                                     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.
