                              NO. COA13-750

                     NORTH CAROLINA COURT OF APPEALS

                          Filed: 4 February 2014


STATE OF NORTH CAROLINA

        v.                             Beaufort County
                                       No. 06 CRS 053372
RONDELL LUVELL SANDERS


     Appeal by Defendant from judgment entered 15 February 2013 by

Judge Wayland J. Sermons, Jr. in Superior Court, Beaufort County.

Heard in the Court of Appeals 19 November 2013.


     Attorney General Roy Cooper, by Assistant Attorney General
     David L. Gore, for the State.

     W. Michael Spivey for Defendant.


     McGEE, Judge.


     Rondell Luvell Sanders (“Defendant”) appeals from his re-

sentencing for robbery with a dangerous weapon.         In an earlier

appeal to this Court, Defendant asserted error in the prior record

level    determination,   which   included    points   based   on   the

substantial similarity of Tennessee offenses to North Carolina

offenses. This Court remanded for resentencing because it appeared

the trial court compared the punishments, rather than comparing

the elements of the offenses.      State v. Sanders, ___ N.C. App.

___, 736 S.E.2d 238 (2013).
                                -2-
                       I. Standard of Review

     The “question of whether a conviction under an out-of-state

statute is substantially similar to an offense under North Carolina

statutes is a question of law requiring de novo review on appeal.”

State v. Fortney, 201 N.C. App. 662, 669, 687 S.E.2d 518, 524

(2010) (internal quotation marks omitted).

               II. Date of Prior Tennessee Offenses

     Defendant argues the trial court erred by assigning points

for Tennessee convictions because the State did not prove the

Tennessee statutes were unchanged from the versions under which

Defendant was convicted.   We disagree.

     In State v. Burgess, ___ N.C. App. ___, 715 S.E.2d 867 (2011),

this Court remanded for resentencing when the State presented the

2008 versions of the out-of-state statutes and “presented no

evidence that the statutes were unchanged from the 1993 and 1994

versions under which [the] defendant had been convicted.” Burgess,

___ N.C. App. at ___, 715 S.E.2d at 870.

     In the present case, the State presented copies of judgments

to the trial court showing Defendant was convicted in Tennessee of

theft on 10 March 2009 and domestic assault on 6 January 2009.

Defendant contends the judgments do not show the date of the

offenses.   However, Defendant provides no support for his implied

assertion that the date of each offense is necessary to determine
                                 -3-
which version of the Tennessee criminal statute applied.

       It is true that, in North Carolina, the date of offense often

determines which version of a criminal statute applies. See, e.g.,

“An Act to Provide That If a Defendant Has Four or More Prior

Larceny Convictions, A Subsequent Larceny Offense is a Felony,”

2012 N.C. Sess. Laws ch. 154 § 2 (“This act becomes effective

December 1, 2012, and applies to offenses committed on or after

that date.”); “An Act to Amend the Law Concerning Assaults on

Governmental Officers and Employees and to Make It a Felony to

Assault a Governmental Officer or Employee with a Deadly Weapon,”

1991 N.C. Sess. Laws ch. 525 § 3 (“This act becomes effective

October 1, 1991, and applies to offenses committed on or after

that   date.    Prosecutions   for   offenses   committed   before   the

effective date of this act are not abated or affected by this

act[.]”).

       However, because Defendant cites no Tennessee authority to

show that statutory amendments in Tennessee operate in the same

manner as the North Carolina amendments above, we must assume the

State presented the correct versions of the Tennessee criminal

statutes at issue.    Defendant has thus not demonstrated error on

this basis.

  III. Substantial Similarity of Tennessee Offense of Theft to
         North Carolina Offense of Misdemeanor Larceny

       Defendant also argues the trial court erred in finding the
                                     -4-
Tennessee offense of theft substantially similar to the North

Carolina offense of misdemeanor larceny.

              If 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.   Gen.    Stat.   §   15A-1340.14(e)       (2011).      “For    each   prior

misdemeanor conviction as defined in this subsection, 1 point.”

