State v. Hogan

NO. COA13-1284
NORTH CAROLINA COURT OF APPEALS
Filed: 3 June 2014
STATE OF NORTH CAROLINA
v. Johnston County
No. 12CRS055655
FRANCIS MARIUS HOGAN, JR.,
Defendant.
Appeal by defendant from Judgment entered 12 March 2013 and
Order entered 26 February 2013 by Judge Thomas H. Lock in
Superior Court, Johnston County. Heard in the Court of Appeals
20 March 2014.
Attorney General Roy A. Cooper III, by Special Deputy
Attorney General Lars F. Nance, for the State.
Michele Goldman, for defendant-appellant.
STROUD, Judge.
Francis Hogan, Jr. (“defendant”) appeals from the judgment
entered 12 March 2013 after he pled guilty to assault by
strangulation and from the order entered 26 February 2013
denying in part his motion to suppress statements he made to
police. We affirm the trial court’s order denying defendant’s
motion to suppress in part and find no error in sentencing.
I. Background
-2-
Defendant was indicted for assault on a female and assault
by strangulation on 3 December 2012. The indictments alleged
that defendant had assaulted Karen Teixeira by pushing her
against a wall and by putting his hands around her neck and
choking her. Defendant moved to suppress statements he made to
police when they responded to the home that he and Ms. Teixeira
shared.
On 16 September 2012, Deputy Reliford and Deputy Carroll of
the Johnston County Sheriff’s Office responded to a call
reporting a domestic disturbance at a residence in Princeton.
After they entered the house, they found defendant hiding in a
closet which also contained “an engine and various engine parts”
and the deputies were concerned that these objects may contain a
hidden weapon. When defendant came out of the closet, Deputy
Reliford put handcuffs on him and explained that he was doing
this for “officer safety reasons.” Defendant began acting
“aggressively” toward Ms. Teixeira and her son and “telling them
that he was going to have them removed from the home.” Deputy
Reliford walked defendant out to the back deck to help him calm
down and to be able to talk to him “outside the presence of
defendant’s girlfriend, the victim.” While they were on the back
deck, Deputy Carroll left to respond to another call, thus
-3-
leaving Deputy Reliford alone with defendant, the victim, and
her son. On the back deck, Deputy Reliford began asking
defendant questions about what had happened. Deputy Reliford did
not advise defendant of his Miranda rights. Defendant made
incriminating statements in response to Deputy Reliford’s
questions.
Deputy Reliford then asked Ms. Teixeira to come out to the
back porch. He observed bruising on her neck and asked how she
got the bruises. She stated that defendant put his hand around
her neck and picked her up. She also stated that he had pushed
her into a wall. Defendant then interjected that he put his hand
around Ms. Teixeira’s neck and squeezed and that he had pushed
her into a wall. Deputy Reliford then placed defendant under
arrest.
The trial court granted the motion in part and denied it in
part. It concluded that defendant was in custody during his
interactions with Deputy Reliford. It therefore suppressed the
statements defendant made in response to Deputy Reliford’s
direct questions. However, it concluded that defendant’s second
statement was “spontaneous,” and not made in response to any
questions posed to him by Deputy Reliford. It further concluded
that asking Ms. Teixeira what happened in front of defendant was
-4-
not the functional equivalent of interrogation. Therefore, the
trial court denied defendant’s motion to suppress those
statements. It entered a written order finding the facts as
summarized above on 26 February 2013.
Defendant entered an Alford guilty plea to assault by
strangulation on 6 March 2013, but specifically reserved his
right to appeal the partial denial of his motion to suppress.
The State dismissed the assault on a female charge. On 12 March
2013, the trial court entered judgment sentencing defendant to a
mitigated term of 9-20 months imprisonment, suspended for 30
months of supervised probation. That same day, defendant filed
written notice of appeal from both the judgment and the order
denying his motion to suppress in part.
