              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA17-748

                               Filed: 20 February 2018

Wake County, Nos. 15 CRS 207469, 15 CRS 3195

STATE OF NORTH CAROLINA,

             v.

DOMINIQUE RASHEED WELDON, Defendant.


      Appeal by defendant from judgment entered 24 March 2016 by Judge A.

Graham Shirley in Wake County Superior Court. Heard in the Court of Appeals 13

December 2017.


      Attorney General Joshua H. Stein, by Assistant Attorney General Scott A.
      Conklin, for the State.

      Richard Croutharmel for defendant-appellant.


      ZACHARY, Judge.

      Dominique Rasheed Weldon (“defendant”) appeals from judgment entered on

his conviction for possession of a firearm by a felon. Defendant argues that the trial

court erred when it (1) admitted lay opinion testimony identifying defendant in a

surveillance video, (2) permitted testimony in violation of Rules 404(b) and 403 of the

North Carolina Rules of Evidence, and (3) determined that defendant’s prior federal

conviction of unlawful possession of a firearm was substantially similar to his current

North Carolina conviction. For the reasons explained herein, we find no error.

                                   I. Background
                                    STATE V. WELDON

                                    Opinion of the Court



          A Wake County grand jury indicted defendant for possession of a firearm by a

felon on 4 May 2015, for habitual felon status on 21 July 2015, and for assault with a

deadly weapon with intent to kill on 7 March 2016. The case was tried before a jury

beginning on 21 March 2016. The relevant facts are as follows.

          On 23 March 2015, defendant was shot near Martin Street in Raleigh. The

Raleigh Police Department responded to the shooting and found a 9-millimeter shell

casing at the scene. Defendant was transported to the hospital where Detective Bill

Nordstrom attempted to interview him. Detective Nordstrom testified that defendant

“wasn’t too cooperative” and that “He gave a very brief statement and told us that he

didn’t really need the police assistance.” Defendant was released from the hospital

that same day.

          Ten days later, on 2 April 2015, the Raleigh Police Department responded to

another shooting outside some storefronts on Martin Street. Officer K. A. Thompson

found six .40 caliber shell casings at the scene of the 2 April 2015 shooting. Officer

Thompson also found four 9-millimeter shell casings in the parking lot across the

street.

          Officer Thompson contacted one of the storefront property owners in order to

obtain the owner’s video surveillance footage of the shooting. The surveillance video

shows an individual shooting a .40 caliber handgun at another individual across the

street, where the four 9-millimeter shell casings were found. State Crime Lab



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Technician Dana Quirindongo testified that the 9-millimeter shell casings from the

23 March 2015 shooting were fired from the same 9-millimeter firearm involved in

the 2 April 2015 shooting.

      When Officer Thompson viewed the surveillance video of the 2 April 2015

shooting, he identified defendant as the shooter. Officer Thompson testified that he

had gotten to know defendant while patrolling his “beat” over the years. Officer

Thompson first met defendant in 2008, and continued to have occasional encounters

with him. In particular, Officer Thompson testified that he saw defendant just a few

days after he was shot on 23 March 2015, about seven or eight days before the 2 April

2015 shooting, and that defendant was limping at the time. When asked how he was

able to identify defendant in the 2 April 2015 surveillance video, Officer Thompson

responded that he “saw in the video, especially a side profile of, of [defendant’s] face

and hair and clothing that he’s wearing. I immediately recognized him by who he is,

and then also he was limping.” Officer Thompson testified that he was 100 percent

certain that the individual in the surveillance footage was defendant.

      Officer R. S. Williams also viewed the video surveillance footage. Officer

Williams testified that, while he had never had any direct contact with defendant, he

knew who defendant was from his “reputation on the street[.]” Officer Williams

testified that he was 100 percent certain that defendant was the individual firing the

.40-caliber handgun in the surveillance video.



