               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA16-1020

                               Filed: 15 August 2017

Forsyth County, No. 14 CRS 60237

STATE OF NORTH CAROLINA

              v.

ROY EUGENE BRYANT


      Appeal by defendant from judgments entered 29 February 2016 by Judge R.

Stuart Albright in Forsyth County Superior Court. Heard in the Court of Appeals 22

March 2017.


      Attorney General Joshua H. Stein, by Assistant Attorney General Robert D.
      Croom, for the State.

      Hollers & Atkinson, by Russell J. Hollers, III, for defendant-appellant.


      CALABRIA, Judge.


      Roy Eugene Bryant (“defendant”) appeals from judgments entered upon jury

verdicts finding him guilty of second-degree sexual offense and second-degree rape.

On appeal, defendant only challenges the sentence imposed by the trial court.

Defendant contends that the court improperly calculated his prior record level, due

to its erroneous conclusion that two of defendant’s prior South Carolina convictions

were substantially similar to certain North Carolina offenses. After careful review,

we conclude that defendant received a fair trial, free from prejudicial error.

                                   I. Background
                                   STATE V. BRYANT

                                   Opinion of the Court



      The State presented evidence that in the evening of 17 October 2014,

defendant was a stranger to the victim and her boyfriend when he joined them as

they walked to their apartment in downtown Winston-Salem, North Carolina. Once

the victim was alone, defendant engaged in sexual conduct with her by force and

against her will.   On 18 October 2014, officers with the Winston-Salem Police

Department arrested defendant for second-degree sexual offense and second-degree

rape. A Forsyth County grand jury indicted defendant for these offenses on 1 June

2015. Trial commenced in Forsyth County Criminal Superior Court on 22 February

2016. On 26 February 2016, the jury returned verdicts finding defendant guilty. The

jury also found, as an aggravating factor, that defendant committed the offenses

while on pretrial release on another charge.

      Following the verdicts, the trial court excused the jury to begin sentencing

proceedings.   The State submitted a copy of defendant’s Division of Criminal

Information records regarding his prior convictions in North Carolina, South

Carolina, and Florida. The State drafted a proposed prior record level worksheet,

and defendant stipulated to its accuracy, “except for the class of any out-of-state

conviction higher than a class I felony[.]”

      In determining defendant’s prior record level, the State argued that two of

defendant’s prior South Carolina convictions were substantially similar to certain

North Carolina offenses. First, the State asserted that defendant’s 1991 conviction



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                                   Opinion of the Court



for criminal sexual conduct in the third degree was substantially similar to the North

Carolina Class C felonies of second-degree forcible rape and second-degree forcible

sex offense. Next, the State contended that defendant’s 1996 conviction for criminal

sexual conduct in the first degree was substantially similar to the North Carolina

Class B1 felonies of statutory rape of a child by an adult and statutory sexual offense

with a child by an adult. Although defendant disagreed with the State regarding

substantial similarity, he stipulated that the 1991 and 1996 South Carolina

convictions were both felony offenses.

      After reviewing the relevant statutes from both jurisdictions, the trial court

found that the State had proven by a preponderance of the evidence that the

respective offenses were substantially similar. The court assigned defendant six

points for his 1991 conviction and nine points for his 1996 conviction. See N.C. Gen.

Stat. § 15A-1340.14(b)(1a)-(2) (2015) (instructing the trial court to assign a felony

offender “6 points” “[f]or each prior felony Class B2, C, or D conviction” and “9 points”

“[f]or each prior felony Class B1 conviction” that the court finds to have been proved).

      Based on defendant’s prior convictions, the trial court determined that he was

a prior record level VI offender with 27 points. See N.C. Gen. Stat. § 15A-1340.14(c)(6)

(providing that offenders with “[a]t least 18 points” are prior record level VI for felony

sentencing purposes). Based on defendant’s prior record level and the jury’s finding

of an aggravated factor, the trial court sentenced defendant to two consecutive terms



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                                   Opinion of the Court



of 182 to 279 months in the custody of the North Carolina Division of Adult

Correction. Defendant appeals.

                                     II. Analysis

      On appeal, defendant contends that the trial court improperly sentenced him

at prior record level VI, due to the court’s erroneous conclusion that two of defendant’s

prior South Carolina convictions were substantially similar to North Carolina

offenses. We disagree.