II. Motion to Suppress
Defendant argues that the trial court erred in denying his
motion to suppress his second statement to police because he was
subjected to custodial interrogation without the benefit of
Miranda warnings. He further contends that several of the trial
court’s findings of fact are unsupported by competent evidence.
A. Standard of Review
It is well-established that the standard of
review in evaluating a trial court’s ruling
on a motion to suppress is that the trial
court’s findings of fact are conclusive on
-5-
appeal if supported by competent evidence,
even if the evidence is conflicting. . . .
[However,] the trial court’s determination
of whether an interrogation is conducted
while a person is in custody . . . involves
reaching a conclusion of law, which is fully
reviewable on appeal.
State v. Crudup, 157 N.C. App. 657, 659, 580 S.E.2d 21, 23
(2003) (citations, quotation marks, and brackets omitted).
Thus, we must first determine whether there is competent
evidence to support the challenged findings of fact. We will
then review de novo the trial court’s conclusion of law as to
whether defendant was subject to custodial interrogation. See
State v. Biber, 365 N.C. 162, 168, 712 S.E.2d 874, 878 (2011)
(“Conclusions of law are reviewed de novo and are subject to
full review. Under a de novo review, the court considers the
matter anew and freely substitutes its own judgment for that of
the lower tribunal.”(citations and quotation marks omitted)).
B. Findings of Fact
We first address defendant’s challenge to the findings of
fact. The trial court found that:
1. The defendant is charged with Assault
on a Female and Assault by Strangulation.
2. On September 16, 2012, Deputy R.L.
Reliford of the Johnston County Sheriff’s
Office responded to a domestic disturbance
at [a residence] in Princeton.
-6-
3. The residence was the home of defendant
and Karen Tiexeira [sic].
4. Upon entering the home, Deputies Paige
Carroll and Reliford found defendant hiding
in a closet and detained the defendant by
putting him in handcuffs when he came out of
the closet.
5. The closet in which defendant was
hiding contained an engine and various
engine parts. The deputies were concerned
these objects may have contained a hidden
weapon.
6. As the defendant stepped out of the
closet, Deputy Reliford informed the
defendant to put his hands up and then
placed him in handcuffs. Deputy Reliford
testified that he told the defendant that he
was doing this for officer safety reasons.
7. During the time the defendant had been
handcuffed, the defendant was acting
aggressively toward his girlfriend and her
son by telling them he was going to have
them removed from the home.
8. In an effort to calm the defendant
down, Deputy Reliford walked the defendant
to the back deck to sit down so that he
could speak with him about the incident
outside the presence of the defendant’s
girlfriend, the victim.
9. At this time, Deputy Carroll left the
residence in order to respond to another
call.
10. After sitting down on the back deck,
the defendant made incriminating statements
regarding the domestic disturbance to Deputy
Reliford in response to questioning by
-7-
Deputy Reliford. Prior to this point, Deputy
Reliford had not Mirandized the defendant.
11. Deputy Reliford asked the victim, Karen
Tiexara [sic], to come out to the back deck
where he observed red marks, swelling and
bruising around her neck.
12. Deputy Reliford asked the victim how
she got the marks on her neck and she
responded by saying that Francis [defendant]
put his hand around her neck several times
and picked her up while he had his hand
around her neck.
13. The victim also stated that the
defendant had pushed her into a wall.
14. The defendant then spontaneously stated
that he put his hand around . . . [his
girlfriend’s] neck and squeezed and that he
pushed her into the wall.
15. Neither the victim nor Deputy Reliford
were speaking to the defendant when he
spontaneously uttered this statement.
16. Deputy Reliford then placed the
defendant under arrest for Assault on a
Female and Assault by Strangulation.
Defendant contends that finding 9 is unsupported by
competent evidence because there was no evidence that Deputy
Carroll left before defendant’s girlfriend was asked to step
outside. He also argues that findings 14 and 15 contain
conclusions of law in that they characterize his statement as
spontaneous. Deputy Carroll testified at the suppression hearing
that she remained in the house a short time after defendant had
-8-
been brought outside before receiving another call and leaving.