N.C. Gen. Stat. § 15A-1340.14(b)(5).

       “Determination 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.”                    Fortney, 201

N.C. App. at 671, 687 S.E.2d at 525 (emphasis added); see also

State v. Sanders, ___ N.C. App. ___, ___, 736 S.E.2d 238, 240

(2013) (“the trial court must compare ‘the elements of the out-

of-state offense to those of the North Carolina offense”); State

v. Wright, 210 N.C. App. 52, 71, 708 S.E.2d 112, 126 (2011).

       Although the case law is clear that the determination as to

substantial similarity involves comparison of the elements of the

offenses,      the   determination   as    to    what     exactly    constitutes

substantial similarity remains unclear.              While N.C.G.S. § 15A-

1340.14(e) “provides that either the State or the defendant may
                                     -5-
prove that an offense for which the defendant was convicted in a

foreign jurisdiction is substantially similar to a North Carolina

offense, the statute does not give guidance as to how a trial court

is to make such a determination.”          State v. Phillips, ___ N.C.

App. ___, ___, 742 S.E.2d 338, 343 (2013) (citing State v. Hanton,

175 N.C. App. 250, 623 S.E.2d 600 (2006)).

      Defendant cites State v. Amanns, 2 S.W.3d 241 (Tenn. Crim.

App. 1999) for the elements of “theft of property.”            “In order to

obtain a conviction for theft, the State must prove (1) the

defendant knowingly obtained or exercised control over property;

(2) the defendant did not have the owner’s effective consent; and

(3) the defendant intended to deprive the owner of the property.”

Amanns, 2 S.W.3d at 244-45.

      The only difference between the elements of the offenses that

Defendant points out is that the Tennessee offense requires no

showing of permanent deprivation.          Defendant asserts that, if a

defendant simply “took a joyride on somebody’s horse, he would

violate Tennessee’s theft statute.”

      However, it appears that the court in Amanns was merely giving

a shortened recitation of the elements.          In a challenge to the

sufficiency of evidence in an attempted theft case, the Court of

Criminal Appeals of Tennessee considered whether the State showed

the   defendant   “possessed   the   requisite   intent   to    permanently
                                      -6-
deprive each of the owners of their automobiles.”                    State v.

Roberts, 943 S.W.2d 403, 410 (Tenn. Crim. App. 1996) (emphasis

added), overruled on other grounds by State v. Ralph, 6 S.W.3d 251

(Tenn. 1999). Thus, courts in Tennessee have held that Tennessee’s

theft statute requires an intention to permanently deprive the

owner of property.

       Defendant’s       contention     that    the     offenses    are     not

substantially similar on this basis is without merit.               The trial

court did not err in concluding the Tennessee offense of theft and

the North Carolina offense of larceny are substantially similar.

   IV. Substantial Similarity of Tennessee Offense of Domestic
    Assault to North Carolina Offense of Assault on a Female

       Defendant next argues the trial court erred in finding the

Tennessee offense of domestic assault substantially similar to the

North Carolina offense of assault on a female.                Defendant makes

two contentions in support of his argument.

             A. Necessity of Reviewing Applicable Statutes

       First,    Defendant   contends    “the   State   did   not   offer   the

Tennessee statute necessary to determine the elements of the

offense.”       The State presented a copy of Tenn. Code Ann. § 39-13-

111.    However, that statute refers to another statute which the

State did not provide to the trial court, namely, Tenn. Code Ann.

§ 39-13-101.

       The   Tennessee    domestic    assault   statute   reads:    “A    person
                                 -7-
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).    Both statutes are thus necessary to understanding the

elements of the Tennessee offense of domestic assault.     The record

contains no indication that the trial court considered both Tenn.

Code Ann. §§ 39-13-111 and 39-13-101.    Defendant has shown error

in the trial court’s determination under Fortney.

