State v. Graham, ___ N.C. App. ___, ___ S.E.2d ___ (Mar. 17, 2020)

aff’d, ___ N.C. ___, 2021-NCSC-125 (Oct. 29, 2021)

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.”