Deputy Reliford testified that he brought defendant out to the
back deck to speak with him and that after speaking about what
happened, he opened the door and asked Deputy Carroll to send
Ms. Teixeira out. Although the testimony of the officers was
somewhat contradictory as to the timing of when Deputy Carroll
left, it was proper for the trial court to resolve these
evidentiary conflicts. State v. Jones, 161 N.C. App. 615, 623,
589 S.E.2d 374, 378 (2003) (“It is the trial court’s duty to
resolve any conflicts and contradictions that may exist in the
evidence.” (citation and quotation mark omitted)), app.
dismissed and disc. rev. denied, 358 N.C. 379, 597 S.E.2d 770(2004). Moreover, the exact timing of when Deputy Carroll left
is not material to the legal issues. It is clear that Deputy
Carroll left the residence while Deputy Reliford was still
trying to investigate what had happened, leaving just one
officer with the responsibility of dealing with both defendant
and Ms. Teixeira.1
Defendant also contends that the trial court’s
1
Deputy Carroll also testified that normally two officers
responded to calls for domestic disturbances for officer safety
reasons. Deputy Reliford explained that he had previously
“taken someone into custody and actually had to fight the other
party. So they can get dangerous.”
-9-
characterization of his statements as “spontaneous” were
actually conclusions of law, not findings of fact. We agree. The
issue of whether defendant’s statements were spontaneous or in
response to police interrogation is the central legal issue in
question, as discussed below. See State v. Hipps, 348 N.C. 377,
395, 501 S.E.2d 625, 636 (1998), cert. denied, 525 U.S. 1180,
143 L.Ed. 2d 114 (1999). Therefore, we will consider all of the
trial court’s findings regarding the spontaneity of defendant’s
statements as conclusions of law.
C. Interrogation or Its Functional Equivalent
Next, we must determine whether the trial court correctly
concluded that the questioning of defendant’s girlfriend in his
presence did not constitute the functional equivalent of
questioning and that defendant’s statements were spontaneous.
“The Miranda warnings and waiver of counsel are required
only when an individual is being subjected to custodial
interrogation. ‘Custodial interrogation’ means questioning
initiated by law enforcement officers after a person has been
taken into custody or otherwise deprived of his freedom of
action in any significant way.” State v. Kincaid, 147 N.C. App.
94, 101, 555 S.E.2d 294, 300 (2001) (citation and quotation
marks omitted).
-10-
The trial court concluded that defendant was in custody
during the entirety of his interactions with police. This
determination has not been challenged by either party. The trial
court concluded, however, that his statements to police after
his girlfriend was brought outside were not in response to
police interrogation. Specifically, the trial court concluded
that defendant’s statements were spontaneous and not in response
to police questioning or its functional equivalent.
[T]he Miranda safeguards come into play
whenever a person in custody is subjected to
either express questioning or its functional
equivalent. That is to say, the term
“interrogation” under Miranda refers not
only to express questioning, but also to any
words or actions on the part of the police
(other than those normally attendant to
arrest and custody) that the police should
know are reasonably likely to elicit an
incriminating response from the suspect. The
latter portion of this definition focuses
primarily upon the perceptions of the
suspect, rather than the intent of the
police. This focus reflects the fact that
the Miranda safeguards were designed to vest
a suspect in custody with an added measure
of protection against coercive police
practices, without regard to objective proof
of the underlying intent of the police. A
practice that the police should know is
reasonably likely to evoke an incriminating
response from a suspect thus amounts to
interrogation. But, since the police surely
cannot be held accountable for the
unforeseeable results of their words or
actions, the definition of interrogation can
extend only to words or actions on the part
-11-
of police officers that they should have
known were reasonably likely to elicit an
incriminating response.
Rhode Island v. Innis, 446 U.S. 291, 300-02, 64 L.Ed. 2d 297,
307-08 (1980) (footnotes omitted). “Volunteered statements of
any kind are not barred by the Fifth Amendment.” State v. James,
215 N.C. App. 588, 593, 715 S.E.2d 884, 888 (2011) (citation,
quotation marks, and brackets omitted).