                      B. Substantial Similarity

     Second, Defendant contends the offenses are not substantially

similar because “the Tennessee statute is gender and age neutral

in its definition of ‘domestic abuse victims.’” The North Carolina

offense of assault on a female is set forth in N.C. Gen. Stat.

§ 14-33(c).

          [A]ny person who commits any assault, assault
          and battery, or affray is guilty of a Class A1
          misdemeanor if, in the course of the assault,
          assault and battery, or affray, he or
          she . . . [a]ssaults a female, he being a male
          person at least 18 years of age[.]

N.C. Gen. Stat. § 14-33(c)(2) (2011).

     By contrast, the Tennessee offense of domestic assault is as

follows: “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).    “Domestic abuse victim” is defined as

any person who falls within the following categories:

          (1) Adults or minors who are current or former
                                -8-
          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).

     An examination of the elements reveals that the North Carolina

offense of assault on a female and the Tennessee offense of

domestic assault are not substantially similar, especially given

that “the rule of lenity requires us to interpret [N.C.G.S. § 15A-

1340.14(e)] in favor of defendant.”      Phillips, ___ N.C. App. at

___, 742 S.E.2d at 343 (quoting Hanton, 175 N.C. App. at 259, 623

S.E.2d at 606).

     The Tennessee offense requires showing that the victim falls

into one of six categories.     The categories describe particular

relationships between the defendant and the victim.          By contrast,

the North Carolina offense of assault on a female requires no

showing as to a particular relationship between the defendant and
                                    -9-
the victim.

      A second significant difference between the offenses is that

the North Carolina offense requires the victim be female.                The

Tennessee offense does not require the victim be female.             Based on

these two significant differences, we must conclude the trial court

erred in finding that the Tennessee offense of domestic assault

was substantially similar to the North Carolina offense of assault

on a female.

      The dissent analyzes the facts of the Tennessee offense to

determine whether Defendant could be convicted of assault on a

female in North Carolina. As previously discussed, we are required

to compare the elements of the Tennessee offense to the elements

of the North Carolina offense.      “Determination 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.”      Fortney, 201 N.C. App. at 671, 687 S.E.2d at 525

(emphasis added); see also Sanders, ___ N.C. App. at ___, 736

S.E.2d at 240 (“the trial court must compare ‘the elements of the

out-of-state offense to those of the North Carolina offense”);

Wright, 210 N.C. App. at 71, 708 S.E.2d at 126.              The trial court

erred in finding that the Tennessee offense of domestic assault

was substantially similar to the North Carolina offense of assault
                              -10-
on a female.

                          V. Conclusion

     Defendant has demonstrated no error in the trial court’s

determination as to the Tennessee offense of theft.      However,

Defendant has shown error in the trial court’s determination as to

the Tennessee offense of domestic assault, and we remand for

resentencing.

     Affirmed in part; remanded in part for resentencing.

     Judge STROUD concurs.

     Judge BRYANT concurs in part and dissents in part by separate

     opinion.
                          NO. COA13-750

                 NORTH CAROLINA COURT OF APPEALS

                     Filed:   4 February 2014

STATE OF NORTH CAROLINA

     v.                              Beaufort County
                                     No. 06 CRS 053372
RONDELL LUVELL SANDERS


     BRYANT, Judge, concurring in part and dissenting in part.


     The majority opinion remands for resentencing based on its

determination that the trial court erred in finding that the

Tennessee offense of domestic assault was substantially similar to

the North Carolina offense of assault on a female.        Because I

believe the trial court did not err in finding that the Tennessee

offense of domestic assault is substantially similar to the North

Carolina offense of assault on a female, I respectfully dissent

from that portion of the majority opinion.         I concur in the

remainder of the majority opinion.

     Pursuant to N.C. Gen. Stat. § 15A-1340.14(e) (2011),

          [i]f the State proves by the preponderance of
          the evidence that an offense classified as
          either a misdemeanor or 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.
                                   -2-

     Here, the State presented the trial court with copies of Tenn.