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      Quentin Singletary worked at the self-service laundry in the area of the

shooting. Mr. Singletary testified that he knew defendant because defendant would

come into the laundry and that they would talk nearly every day. Mr. Singletary saw

defendant when he came into the laundry on the morning of 2 April 2015. When Mr.

Singletary heard the shots being fired later that day, he locked himself inside the

laundry until police officers knocked on the door. Mr. Singletary let the officers in and

the officers showed him the surveillance footage. Mr. Singletary identified defendant

as the person shooting in the video and testified that defendant was wearing the same

clothing in the video as Mr. Singletary had seen him wearing earlier that morning.

Mr. Singletary also testified that defendant was limping when he saw him the

morning of the 2 April 2015 shooting, and that he observed the same limp in the

surveillance footage.

      On 24 March 2016, the jury found defendant guilty of possession of a firearm

by a convicted felon and assault with a deadly weapon with intent to kill. However,

at defendant’s sentencing, after having already denied defendant’s motion to dismiss

the charge of assault with a deadly weapon with intent to kill,          the trial court

reopened the issue and dismissed that conviction on the grounds that the indictment

was fatally defective for failing to name a victim. Defendant’s conviction of possession

of a firearm by a felon remained. Defendant stipulated to being a habitual felon.




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      Defendant was designated as a prior record Level II for sentencing. Defendant

had a prior federal conviction in 2010 for unlawful possession of a firearm. On the

prior record level worksheet, defendant was given one point because all of the

elements in the present charge of possession of a firearm by a convicted felon were

present in a prior conviction. This point elevated defendant’s sentencing level from a

Level I to a Level II for purposes of sentencing as a habitual felon. Defendant was

sentenced to 83 to 112 months’ imprisonment. Defendant gave oral notice of appeal

in open court.

      On appeal, defendant argues (1) that the trial court abused its discretion in

allowing Officer Williams to testify as to defendant’s identity in the surveillance

video, (2) that the trial court committed plain error when it allowed Officer Williams

to testify as to the reputation and prior bad acts of defendant, and (3) that the trial

court committed reversible error when it determined that defendant’s current offense

of possession of a firearm by a felon was substantially similar to his prior federal

conviction. After careful review, we find no error.

                 II. Officer Williams’s Identification Testimony

      Defendant first argues that the trial court abused its discretion by allowing

Officer Williams to testify as to defendant’s identity in the surveillance video.

Defendant maintains that, because Officer Williams’s familiarity with defendant was

based solely on what others had told him, he was in no better position than the jury



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                                    Opinion of the Court



to identify defendant in the surveillance footage. We do not find this argument

persuasive.

A. Standard of Review

       A trial court’s ruling on the admissibility of lay opinion testimony is reviewed

for abuse of discretion. State v. Belk, 201 N.C. App. 412, 417, 689 S.E.2d 439, 442

(2009) (citation omitted). A trial court abuses its discretion if the “ruling is manifestly

unsupported by reason or is so arbitrary that it could not have been the result of a

reasoned decision.” State v. Williams, 363 N.C. 689, 701, 686 S.E.2d 493, 501 (2009),

cert. denied, 562 U.S. 864, 178 L. Ed. 2d 90 (2010) (citation and quotation marks

omitted). Where the testimony at issue is the identification of a defendant as the

individual depicted in surveillance footage, “we must uphold the admission of [the]

lay opinion testimony if there was a rational basis for concluding that [the witness]

was more likely than the jury to correctly identify [the] [d]efendant as the individual

in the surveillance footage.” Belk, 201 N.C. App. at 417, 689 S.E.2d at 442 (citation

omitted).

B. Lay Opinion Identification Testimony

       Admissible lay opinion testimony “is limited to those opinions or inferences

which are (a) rationally based on the perception of the witness and (b) helpful to . . .

the determination of a fact in issue.” N.C. Gen. Stat. § 8C-1, Rule 701 (2016).