Defendant argues that asking his girlfriend what happened
in front of him is akin to the coercive techniques discussed in
Innis and Miranda.
The questioned practices [in Miranda]
included the use of lineups in which a
coached witness would pick the defendant as
the perpetrator, the so-called ‘reverse
line-up’ in which a defendant would be
identified by coached witnesses as the
perpetrator of a fictitious crime, and a
variety of psychological ploys, such as to
posit the guilt of the subject, to minimize
the moral seriousness of the offense, and to
cast blame on the victim or on society.
Arizona v. Mauro, 481 U.S. 520, 526, 95 L.Ed. 2d 458, 466 (1987)
(citations, quotation marks, ellipses, and brackets omitted).
The Miranda court was concerned with the coercive nature of
these practices. In re D.A.C., ___ N.C. App. ___, ___, 741
S.E.2d 378, 383 (2013) (noting that “the sole concern of the
-12-
Fifth Amendment, on which Miranda was based, is governmental
coercion” (citation, quotation marks, and brackets omitted)).
Deputy Reliford’s questioning of defendant’s girlfriend was
entirely unlike the coercive interrogation with which Miranda
and its progeny are concerned. See State v. Meadows, 272 N.C.
327, 337, 158 S.E.2d 638, 644-45 (1968) (“The four cases decided
by Miranda shared salient features, among which was
incommunicado interrogation of individuals in a police-dominated
atmosphere.” (citation and quotation marks omitted)). The deputy
was investigating an ongoing situation, attempting to figure out
whether a crime was even committed. He asked defendant’s
girlfriend how she got the marks on her neck. She had not
already incriminated defendant. The deputy could not have known
what her response could be—she could have inculpated or
exculpated defendant. In addition, since Deputy Carroll had to
leave to respond to another call, only one officer was left to
deal with both defendant and the victim. Although this case is a
close one, we conclude that the deputy’s question to Ms.
Teixeira “did not constitute the functional equivalent of
questioning because the officer’s [question] did not call for a
response from defendant and therefore cannot be deemed as
reasonably likely to elicit an incriminating response from
-13-
defendant.” State v. Gantt, 161 N.C. App. 265, 269, 588 S.E.2d
893, 896 (2003), disc. rev. denied, 358 N.C. 157, 593 S.E.2d 83(2004); see also, Meadows, 272 N.C. at 337, 158 S.E.2d at 645(“A general investigation by police officers, when called to the
scene of a shooting, automobile collision, or other occurrence
calling for police investigation, including the questioning of
those present, is a far cry from the ‘in-custody interrogation’
condemned in Miranda.”).
This case is distinguishable from State v. Fuller, 270 N.C.
710, 155 S.E.2d 286 (1967), cited by defendant. In Fuller, the
police were interviewing the witness to an assault in the
presence of the defendant. Fuller, 270 N.C. at 713, 155 S.E.2d
at 288. The officers warned defendant that anything he said or
did not say in response to the witness’ statement could be used
against him. Id. at 713-14, 155 S.E.2d at 288. The witness said
that the defendant had used a baseball bat to assault the
victim. Id. at 713, 155 S.E.2d at 288. The officers then asked
the defendant if he had anything to say in response. Id. The
defendant stated, “Yes, I hit the man, but I did not think I hit
him that hard.” Id. The Supreme Court held that the statement
was inadmissible because the police had incorrectly informed him
-14-
that his silence could be used against him. Id. at 715, 155
S.E.2d at 289. The Court explained,
To make a prisoner listen to an accuser with
the admonition that if he talks or doesn’t
talk—to be damned if he does, and to be
damned if he doesn’t—is to put him in an
impossible position. It violates the rights
of the captive audience, which constitutes
reversible error.
