State v. Sanders ( 2014 )

IN THE SUPREME COURT OF NORTH CAROLINA
No. 60A14
19 December 2014
STATE OF NORTH CAROLINA
v.
RONDELL LUVELL SANDERS
Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel
of the Court of Appeals, ___ N.C. App. ___, 753 S.E.2d 713 (2014), affirming in part
and remanding for resentencing in part a judgment entered on 15 February 2013
by Judge Wayland J. Sermons, Jr. in Superior Court, Beaufort County. Heard in
the Supreme Court on 18 November 2014.
Roy Cooper, Attorney General, by Laura E. Parker, Assistant Attorney
General, for the State-appellant.
W. Michael Spivey for defendant-appellee.
BEASLEY, Justice.
On 19 November 2009, a jury found Rondell Luvell Sanders (“defendant”)
guilty of robbery with a dangerous weapon. At sentencing, the trial court awarded
sentencing points for defendant’s two prior Tennessee misdemeanor convictions,
finding the Tennessee offenses of “theft of property” and “domestic assault” to be
substantially similar to North Carolina offenses. On appeal, the Court of Appeals
remanded the case and instructed the trial court to consider the elements of the
STATE V. SANDERS
Opinion of the Court
offenses, rather than their punishments, when determining substantial similarity.
State v. Sanders, ___ N.C. App. ___, 736 S.E.2d 238 (2013). On remand, the trial
court considered the elements and determined the Tennessee offenses to be
substantially similar to the North Carolina offenses of “larceny” and “assault on a
female.” It is from the trial court’s order on remand that defendant presently
appeals.
In its opinion, the Court of Appeals affirmed in part and remanded in part
the trial court’s judgment. State v. Sanders, ___ N.C. App. ___, ___, 753 S.E.2d 713,
717 (2014). The court unanimously affirmed the trial court’s determination that the
Tennessee offense of “theft of property” is substantially similar to the North
Carolina offense of “larceny.”1 Id. at ___, 753 S.E.2d at 716. The Court of Appeals
majority held that the trial court erred in finding the Tennessee offense of “domestic
assault” to be substantially similar to the North Carolina offense of “assault on a
female.” Id. at ___, 753 S.E.2d at 717. The majority concluded that the elements of
the Tennessee offense differed from the North Carolina offense to such an extent
that the two offenses were not substantially similar. Id. at ___, 743 S.E.2d at 717.
The dissent disagreed, and would have held that, because the purposes of the two
states’ offenses are similar and because additional evidence in the record would
demonstrate that defendant’s conduct would satisfy the elements of the North
1This Court denied defendant’s petition for discretionary review of this
unanimous holding on 11 June 2014. ___ N.C. ___, 758 S.E.2d 861 (2014).
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STATE V. SANDERS
Opinion of the Court
Carolina offense, the State met its burden of establishing the two offenses’
substantial similarity by a preponderance of the evidence. Id. at ___, 753 S.E.2d at
719-20 (Bryant, J., dissenting). The State appeals the holding of the Court of
Appeals on the basis of the dissent pursuant to N.C.G.S. § 7A-30(2).
Subsection 15A-1340.14(e) governs the assignment of sentencing points for
prior convictions in other jurisdictions and states, in pertinent part, that
[i]f the State proves by the preponderance of the evidence
that an offense classified as a misdemeanor in the other
jurisdiction is substantially similar to an offense classified
as a Class A1 or Class 1 misdemeanor in North Carolina, the
conviction is treated as a Class A1 or Class 1 misdemeanor
for assigning prior record level points.
N.C.G.S. § 15A-1340.14(e) (2013). This Court has not addressed the comparison of
out-of-state offenses with North Carolina offenses for purposes of determining
substantial similarity under N.C.G.S. § 15A-1340.14(e).