“Ordinarily, opinion evidence of a non-expert witness is inadmissible because it tends



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                                   Opinion of the Court



to invade the province of the jury.” State v. Fulton, 299 N.C. 491, 494, 263 S.E.2d

608, 610 (1980). “The essential question in determining the admissibility of opinion

evidence is whether the witness, through study and experience, has acquired such

skill that he is better qualified than the jury to form an opinion as to the subject

matter to which his testimony applies.” State v. Phifer, 290 N.C. 203, 213, 225 S.E.2d

786, 793 (1976), cert. denied, 429 U.S. 1123, 51 L. Ed. 2d 573 (1977), (citing State v.

Mitchell, 283 N.C. 462, 196 S.E.2d 736 (1973)) (other citations omitted).

      These same principles apply in the context of lay opinion testimony regarding

the identification of a defendant as the person depicted in a surveillance video. See

e.g., Belk, 201 N.C. App. at 414-15, 689 S.E.2d at 441. Opinion testimony identifying

a criminal defendant in a videotape is admissible “ ‘where such testimony is based on

the perceptions and knowledge of the witness, the testimony would be helpful to the

jury in the jury’s fact-finding function rather than invasive of that function, and the

helpfulness outweighs the possible prejudice to the defendant from admission of the

testimony.’ ” Id. at 415, 689 S.E.2d at 441 (quoting State v. Buie, 194 N.C. App. 725,

730, 671 S.E.2d 351, 354-55, disc. review denied, 363 N.C. 375, 679 S.E.2d 135-36

(2009) (internal quotation marks and citation omitted)). However, the testimony is

inadmissible if the jury is “as well qualified as the witness to draw the inference[] and

conclusion[]” that the person shown in the surveillance footage is the defendant.

”Fulton, 299 N.C. at 494, 263 S.E.2d at 610 (citation omitted). In determining the



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                                   Opinion of the Court



admissibility of lay opinion identification testimony, we have held that the following

factors are relevant:

              “(1) the witness’s general level of familiarity with the
              defendant’s appearance; (2) the witness’s familiarity with
              the defendant’s appearance at the time the surveillance
              [video] was taken or when the defendant was dressed in a
              manner similar to the individual depicted in the [video]; (3)
              whether the defendant had disguised his appearance at the
              time of the offense; and (4) whether the defendant had
              altered his appearance prior to trial.”

Belk, 201 N.C. App. at 415, 689 S.E.2d at 441 (quoting United States v. Dixon, 413

F.3d 540, 545 (6th Cir. 2005) (internal citation omitted)) (other citations omitted). We

have also noted that “ ‘[l]ay opinion identification testimony is more likely to be

admissible where the surveillance [video] . . . shows only a partial view of the subject.’

” Id. at 416, 689 S.E.2d at 442 (quoting Dixon, 413 F.3d at 545 (internal citations

omitted)) (alteration omitted).

C. Analysis

      Defendant argues that the trial court abused its discretion in allowing Officer

Williams to identify defendant as the shooter in the surveillance footage because

“Officer Williams had never had any actual encounters with [defendant]; he had only

seen him in the community and heard from others who he was.” Accordingly,

defendant asserts that Officer Williams “was in no better position than the jury to”

identify defendant in the video.




                                          -8-
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                                   Opinion of the Court



      At trial, Officer Williams testified that when he viewed the 2 April 2015

surveillance footage, he recognized the shooter in the video as defendant with “a

hundred percent” certainty. While Officer Williams never “had a one-on-one

discussion” with defendant, he testified that he “had seen him in the area and . . .

knew who he was.” Officer Williams testified that he was familiar with defendant’s

identity because defendant had been pointed out to him on numerous occasions due

to defendant’s “reputation” in the area, and that he had observed defendant “very

frequently” in the area for “at least a good two months” before defendant was shot on

23 March 2015. The day after defendant was shot, Officer Williams saw defendant

coming out of a house that he was surveilling. Officer Williams stated that he was

able to identify that individual as defendant because he “recognized his face,” and

because he had a brace on his leg and “was limping pretty bad.” We conclude that

these encounters would have sufficiently allowed Officer Williams to acquire the

requisite familiarity with defendant’s appearance so as to qualify him to testify on

the subject matter of defendant’s identity. The trial court did not abuse its discretion

in so concluding.