Code Ann. § 39-13-111 and N.C. Gen. Stat. § 14-33(c).       The majority

opinion agrees with defendant’s argument that the trial court erred

in finding that T.C.A. § 39-13-111 and N.C.G.S. § 14-33(c) are

substantially similar.       This Court has held that in considering

whether a statute from another state is substantially similar to

a North Carolina statute “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, 312 (2008).

I find it inconceivable that this requirement of substantial

similarity is meant to pose an insurmountable burden for the State,

as each state is entitled to tailor its statutes as it sees fit.

Accordingly,   the   State    is   required   to   prove   merely   by   a

preponderance of the evidence — not by the higher standards of by

clear and convincing evidence or beyond a reasonable doubt — that

two statutes are substantially similar.

     North Carolina does not have a domestic assault statute.

Rather, domestic assault in North Carolina is recognized as a form

of assault, upon a female, by a male, under        N.C.G.S. § 14-33(c)1;


1 That N.C.G.S. § 14-33(c) is intended to address domestic assault
is further demonstrated by N.C. Gen. Stat. § 15A-534.1 (2011),
“Crimes of domestic violence,” which establishes specific
procedures for determining a defendant’s pretrial release “[i]n
                                  -3-

no other North Carolina statute is thus as suitably equivalent to

T.C.A. § 39-13-111 in addressing the specific elements of an

assault   upon   a   female.   Furthermore,   North   Carolina   has   no

statutory definition of assault, and assault is thus defined by

the common law.      State v. Roberts, 270 N.C. 655, 658, 155 S.E.2d

303, 305 (1967).     The majority agrees with defendant that because

the State did not present the trial court with both T.C.A. § 39-

13-111 and the statute to which it refers, T.C.A. § 39-13-101, the

State did not meet its burden of proving that T.C.A. § 39-13-111

and N.C.G.S. § 14-33(c) are substantially similar.      An examination

of T.C.A. § 39-13-111, “domestic assault,” reveals that it does

indeed reference T.C.A. § 39-13-101, “assault.”        However, as the

trial court examined the elements of assault in T.C.A. § 39-13-

111 in relation to the common law definition of assault, it was

unnecessary that T.C.A. § 39-13-101 accompany T.C.A. § 39-13-111

in order for the elements of assault in T.C.A. § 39-13-111 to be

defined and considered by the trial court.

     As defined by the common law, an assault is an unauthorized

touching which causes an offensive or harmful contact.             Such




all cases in which the defendant is charged with assault on,
stalking, communicating a threat to, or committing a felony
provided in Articles 7A, 8, 10, or 15 of Chapter 14 of the General
Statutes upon a spouse or former spouse or a person with whom the
defendant lives or has lived as if married . . . .”
                                  -4-

contact can occur between two people of any age or gender.        See

Roberts; see also State v. Hill, 6 N.C. App. 365, 369, 170 S.E.2d

99, 102 (1969) (“Where in a prosecution for assault . . . the

evidence tends to show assault on a female at least, it is not

error to fail to submit the question of guilt of simple assault.”).

In creating statutes which distinguish between types of assaults,

like domestic assault, these distinctions assist with governmental

goals such as identifying particular categories of offenders for

sentencing purposes.    See State v. Gurganus, 39 N.C. App. 395,

400, 250 S.E.2d 668, 672 (1979) (“[N.C.G.S. § 14-33] in its

entirety provides a logical pattern protecting the citizens of

North Carolina from acts of violence. Subsection (a) of the statute

establishes the crimes of assault, assault and battery and affray.

Subsection (b) and its subsections do not create additional or

separate   offenses.   Instead,   those   subsections   provide   for

differing punishments when the presence or absence of certain

factors is established.”).