First, the State argues that the trial court did not err in determining the
Tennessee offense of “domestic assault” and the North Carolina offense of “assault
on a female” to be substantially similar without reviewing the Tennessee statute
defining the offense of “assault.”
The Court of Appeals has held that, for purposes of determining “substantial
similarity” under N.C.G.S. § 15A-1340.14(e), a party may establish the elements of
an out-of-state offense by providing “evidence of the statute law of such state.”
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Opinion of the Court
State v. Rich, 130 N.C. App. 113, 117, 502 S.E.2d 49, 52 (citing N.C.G.S. § 8-3), disc.
rev. denied, 349 N.C. 237, 516 S.E.2d 605 (1998). Further, the Court of Appeals has
consistently held that when evidence of the applicable law is not presented to the
trial court, the party seeking a determination of substantial similarity has failed to
meet its burden of establishing substantial similarity by a preponderance of the
evidence. See, e.g., State v. Burgess, 216 N.C. App. 54, 57-58, 715 S.E.2d 867, 870
(2011) (holding that the State failed to present sufficient evidence of out-of-state
convictions’ similarity to North Carolina offenses when, inter alia, the State provided
copies of the 2008 version of the applicable out-of-state statutes, but did not present
evidence that the statutes were unchanged from the 1993 and 1994 versions under
which the defendant had been convicted); State v. Wright, 210 N.C. App. 52, 70-72, 708
S.E.2d 112, 125-26 (holding that when the State did not provide evidence of the New
York and Connecticut statutes under which the defendant had been convicted, did not
submit copies of the applicable out-of-state statutes, and did not furnish a comparison
of the statutes’ provisions with the laws of North Carolina, the State failed to
demonstrate the substantial similarity of the out-of-state convictions to North Carolina
crimes), disc. rev. denied, 365 N.C. 200, 710 S.E.2d 9 (2011); State v. Morgan, 164 N.C.
App. 298, 309, 595 S.E.2d 804, 812 (2004) (holding that the State failed to meet its
burden of showing that the defendant’s prior conviction was substantially similar to a
North Carolina offense when it offered the 2002 version of the applicable New Jersey
statute governing the defendant’s 1987 New Jersey conviction, but failed to present any
evidence that the statute was unchanged from 1987 to 2002).
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STATE V. SANDERS
Opinion of the Court
Section 39-13-111 of the Tennessee Code Annotated provides that “[a] person
commits domestic assault who commits an assault as defined in § 39-13-101 against
a domestic abuse victim.” Tenn. Code Ann. § 39-13-111(b) (2009). Section 39-13-
101 of the Tennessee Code Annotated, in turn, establishes that someone commits an
“assault” when he or she: “(1) Intentionally, knowingly or recklessly causes bodily
injury to another; (2) Intentionally or knowingly causes another to reasonably fear
imminent bodily injury; or (3) Intentionally or knowingly causes physical contact
with another and a reasonable person would regard the contact as extremely
offensive or provocative.” Id. § 39-13-101(a)(1)-(3) (2009). Here the State provided
the trial court with a photocopy of the 2009 version2 of Tenn. Code Ann. § 39-13-111,
but did not give the trial court a photocopy of Tenn. Code Ann. § 39-13-101.
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. We therefore
hold that it was error for the trial court to determine that Tenn. Code Ann. § 39-13-
111 was substantially similar to a North Carolina offense without reviewing Tenn.
2 We note that the 2009 version was not, in fact, the version of the statute
actually in force at the time of defendant’s Tennessee conviction. After defendant
was convicted on 6 January 2009, the statute was amended to add subsection (c)(3).
Tenn. Code Ann. § 39-13-111 (2009) (showing the effective date of the 2009
amendment to Tenn. Code Ann. § 39-13-111 as 1 July 2009).
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Opinion of the Court
Code Ann. § 39-13-101, which is explicitly referenced by Tenn. Code Ann. § 39-13-
111 and defines Tennessee’s statutory elements of assault.