      Moreover, defendant had altered his appearance significantly between 2 April

2015 and the date of trial. At trial, the evidence established that the length and style

of defendant’s hair was distinctive during the period that Officer Williams became

familiar with defendant, matching that of the individual shown in the 2 April 2015



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                                   Opinion of the Court



surveillance footage. However, defendant had a shaved head at trial. Thus, by the

time of trial, the jury was unable to perceive the distinguishing nature of defendant’s

hair at the time of the shooting. Cf. Belk, 201 N.C. App. at 417, 689 S.E.2d at 442

(lay witness identification inadmissible where there was “no evidence that [the]

[d]efendant altered his appearance between the time of the incident and the trial”).

Accordingly, in that defendant had changed his appearance since the 2 April 2015

surveillance video, not only was Officer Williams qualified to identity defendant in

the video, but he was “better qualified than the jury” to do so. Phifer, 290 N.C. at 213,

225 S.E.2d at 793 (emphasis added).

      Because Officer Williams was familiar with defendant’s appearance, and

because defendant had altered that appearance by the time of his trial, we conclude

that the trial court did not abuse its discretion when it allowed Officer Williams to

testify that, in his opinion, defendant was the individual depicted shooting a weapon

in the 2 April 2015 surveillance video.

                              III. Character Evidence

      Defendant argues next that the trial court erred when it allowed Officer

Williams to testify (1) that he saw defendant coming out of a house that he was

investigating for illicit drugs, and (2) that defendant had a reputation for causing

problems in the area. This testimony, defendant maintains, served no purpose other

than to show defendant’s propensity for committing the crimes of which he was



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                                    Opinion of the Court



accused, and therefore was inadmissible character evidence under Rule 404(b) of the

North Carolina Rules of Evidence. Although defendant did not object to the admission

of this testimony at trial, he contends that the trial court’s admission of the testimony

amounted to plain error. We disagree.

A. Standard of Review

        “We review de novo the legal conclusion that . . . evidence is, or is not, within

the coverage of Rule 404(b).” State v. Beckelheimer, 366 N.C. 127, 130, 726 S.E.2d

156, 159 (2012). Whether evidence admissible under Rule 404(b) should nevertheless

be excluded under Rule 403 “is a matter within the sound discretion of the trial court

and [the court’s] ruling may be reversed for an abuse of discretion only upon a

showing that it was so arbitrary that it could not have been the result of a reasoned

decision.” State v. Everhardt, 96 N.C. App. 1, 18, 384 S.E.2d 562, 572 (1989) (citation

and quotation marks omitted). A defendant alleging plain error has the additional

burden of establishing “not only that there was error, but that absent the error, the

jury probably would have reached a different result.” State v. Jordan, 333 N.C. 431,

440, 426 S.E.2d 692, 697 (1993) (citing State v. Faison, 330 N.C. 347, 411 S.E.2d 143

(1991)).

B. Rule 404(b)

        Rule 404(b) of the North Carolina Rules of Evidence provides, in pertinent part,

that:



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                                  Opinion of the Court



             [e]vidence of other crimes, wrongs, or acts is not admissible
             to prove the character of a person in order to show that he
             acted in conformity therewith. It may, however, be
             admissible for other purposes, such as proof of motive,
             opportunity, intent, preparation, plan, knowledge,
             identity, or absence of mistake, entrapment, or accident.

