead used brief and non-specific descriptions that could arguably describe more than one crime, making it unclear whether the statutes presented were the basis for the defendant’s convictions. Also, the State presented 2008 versions of statutes when the defendant’s convictions were from 1993 and 1994, and there was no evidence that the statutes were unchanged. Finally, the trial erred by accepting the classification of the defendant’s out-of-state offenses without comparing the elements of those offenses to the elements of the North Carolina offenses the State contended were substantially similar.
Since the State failed to demonstrate the substantial similarity of out-of-state New York and Connecticut convictions to North Carolina crimes and the trial court failed to determine whether the out-of-state convictions were substantially similar to North Carolina offenses, a resentencing was required. The State neither provided copies of the applicable Connecticut and New York statutes, nor provided a comparison of their provisions to the criminal laws of North Carolina. Also, the trial court did not analyze or determine whether the out-of-state convictions were substantially similar to North Carolina offenses.
For purposes of assigning one prior record level point for out-of-state misdemeanors that are substantially similar to a North Carolina A1 or 1 misdemeanor, North Carolina impaired driving is a Class 1 misdemeanor. Thus, the trial court did not err by assigning one prior record level point to each out-of-state impaired driving conviction. The state presented sufficient evidence that the out-of-state convictions were misdemeanors in the other state.