      “The trial court’s determination of a defendant’s prior record level is a

conclusion of law, which this Court reviews de novo on appeal.” State v. Threadgill,

227 N.C. App. 175, 178, 741 S.E.2d 677, 679-80, disc. review denied, 367 N.C. 223,

747 S.E.2d 538 (2013). A defendant need not object to the calculation of his prior

record level at sentencing in order to preserve the issue for appellate review. Id. at

178, 741 S.E.2d at 679; N.C. Gen. Stat. § 15A-1446(d)(5), (18).

      A felony offender’s prior record level “is determined by calculating the sum of

the points assigned to each of the offender’s prior convictions” that the trial court

finds to have been proven at the sentencing hearing.          N.C. Gen. Stat. § 15A-

1340.14(a). “The State bears the burden of proving, by a preponderance of the

evidence, that a prior conviction exists and that the offender before the court is the

same person as the offender named in the prior conviction.” N.C. Gen. Stat. § 15A-




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                                   Opinion of the Court



1340.14(f). The State may prove the defendant’s prior convictions by any of the

following methods:

             (1)   Stipulation of the parties.
             (2)   An original or copy of the court record of the prior
             conviction.
             (3)   A copy of records maintained by the Department of
             Public Safety, the Division of Motor Vehicles, or of the
             Administrative Office of the Courts.
             (4)   Any other method found by the court to be reliable.

Id.

      Generally, felony convictions from jurisdictions outside of North Carolina are

classified as Class I felonies and assigned two prior record points. N.C. Gen. Stat. §

15A-1340.14(e); N.C. Gen. Stat. § 15A-1340.14(b)(4). However,

             [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.

N.C. Gen. Stat. § 15A-1340.14(e). “[A] defendant may stipulate both that an out-of-

state conviction exists and that the conviction is classified as a felony offense in the

relevant jurisdiction.” Threadgill, 227 N.C. App. at 179, 741 S.E.2d at 680.

      Substantial similarity “is a question of law involving comparison of the

elements of the out-of-state offense to those of the North Carolina offense.” State v.

Sanders, 367 N.C. 716, 720, 766 S.E.2d 331, 334 (2014). “[F]or a party to meet its

burden of establishing substantial similarity of an out-of-state offense to a North


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                                        Opinion of the Court



Carolina offense by the preponderance of the evidence, the party seeking the

determination of substantial similarity must provide evidence of the applicable law.”

Id. at 719, 766 S.E.2d at 333. “[A] printed copy of a statute of another state is

admissible as evidence of the statut[ory] law of such state.” State v. Morgan, 164 N.C.

App. 298, 309, 595 S.E.2d 804, 812 (2004) (remanding for resentencing where “[t]he

State presented no evidence . . . that the 2002 New Jersey homicide statute was

unchanged from the 1987 version under which [the d]efendant was convicted”).

       A. Criminal Sexual Conduct in the Third Degree

       Defendant first contends that the trial court erred in determining that South

Carolina’s offense of criminal sexual conduct in the third degree is substantially

similar to North Carolina’s offenses of second-degree forcible rape and second-degree

forcible sexual offense. We disagree.

       At sentencing, defendant stipulated that on 19 November 1991, he was

convicted in South Carolina of criminal sexual conduct in the third degree. The State

presented the trial court with a copy of the 2014 version of the South Carolina

statute,1 which provides:

               (1)    A person is guilty of criminal sexual conduct in the
               third degree if the actor engages in sexual battery with the
               victim and if any one or more of the following

       1  As the State correctly observed at sentencing, in order to prove substantial similarity, the
State was required to provide evidence of the South Carolina law that was in effect when defendant
was convicted. See Morgan, 164 N.C. App. at 309, 595 S.E.2d at 812. However, the 2014 version that
the State provided was sufficient due to its inclusion of statutory history demonstrating that the
section has not been amended since its enactment in 1977.

                                                -6-
                                        STATE V. BRYANT

                                        Opinion of the Court



               circumstances are proven:

                       (a)   The actor uses force or coercion to accomplish
                       the sexual battery in the absence of aggravating
                       circumstances.

                       (b)   The actor knows or has reason to know that
                       the victim is mentally defective, mentally
                       incapacitated, or physically helpless and aggravated
                       force or aggravated coercion was not used to
                       accomplish sexual battery.