N.C. Gen. Stat. § 8C-1, Rule 404(b) (2016). Stated differently, “Rule 404(b) is a rule

of inclusion of relevant evidence with but one exception, that is, the evidence must be

excluded if its only probative value is to show that [the] defendant has the propensity

or disposition to commit an offense of the nature of the crime charged.” State v.

Moore, 335 N.C. 567, 595, 440 S.E.2d 797, 813 (1994) (citation omitted) (emphasis

added).

      When asked whether he had seen defendant after the 23 March 2015 shooting,

Officer Williams testified:

             I saw him, I believe it was the day after he was shot. I was
             dealing with a complaint about [a] house on Blatent Court.
             It was a drug complaint that I got from the citizens. While
             investigating that I saw the defendant come out of the
             house and get into the vehicle.

      On cross-examination, in an attempt to discredit Officer Williams’s familiarity

with defendant, the following exchange took place:

             Q.    So you had never sort of had a face-to-face talk or
             encounter [with defendant], is that safe to say?

             A.    Not that I can recall. There might have been an
             instant here and there but I can’t recall.

             Q.     Can you recall how long you even knew of


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                                  Opinion of the Court



             [defendant] prior to this April 2nd, 2015 date?

             A.     The reputation on the street is how I first beg[a]n
             associating with the defendant. I had heard his name being
             talked about on [the] street with people on the street.
             [Defendant] had got a reputation for causing a lot of issues
             in the area so I knew who he was. People had already told
             me who he was. I’d never had any actual direct encounters
             with him, but knowing who he was I’d seen him in the area.

      Defendant maintains that this testimony had no purpose other than to show

that defendant had a propensity for committing the crimes with which he was

charged, and was not relevant to prove defendant’s identity, motive, opportunity,

intent, preparation, plan, or knowledge. However, the Rule 404(b) list “of other

purposes is nonexclusive, and thus evidence not falling within these categories may

be admissible.” Everhardt, 96 N.C. App. at 17, 384 S.E.2d at 572 (citing State v.

Morgan, 315 N.C. 626, 340 S.E.2d 84 (1986)). “Rule 404(b) permits admission of

extrinsic conduct evidence so long as the evidence is relevant for some purpose other

than to prove the defendant has the propensity to commit the act for which he is being

tried.” Id. at 17-18, 384 S.E.2d at 572.

      The transcript in the instant case reflects that the challenged portions of

Officer Williams’s testimony were relevant in that they established Officer Williams’s

familiarity with defendant’s appearance. This provided the basis for Officer

Williams’s ability to identify the defendant as the individual depicted in the

surveillance footage. The fact that defendant had a notorious reputation in the



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                                    Opinion of the Court



community explained why he had been pointed out to Officer Williams on numerous

occasions, why Officer Williams would have paid particular attention to him, and why

he was memorable to Officer Williams. In addition, the fact that Officer Williams

observed defendant during an unrelated investigation showed that Officer Williams

had a particular incentive to observe defendant in detail. Accordingly, as Officer

Williams’s testimony explained the circumstances under which he had become

familiar with defendant over the course of two months, his testimony was relevant

for a purpose other than to establish defendant’s character. Thus, Officer Williams’s

testimony was not impermissible character evidence under Rule 404(b), and the trial

court did not err by failing to exclude it.

       We note, however, that while Officer Williams’s observation of defendant

during a surveillance assignment was relevant in order to demonstrate the basis of

his familiarity with defendant’s appearance, the same cannot be said for the fact that

the surveillance operation was in response to “a drug complaint.” The inclusion of this

detail did not add to the reliability of Officer Williams’s ability to identify defendant.

Nonetheless, in absence of defendant’s objection at trial to this testimony, we are

limited to a plain error review of the issue.

       A showing of plain error requires that the error be “ ‘a fundamental error,

something so basic, so prejudicial, so lacking in its elements that justice cannot have

been done,’ ” or one that “ ‘had a probable impact on the jury’s finding that the



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                                   Opinion of the Court



defendant was guilty.’ ” State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)

(quoting United States v. McCaskill, 676 F. 2d 995, 1002 (4th Cir. 1982) (internal

quotation marks omitted)). “ ‘The plain error rule is always to be applied cautiously

and only in the exceptional case[.]’ ” Id. (alterations omitted).