Id.This case is distinguishable from Fuller in two important
respects. First, and perhaps most importantly, the police in
Fuller directly asked the defendant to respond to the witness’
statement. Here, by contrast, Deputy Reliford did not ask
defendant to say anything in response to Ms. Teixeira’s
statement. Second, the officers in Fuller warned the defendant
that any response or his silence could be used against him,
which “put him in an impossible position.” Id. There was no such
improper warning here. Therefore, we conclude that Fuller does
not require suppression of defendant’s statement.
For the foregoing reasons, we hold that the trial court
correctly concluded that defendant’s statements in response to
those of Ms. Teixiera were spontaneous and not the result of
custodial interrogation. The deputy’s question of Ms. Teixiera
was not the functional equivalent of questioning defendant.
-15-
Therefore, we affirm the trial court’s order denying defendant’s
motion to suppress these statements.
III. Sentencing
Defendant next argues that the trial court erred in
calculating his prior record level because it counted a New
Jersey theft conviction as a Class I felony when it is not
considered a felony under New Jersey law, and, in any event,
should have been classified as a misdemeanor because it is
substantially similar to a North Carolina misdemeanor.
Defendant was convicted on 9 February 1995 of fourth degree
theft in Morris County, New Jersey. On 21 April 1995, he was
convicted of third degree theft and fourth degree theft, also in
Morris County, New Jersey. The trial court found that the 9
February 1995 conviction was substantially similar to
misdemeanor theft in North Carolina and classified it as a Class
1 misdemeanor. The trial court found that the third degree theft
conviction, by contrast, was a felony in New Jersey and
classified it as a Class I felony.
Defendant argues that because New Jersey does not use the
term “felony” to classify its offenses, the trial court could
not properly determine that third degree theft is a felony for
sentencing purposes. It is true that the New Jersey criminal
-16-
code does not use the term “felony.” State v. Smith, 181 A.2d
761, 767 (N.J. 1962), cert. denied, 374 U.S. 835, 10 L.Ed. 2d
1055 (1963). Instead, all crimes are classified as a crime of
the first, second, third, or fourth degree. N.J. Stat. Ann. §
2C:43-1 (2011). Other, more minor offenses are classified as
“disorderly person offense[s].” See N.J. Stat. Ann. § 2C:43-8
(2011). Theft may be classified as a second, third, or fourth
degree offense, or as a disorderly person offense, depending on
the nature of the crime and the value of the property taken.
N.J. Stat. Ann. § 2C:20-2 (2011). Defendant was convicted of a
third degree theft offense.
Under New Jersey law, a court may sentence a defendant
convicted of a third degree offense to a specific term of
imprisonment between three and five years. N.J. Stat. Ann. §
2C:43-6 (2011). A crime of the fourth degree is punishable by up
to 18 months imprisonment. Id. The New Jersey Supreme Court
has held that crimes “punishable by imprisonment for more than a
year in state prison” are comparable to common law felonies.
State v. Doyle, 200 A.2d 606, 614 (N.J. 1964). New Jersey courts
have clearly recognized that their third-degree crimes are
felonies by a different name. See United States v. Brown, 937
F.2d 68, 70 (2d Cir. 1991) (“[U]nder New Jersey law, offenses
-17-
punishable by more than one year in prison constitute common-law
felonies.”); Kaplowitz v. State Farm Mut. Auto Ins. Co., 493
A.2d 637, 640 (N.J. Super. Ct. Law Div. 1985) (“[O]ffenses that
are punishable by more than one year in state prison should be
treated as common law felonies.”).