               (2)    Criminal sexual conduct in the third degree is a
               felony punishable by imprisonment for not more than ten
               years, according to the discretion of the court.

S.C. Code Ann. § 16-3-654. The term “sexual battery” means “sexual intercourse,

cunnilingus, fellatio, anal intercourse, or any intrusion, however slight, of any part of

a person’s body or of any object into the genital or anal openings of another person’s

body, except when such intrusion is accomplished for medically recognized treatment

or diagnostic purposes.” S.C. Code Ann. § 16-3-651(h) (2015).2

       The State contended that South Carolina’s offense of criminal sexual conduct

in the third degree is substantially similar to North Carolina’s offenses of (1) second-

degree forcible rape and (2) second-degree forcible sexual offense. North Carolina’s

second-degree forcible rape statute provides, in pertinent part:

               (a)   A person is guilty of second-degree forcible rape if
               the person engages in vaginal intercourse with another
               person:

       2 The 2015 version of the definitional statute that the State provided to the trial court also
included statutory history establishing that the section has not been amended since its passage in
1977.

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                                  STATE V. BRYANT

                                  Opinion of the Court




                   (1)   By force and against the will of the other
                   person; or

                   (2)   Who is mentally disabled, mentally
                   incapacitated, or physically helpless, and the person
                   performing the act knows or should reasonably know
                   the other person is mentally disabled, mentally
                   incapacitated, or physically helpless.

             (b)    Any person who commits the offense defined in this
             section is guilty of a Class C felony.

N.C. Gen. Stat. § 14-27.22(a)-(b). Second-degree forcible sexual offense has the same

elements as second-degree forcible rape, except that “a sexual act” replaces “vaginal

intercourse” as the underlying sexual conduct:

             (a)    A person is guilty of second degree forcible sexual
             offense if the person engages in a sexual act with another
             person:

                   (1)   By force and against the will of the other
                   person; or

                   (2)    Who is mentally disabled, mentally
                   incapacitated, or physically helpless, and the person
                   performing the act knows or should reasonably know
                   that the other person is mentally disabled, mentally
                   incapacitated, or physically helpless.

             (b)    Any person who commits the offense defined in this
             section is guilty of a Class C felony.

N.C. Gen. Stat. § 14-27.27. “Sexual act” means “cunnilingus, fellatio, analingus, or

anal intercourse, but does not include vaginal intercourse. Sexual act also means the

penetration, however slight, by any object into the genital or anal opening of another


                                         -8-
                                    STATE V. BRYANT

                                    Opinion of the Court



person’s body: provided, that it shall be an affirmative defense that the penetration

was for accepted medical purposes.” N.C. Gen. Stat. § 14-27.20(4).

       On appeal, defendant contends that “[a] violation of S.C. Code Ann. § 16-3-654

could be a violation of either N.C.G.S. § 14-27.22 or -27.27, but not both, because

North Carolina’s rape statute only applies to vaginal intercourse and its sexual

offense statute specifically excludes vaginal intercourse.” However, this seems to be

a distinction without a difference. Second-degree forcible rape and second-degree

forcible sexual offense have identical elements except for the underlying sexual

conduct, and both offenses are Class C felonies in North Carolina. Furthermore,

South Carolina’s definition of “sexual battery” includes vaginal intercourse as well as

all conduct constituting a “sexual act” in North Carolina. Accordingly, any violation

of S.C. Code Ann. § 16-3-654 would also be a violation of either N.C. Gen. Stat. § 14-

27.22 or § 14-27.27, and vice versa. Therefore, the trial court did not err in

determining that these offenses are substantially similar. See State v. Sapp, 190 N.C.

App. 698, 713, 661 S.E.2d 304, 312 (2008), appeal dismissed and disc. review denied,

363 N.C. 661, 685 S.E.2d 799 (2009) (“[T]he 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.’ ”).

       B. Criminal Sexual Conduct with Minors in the First Degree




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                                   STATE V. BRYANT

                                   Opinion of the Court



      We do not reach the same conclusion regarding defendant’s 1996 South

Carolina conviction for criminal sexual conduct with minors in the first degree, which

the trial court determined is substantially similar to North Carolina’s offenses of

statutory rape of a child by an adult, N.C. Gen. Stat. § 14-27.23, and statutory sexual

offense with a child by an adult, N.C. Gen. Stat. § 14-27.28. We disagree.