Second, the State argues the trial court did not err in its determination that
the Tennessee offense of “domestic assault” and the North Carolina offense of
“assault on a female” were substantially similar. The State urges this Court to look
beyond the elements of the offenses and consider (1) the underlying facts of
defendant’s out-of-state conviction, and (2) whether, considering the legislative
purpose of the respective statutes defining the offenses, the North Carolina offense
is “suitably equivalent” to the out-of-state offense.
In North Carolina, “any person who commits [an] assault” is guilty of a class
A1 misdemeanor “if, in the course of the assault, . . . he or she . . . [a]ssaults a
female, he being a male person at least 18 years of age.” N.C.G.S. § 14-33(c), (c)(2)
(2013). The offense “assault on a female” thus requires that (1) the assailant be
male, (2) the assailant be at least eighteen years old, and (3) the victim of the
assault be female. Id., § 14-33(c)(2). The offense does not require that any type of
relationship exist between the assailant and the victim.
In comparison, a person in Tennessee is guilty of the offense of domestic
assault if that person “commits an assault as defined in § 39-13-101 against a
domestic abuse victim.” Tenn. Code Ann. § 39-13-111(b) (2009). Subsection 39-13-
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Opinion of the Court
111(a) of the Tennessee statutes specifically defines a “domestic abuse victim” as
“any person who falls within the following categories:”
(1) Adults or minors who are current or former spouses;
(2) Adults or minors who live together or who have lived
together;
(3) Adults or minors who are dating or who have dated or
who have or had a sexual relationship, but does not
include fraternization between two (2) individuals in a
business or social context;
(4) Adults or minors related by blood or adoption;
(5) Adults or minors who are related or were formerly
related by marriage; or
(6) Adult or minor children of a person in a relationship
that is described in subdivisions (a)(1)-(5).
Tenn. Code Ann. § 39-13-111(a) (2009). The offense thus requires that the person
being assaulted fall within at least one of these six enumerated categories of
domestic relationships. The offense does not require the victim to be female or the
assailant to be male and of a certain age.
The Court of Appeals has stated, and we agree, that “[d]etermination of
whether the out-of-state conviction is substantially similar to a North Carolina
offense is a question of law involving comparison of the elements of the out-of-state
offense to those of the North Carolina offense.” State v. Fortney, 201 N.C. App. 662,
671, 687 S.E.2d 518, 525 (2010) (citing State v. Hanton, 175 N.C. App. 250, 255, 623
S.E.2d 600, 604 (2006)). The Court of Appeals has appropriately determined certain
offenses to be insufficiently similar by comparing the elements of out-of-state and
North Carolina offenses. See, e.g., State v. Hogan, ___ N.C. App. ___, ___, 758
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STATE V. SANDERS
Opinion of the Court
S.E.2d 465, 474 (concluding that the New Jersey offense of third-degree theft is not
substantially similar to the North Carolina offense of misdemeanor larceny “[g]iven
the disparity in elements” between the definitions of the two offenses), appeal
dismissed and disc. rev. denied, ___ N.C. ___, 762 S.E.2d 465 (2014); Hanton, 175
N.C. App. at 258-59, 623 S.E.2d at 606 (determining that the New York offense of
second-degree assault is not substantially similar to the North Carolina offense of
assault inflicting serious injury because, unlike the North Carolina offense, the New
York offense does not require that the defendant cause “serious” physical injury).
After comparing the elements of the Tennessee offense of “domestic assault” and the
North Carolina offense of “assault on a female,” we must conclude that the offenses
are not substantially similar. 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.
We therefore hold that the trial court erred in determining the two offenses to
be substantially similar. Accordingly, we affirm the holding of the Court of Appeals
on this issue and remand this case to the Court of Appeals for further remand to the
trial court for resentencing consistent with this opinion.
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STATE V. SANDERS
Opinion of the Court
AFFIRMED AND REMANDED.
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