We recognize that there are several cases in which this
Court has decided that New Jersey convictions cannot count as
“felonies” for the purpose of habitual felon charges. See, e.g.,
State v. Lindsey, 118 N.C. App. 549, 455 S.E.2d 909 (1995),
State v. Carpenter, 155 N.C. App. 35, 573 S.E.2d 668 (2002),
disc. rev. dismissed and cert. denied, 356 N.C. 681, 577 S.E.2d
896 (2003), and State v. Moncree, 188 N.C. App. 221, 655 S.E.2d
464 (2008). None of these cases analyzes the meaning of
“misdemeanor” or “high misdemeanor” under New Jersey law.2 They
simply conclude that because the crimes were not “certified” as
felonies under New Jersey law or called “felonies” they could
not be considered felonies for purposes of the habitual felon
2
New Jersey used to classify some serious crimes as misdemeanors
or “high misdemeanors.” See, e.g., State v. Sisler, 827 A.2d
274, 276 (N.J. 2003) (noting that production of child
pornography was classified as a “high misdemeanor”). Under the
modern statutes, a “high misdemeanor” is equivalent to a crime
of the third degree for sentencing, and to a crime of the first,
second, or third degree for other purposes. N.J. Stat. Ann. §
2C:43-1(b); N.J. Stat. Ann. § 2C:1-4 (2011). A “misdemeanor” is
equivalent to a crime of the fourth degree for sentencing. N.J.
Stat. Ann. § 2C:43-1(a).
-18-
statute. Applied to the sentencing context, the rule in these
cases would suggest that the State can never use a New Jersey
conviction to establish prior record points without proving that
the offense is substantially similar to a North Carolina
offense. There is no suggestion in the sentencing statutes that
the Legislature intended to single out New Jersey convictions
for such unfavorable treatment.
Even if we were to assume that we must apply these cases to
N.C. Gen. Stat. § 15A-1340.14, this case is distinguishable in
that the State presented a “certification” that third degree
theft is considered a felony in New Jersey. In Lindsey, the
first case in which we suggested that a New Jersey offense could
not be considered a felony because it was not labeled as such,
we hinted that the State could nevertheless show it was a felony
by providing certification from some official that it was a
felony. Lindsey, 118 N.C. App. at 553, 455 S.E.2d at 912.
Here, the State introduced a criminal history record from
the “NLETS” system, containing defendant’s “New Jersey Criminal
History Detailed Record” (original in all caps). The printout
contained a statement that “This record is certified as a true
copy of the criminal history record information on file for the
assigned state identification number” (original in all caps).
-19-
The record listed defendant’s theft convictions as “felony
conviction[s]” (original in all caps). Therefore, even if the
fact that New Jersey considers third degree offenses to be the
same as common law felonies is alone insufficient, we hold that
this certification is sufficient under Lindsey. Moreover, given
our review of New Jersey law above, this certification appears
to accurately reflect the law as understood by the courts of
that state.
Finally, defendant contends that even if third degree theft
is a felony in New Jersey, it is substantially similar to
misdemeanor larceny in North Carolina and the trial court erred
in failing to classify it as a misdemeanor. We disagree.
The principal error in defendant’s argument is that he
confuses what he is required to show to prove that an out-of-
state felony is substantially similar to a North Carolina
misdemeanor. Under N.C. Gen. Stat. § 15A-1340.14(e), if the
State establishes that the defendant has an out-of-state felony
conviction, it is by default considered a Class I felony,
regardless of whether it is substantially similar to a North
Carolina felony. State v. Hinton, 196 N.C. App. 750, 755, 675
S.E.2d 672, 675 (2009). The State is not required to show any
substantial similarity in that context. Id. However, the
-20-
defendant may still show that the out-of-state felony is
substantially similar to a North Carolina misdemeanor. N.C. Gen.
Stat. § 15A-1340.14(e). The defendant bears the burden of
showing substantial similarity in that case. State v. Crawford,
___ N.C. App. ___, ___, 737 S.E.2d 768, 770, disc. rev. denied,
___ N.C. ___, 743 S.E.2d 196 (2013).
Here, defendant failed to show that third degree theft in
New Jersey is substantially similar to a North Carolina
misdemeanor. Essentially, he argues that because third degree
theft is not substantially similar to felony larceny in North
Carolina, it must be substantially similar to misdemeanor
larceny. But that analysis flips the burden of proof. It is
defendant who must show that third degree theft is substantially
similar to misdemeanor larceny; the State is not required to
show that it is more similar to felony larceny than misdemeanor
larceny.