      A person commits the South Carolina offense of criminal sexual conduct with

minors in the first degree “if the actor engages in sexual battery with the victim who

is less than eleven years of age.” S.C. Code Ann. § 16-3-655(1) (1996). In North

Carolina, “[a] person is guilty of statutory rape of a child by an adult if the person is

at least 18 years of age and engages in vaginal intercourse with a victim who is a

child under the age of 13 years.” N.C. Gen. Stat. § 14-27.23(a). “A person is guilty of

statutory sexual offense with a child by an adult if the person is at least 18 years of

age and engages in a sexual act with a victim who is a child under the age of 13 years.”

N.C. Gen. Stat. § 14-27.28(a). Both offenses are Class B1 felonies in North Carolina.

N.C. Gen. Stat. §§ 14-27.23(b), -27.28(b).

      Contrary to our previous determination, these offenses are not substantially

similar due to their disparate age requirements. Although both of the North Carolina

statutes require that the offender be “at least 18 years of age[,]” N.C. Gen. Stat. §§

14-27.23(a), -27.28(a), a person of any age may violate South Carolina’s statute. See

S.C. Code Ann. § 16-3-651(a) (defining “actor” as “a person accused of criminal sexual



                                          - 10 -
                                   STATE V. BRYANT

                                   Opinion of the Court



conduct”). Moreover, North Carolina’s statutes apply to victims “under the age of 13

years[,]” N.C. Gen. Stat. §§ 14-27.23(a), -27.28(a), while South Carolina’s statute

protects victims who are “less than eleven years of age.” S.C. Code Ann. § 16-3-655(1).

The North Carolina and South Carolina statutes thus apply to different offenders and

different victims. Therefore, the offenses are not substantially similar. See Sanders,

367 N.C. at 719-20, 766 S.E.2d at 333-34 (holding that North Carolina’s offense of

assault on a female is not substantially similar to Tennessee’s offense of domestic

assault because, inter alia, the North Carolina offense “requires that (1) the assailant

be male, (2) the assailant be at least eighteen years old, and (3) the victim of the

assault be female[,]” while the Tennessee offense “does not require the victim to be

female or the assailant to be male and of a certain age”). Accordingly, the trial court

erred by assigning defendant nine points based on his 1996 South Carolina conviction

for criminal sexual conduct with minors in the first degree.

      Nevertheless, we hold that the trial court’s error was harmless. Defendant

received 27 points for his prior convictions, which corresponds with a prior record

level VI. Although the trial court erred by assigning defendant nine points for his

1996 South Carolina conviction, defendant stipulated that the offense was a felony.

Assuming, arguendo, that the trial court had classified the offense as a Class I felony

and assigned defendant two points on that basis, defendant would still have 20 total

points. Since offenders with “[a]t least 18 points” are sentenced at prior record level



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                                   STATE V. BRYANT

                                   Opinion of the Court



VI pursuant to N.C. Gen. Stat. § 15A-1340.14(c)(6), the trial court’s error did not

affect defendant’s prior record level calculation and was, therefore, harmless. See

State v. Adams, 156 N.C. App. 318, 324, 576 S.E.2d 377, 382, disc. review denied, 357

N.C. 166, 580 S.E.2d 698 (2003).

      Accordingly, we conclude that defendant received a fair trial, free from

prejudicial error.

      NO PREJUDICIAL ERROR.

      Judge HUNTER, JR. concurs.

      Judge BERGER concurs in part and dissents in part in a separate opinion.




                                          - 12 -
 No. COA16-1020 – State v. Bryant


      BERGER, Judge, concurring in part, dissenting in part in separate opinion.


      I concur with the majority opinion concerning the issue of substantial

similarity of Defendant’s South Carolina conviction for third degree sexual conduct

with N.C. Gen. Stat. § 14-27.22 or N.C. Gen. Stat. § 14-27.27. However, because

Defendant’s South Carolina conviction for first degree sexual conduct with minors is

substantially similar to N.C. Gen. Stat. § 14-27.23 and N.C. Gen. Stat. § 14-27.28, I

would affirm the trial court’s conclusion as to this issue, and respectfully dissent.

      An out-of-state felony conviction is generally classified as a Class I offense for

structured sentencing purposes. N.C. Gen. Stat. § 15A-1340.14(e) (2015). However,

             [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.