     The majority appears to accept defendant’s argument that

T.C.A. § 39-13-111 is not substantially similar to N.C.G.S. § 14-

33(c) because T.C.A. § 39-13-111 is gender and age-neutral while

N.C.G.S. § 14-33(c) specifically applies to a male over the age of

18 assaulting a female. I find defendant’s argument to lack merit,

as the State of Tennessee could have chosen to charge defendant
                                    -5-

under its general assault statute, § 39-13-101.              Instead, by

charging defendant under the more specific statute for domestic

abuse, the State of Tennessee pursued the more specific and

relevant charge against defendant of committing assault upon a

female with whom he was in a relationship.        Moreover, the State of

Tennessee dismissed a charge of regular assault against defendant

at the same time it pursued the domestic abuse charge against him.

As such, the State of Tennessee demonstrated its intent to charge

defendant according to the elements of the most applicable statute.

Furthermore, an analysis of Tennessee case law indicates that the

domestic   abuse    statute   can   and   is   applied   specifically   in

situations where a male has assaulted a female with whom he had a

relationship.      Compare State v. Anderson, No. W2011-00139-CCA-R3-

CD, 2012 Tenn. Crim. App. LEXIS 707 (Sept. 5, 2012) (finding the

male defendant guilty of domestic assault under T.C.A. § 39-13-

111 where he admitted to choking and hitting his estranged wife);

State v. Boston, No. M2010-00919-CCA-R3-CD, 2011 Tenn. Crim. App.

LEXIS 779 (Oct. 18, 2011) (finding the male defendant guilty of

domestic assault for hitting his ex-wife during a fight and guilty

of aggravated assault for hitting his ex-wife’s male friend with

a board); State v. Parham, No. W2009-02576-CCA-R3-CD, 2010 Tenn.

Crim. App. LEXIS 1049 (Dec. 10, 2010) (finding the male defendant

guilty of domestic assault for severely beating his ex-girlfriend
                               -6-

with a fireplace log), remanded on other grounds, No. W2011-01276-

CCA-R3-CD, 2012 Tenn. Crim. App. LEXIS 788 (Sept. 26, 2012); State

v. Terrell, No. M2006-01688-CCA-R3-CD, 2008 Tenn. Crim. App. LEXIS

135 (Jan. 30, 2008) (discussing how domestic abuse under T.C.A. §

39-13-111 is a specific form of assault as defined in T.C.A. § 39-

13-101), with Fain v. State, No. M2009-01148-CCA-R3-PC, 2010 Tenn.

Crim. App. LEXIS 212 (Mar. 9, 2010) (finding defendant-mother

guilty of assault for beating her juvenile son); State v. Hall,

No. W2008-01875-CCA-R3-CD, 2010 Tenn. Crim. App. LEXIS 147 (Feb.

18, 2010) (finding the male defendant guilty of assault for

attacking the male victim with a frying pan); State v. Adkins, No.

M2007-01728-CCA-R3-CD, 2008 Tenn. Crim. App. LEXIS 994 (Dec. 4,

2008) (finding the male defendant guilty of assault upon two police

officers, one male and one female); State v. Elkins, 83 S.W.3d 706

(2002) (finding the male defendant guilty of assault and aggravated

sexual battery upon a juvenile girl).

     The record in the instant case offers additional evidence in

support of the statutory elements necessary to convict defendant

of assault upon a female: the judgment for domestic assault

indicates that defendant was to have no contact with the victim,

Ashley Blango, and to attend 24 domestic abuse counseling classes.

Moreover, defendant’s criminal history record indicates that he

has a neck tattoo which reads “Ashley.”    Although I acknowledge
                               -7-

defendant’s contention that “Ashley” is a unisex name, I find it

inconceivable that this evidence — (1) a neck tattoo with the name

“Ashley,” (2) a conviction for domestic assault, (3) a victim’s

name of Ashley, (4) an order to attend domestic abuse counseling

classes, and (5) an analysis of Tennessee case law showing how

T.C.A. § 39-13-111 is specifically used for instances where a male

has assaulted a female with whom he has a relationship — fails to

meet the State’s burden of proving substantial similarity between

the elements of the two relevant statutes by a preponderance of

the evidence.