New Jersey defines “theft” as the “involuntary transfer of
property; the actor appropriates property of the victim without
his consent or with consent obtained by fraud or coercion.”
State v. Talley, 466 A.2d 78, 81 (N.J. 1983) (citation and
quotation marks omitted). A person is guilty of third degree
theft in New Jersey if
-21-
(a) The amount involved exceeds $500.00 but
is less than $75,000.00;
(b) The property stolen is a firearm, motor
vehicle, vessel, boat, horse, domestic
companion animal or airplane;
(c) The property stolen is a controlled
dangerous substance or controlled substance
analog as defined in N.J.S.2C:35-2 and the
amount involved is less than $75,000.00 or
is undetermined and the quantity is one
kilogram or less;
(d) It is from the person of the victim;
(e) It is in breach of an obligation by a
person in his capacity as a fiduciary and
the amount involved is less than $50,000.00;
(f) It is by threat not amounting to
extortion;
(g) It is of a public record, writing or
instrument kept, filed or deposited
according to law with or in the keeping of
any public office or public servant;
(h) The property stolen is a person’s
benefits under federal or State law, or from
any other source, which the Department of
Human Services or an agency acting on its
behalf has budgeted for the person’s health
care and the amount involved is less than
$75,000.00;
(i) The property stolen is any real or
personal property related to, necessary for,
or derived from research, regardless of
value, including, but not limited to, any
sample, specimens and components thereof,
research subject, including any warm-blooded
or cold-blooded animals being used for
research or intended for use in research,
-22-
supplies, records, data or test results,
prototypes or equipment, as well as any
proprietary information or other type of
information related to research;
(j) The property stolen is a New Jersey
Prescription Blank as referred to in
R.S.45:14-14;
(k) The property stolen consists of an
access device or a defaced access device; or
(l) The property stolen consists of
anhydrous ammonia and the actor intends it
to be used to manufacture methamphetamine.
N.J. Stat. Ann. § 2C:20-2(3).
In North Carolina, a person commits misdemeanor larceny if
he takes and carries away the property of another valued less
than $1,000 with the intent to permanently deprive the rightful
owner of it, unless one of the circumstances in N.C. Gen. Stat.
§ 14-72(b) applies, in which case it is a felony regardless of
value. N.C. Gen. Stat. § 14-72 (2013); State v. Sheppard, ___
N.C. App. ___, ___, 744 S.E.2d 149, 151 (2013). Some of the
circumstances of felony larceny are the same both in North
Carolina and New Jersey. For instance, in both states, larceny
from the person and larceny of a firearm constitute a more
serious offense, regardless of value. See N.C. Gen. Stat. § 14-
72(b)(1), (4); N.J. Stat. Ann. § 2C:20-2 (b)(2)(b), (d). As
defendant correctly points out, there are many more ways to
-23-
commit third degree theft in New Jersey than felony larceny in
North Carolina. Yet, that is not the relevant question.
Defendant was required to prove that third degree theft is
substantially similar to misdemeanor larceny, not that it is
dissimilar from felony larceny. Given the disparity in elements
between our definition of misdemeanor larceny and New Jersey’s
definition of third degree theft, defendant cannot show that
they are substantially similar.
We hold that the trial court did not err in concluding that
third degree theft is not substantially similar to misdemeanor
larceny. There are many elements of third degree theft not found
in misdemeanor larceny. Several of these possible elements, such
as theft from a person, would also make the larceny a felony in
North Carolina. Therefore, the New Jersey crime of third degree
theft is not substantially similar to North Carolina’s
misdemeanor larceny. In sum, there was no error in defendant’s
sentencing.
IV. Conclusion
For the foregoing reasons, we affirm the trial court’s
order denying defendant’s motion to suppress in part and find no
error in sentencing.
AFFIRMED; NO ERROR.
-24-
Judges HUNTER, JR., Robert N. and DILLON concur.