Section 15A-1340.14(e). This Court has stated that “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) (emphasis added). There is no requirement that the

statutes have to be identical.

      The majority holds that “these offenses are not substantially similar due to

their disparate age requirements[,]” citing State v. Sanders, 367 N.C. 716, 766 S.E.2d
                                         STATE V. BRYANT

                         BERGER, J., concurring in part, dissenting in part



331 (2014). However, the majority’s focus on age would demand the offenses be

identical for there to be substantial similarity.

        The trial court correctly made the following findings and conclusions regarding

Defendant’s conviction for first degree sexual conduct with minors:

                        THE COURT: Okay. And I note that the defendant
                is contesting that it should be a B1. The defendant, like the
                [conviction for third degree sexual conduct], asserts it
                should be a class I felony. However, for the reasons stated
                by the State, the [c]ourt finds that the State has proven by
                a preponderance of the evidence, in reviewing State's
                Exhibit 58,3 that that particular South Carolina conviction
                is substantially similar to 14-27.23, statutory rape of a
                child and 14-27.28, statutory sex offense with a child. For
                all the reasons mentioned by the State --
                        And I should note that State's Exhibit 57, for the
                South Carolina offense the punishment for that particular
                class C felony was not more than ten years. While the
                punishment is not, per se, the determinative factor, it is
                one factor to consider and that is consistent, depending on
                the person's prior record level, of what he could receive for
                a class C felony in North Carolina for the corresponding
                North Carolina crimes.
                        Similarly[,] State's Exhibit 58 shows that someone
                convicted for the first-degree criminal sexual conduct with
                a minor less than 11 years, the punishment is not more
                than 30 years. That is consistent, although not identical, it
                is consistent with someone, depending on the prior record
                level, that is convicted of a B1 felony in North Carolina for
                the corresponding North Carolina crimes.
                        Court also finds although the age of the victim in the
                South Carolina case differs somewhat from that in North
                Carolina, the goal of both statutes is to punish either

        3 State’s Exhibits 56, 57, and 58 were each related to Defendant’s criminal history and
convictions used on his prior record level worksheet. Exhibit 58 specifically included each of the North
Carolina and South Carolina statutes utilized to determine whether Defendant’s convictions were
substantially similar.

                                                   2
                                    STATE V. BRYANT

                     BERGER, J., concurring in part, dissenting in part



             sexual offenses -- well, either vaginal intercourse or sexual
             offenses with minors, and that's exactly what the North
             Carolina statute is designed to do as well. Again, the [c]ourt
             cites [State v. Sapp] in finding that the State has proven by
             a preponderance of the evidence that that particular
             conviction out of South Carolina is substantially similar to
             the two statu[t]es that I've cited for North Carolina. The
             [c]ourt will assign the classification of that out-of-state
             conviction to be a B1 felony.

                   ....

                    And again, for . . . each out-of-state conviction on the
             prior record level worksheet, the [c]ourt finds by a
             preponderance of the evidence that the offense is
             substantially similar to the North Carolina offenses that
             I've already itemized for the record, and that the North
             Carolina classification assigned to those particular out-of-
             state convictions is correct. The [c]ourt also finds that the
             State and defendant have stipulated in open court to the
             prior conviction points and record level except as to the
             class of any out-of-state conviction higher than a class I
             felony. The [c]ourt has already made those findings. The
             [court] also now, based on State's Exhibit Numbers 56, 57
             and 58, incorporates all those exhibits in support of the
             [c]ourt's findings.

      Moreover, the statutes at issue are substantially similar because the elements

of the statutes target the same assailants, offense, and victims – assailants of any

gender who engage in vaginal intercourse or sexual offenses with children. In fact,

all child-victims who meet the age requirement for the South Carolina offense of first

degree sexual conduct with minors, i.e., children eleven years old and younger, would

meet the age requirement and could be classified as victims under N.C. Gen Stat. §

14-27.23 and N.C. Gen. Stat. § 14-27.28.


                                             3
                                     STATE V. BRYANT

                      BERGER, J., concurring in part, dissenting in part



      Defendant’s South Carolina conviction for first degree sexual conduct with

minors is substantially similar to N.C. Gen. Stat. § 14-27.23 and N.C. Gen. Stat. § 14-

27.28, and I would affirm the trial court’s classification of that offense as a B1 felony.




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