     Of further note here is that T.C.A. § 39-13-111 states that

“[a] person commits domestic assault who commits an assault as

defined in § 39-13-101 against a domestic abuse victim.”   As such,

T.C.A. § 39-13-111 is clearly intended to be treated like an

assault as defined under T.C.A. § 39-13-101; the distinction

between these two statues is thus relevant only as to whether the

assault occurred in a domestic situation or not.     See State v.

Woosley, No. M2013-00578-CCA-R3-CD, 2013 Tenn. Crim. App. LEXIS

1045, at *15 (Nov. 26, 2013) (“Domestic assault is an "assault"

committed against a "domestic abuse victim." T.C.A. § 39-13-111(b)

(2010).   As charged in the indictment, an assault occurs when a

person "[i]ntentionally, knowingly, or recklessly causes bodily

injury to another[.]" Id. § 39-13-101(a)(1) (2010). A "domestic
                                            -8-

abuse victim" is [also] defined to include "[a]dults . . . who are

current or former spouses." Id. § 39-13-111(a)(1) (2010).”); see

also T.C.A. § 39-13-111(a)(2) ("[D]omestic abuse victim                        means .

.   .    [a]dults    .   .    .    who    live     together   or    who    have   lived

together[.]"); Id. § 39-13-101(a) (“A person commits assault who:

(1) [i]ntentionally, knowingly or recklessly causes bodily injury

to another; (2) [i]ntentionally or knowingly causes another to

reasonably fear imminent bodily injury; or (3) [i]ntentionally or

knowingly causes physical contact with another and a reasonable

person     would     regard       the    contact    as   extremely       offensive   or

provocative.").

        I also note that the trial court took notice of the common

law definition of assault as presented by the State.                        This Court

has     recognized    that    in    determining       whether      two    statutes   are

substantially similar, the underlying purposes of the statutes

must be examined to “avoid absurd or bizarre consequences.”                       State

v. Key, 180 N.C. App. 286, 294, 636 S.E.2d 816, 823 (2006) (holding

that a Maryland theft statute was substantially similar to a North

Carolina larceny statute because both statutes followed common-

law definitions of theft, taking, and asportation).

        Here, the underlying purpose of the statutes is clear: to

protect females from assaults committed by males.                         “In adopting

G.S. 14-33, the General Assembly of North Carolina clearly sought
                                     -9-

to prevent bodily injury to the citizens of the State arising from

assaults, batteries and affrays.”          Gurganus, 39 N.C. App. at 400,

250 S.E.2d at 672.

             In matters of statutory construction, the role
             of this court is to ascertain and give effect
             to the intent of the legislature.         Unless
             ambiguity   requires   resort     elsewhere   to
             ascertain    legislative     intent,    judicial
             interpretation of a statute is restricted to
             the natural and ordinary meaning of the
             language used. "Legislative enactments must
             be interpreted in their natural and ordinary
             sense without a forced construction to either
             limit or expand their meaning." "Courts must
             construe   statutes   as    a   whole   and   in
             conjunction with their surrounding parts and
             their interpretation should be consistent with
             their legislative purposes." The meaning of
             a statute is to be determined not from
             specific words in a single sentence or section
             but from the act in its entirety in light of
             the general purpose of the legislation; any
             interpretation should express the intent and
             purpose of the legislation.       "The cardinal
             rule   of   statutory    construction    is   to
             effectuate legislative intent, with all rules
             of construction being [aids] to that end."

State   v.   Cross,   93   S.W.3d   891,   894   (Tenn.   Crim.   App.   2002)

(citations omitted).       A review of the elements of the Tennessee

domestic assault statute supports a similar purpose as the North

Carolina assault on a female statute — to protect females from

assault by males.      Accordingly, upon de novo review of the trial

court’s ruling after comparison of the elements of the relevant

North Carolina and Tennessee assault statutes, I submit that the
                               -10-

State met its burden of proof to show by a preponderance of the

evidence   that   these   statutes    are   substantially   similar.

Therefore, I respectfully dissent.