      In the present case, a review of the evidence reveals that the inclusion of this

phrase did not amount to plain error. Notwithstanding the character implications of

the admission of testimony that defendant was seen exiting a house that was being

investigated in response to “a drug complaint,” the State presented the testimony of

three witnesses familiar with defendant who identified him as the individual shooting

a weapon in the surveillance video. This testimony was strong enough to have

supported the jury’s verdict on its own. The jury was also shown defendant’s

distinctive hair style and told about his limp, which were both clearly visible in the

surveillance footage. Moreover, the jury was presented with the circumstantial

evidence of the 23 March 2015 shooting, in which defendant was shot with the same

firearm that was found across the street after the 2 April 2015 shooting. Thus, the

trial court’s failure to exclude from the jury’s consideration the fact that Officer

Williams’s surveillance was for “a drug complaint” did not have a probable impact on

the jury’s finding that defendant was guilty. Accordingly, defendant cannot establish

plain error.

C. Rule 403



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                                  Opinion of the Court



      As to the remaining relevant portions of Officer Williams’s testimony, while

not in violation of Rule 404(b), the testimony must nevertheless be excluded “if its

probative value is substantially outweighed by the danger of unfair prejudice[.]” N.C.

Gen. Stat. § 8C-1, Rule 403 (2016). Rule 403 is a balancing test that falls within the

sound discretion of the trial court. Everhardt, 96 N.C. App. at 18, 384 S.E.2d at 572.

      Here, the probative value of the testimony that Officer Williams observed

defendant closely during a surveillance assignment, and that he knew who defendant

was because of defendant’s reputation in the community, was significant. While this

testimony certainly would have had some prejudicial impact on the jury, we conclude

that, as the identity of the individual in the surveillance video was the crucial issue

in the case, the probative value of this information was significant, and was not

substantially outweighed by any undue prejudice. Accordingly, the trial court did not

abuse its discretion by permitting this testimony.

              IV. “Substantial Similarity” of Out-of-State Offense

      Lastly, defendant argues that the trial court erred when it found that his prior

federal conviction of unlawful possession of a firearm was substantially similar to his

current North Carolina conviction of possession of a firearm by a felon because the

State failed to present any evidence of substantial similarity between the two

offenses. However, because the trial court’s finding was, in fact, correct, we conclude

that any such error was harmless.



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A. Standard of Review

      “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 539 (2013) (citations omitted). However, whether a particular out-of-state

conviction is substantially similar to a particular North Carolina offense is subject to

harmless error review. State v. Riley, ___ N.C. App. ___, ___, 802 S.E.2d 494, 498

(2017); State v. Bohler, 198 N.C. App. 631, 637-38, 681 S.E.2d 801, 806-07 (2009),

disc. review denied, ___ N.C. ___, 691 S.E.2d 414 (2010).

B. Discussion

      Before sentencing a criminal defendant, the trial court must first determine

the defendant’s prior record level. N.C. Gen. Stat. § 15A-1340.13(b) (2016). “The

prior record level of a felony offender is determined by calculating the sum of the

points assigned to each of the offender’s prior convictions[.]” N.C. Gen. Stat. § 15A-

1340.14(a) (2016). For example, a prior offense that is classified as a Class G felony

is assigned four prior record level points. N.C. Gen. Stat. § 15A-1340.14(3) (2016). A

defendant with four prior record level points is considered a Prior Record Level II for

sentencing. N.C. Gen. Stat. § 15A-1340.14(c)(2) (2016). The defendant’s prior record

level determines the applicable sentencing range. N.C. Gen. Stat. § 15A-1340.13(b)

(2016). In addition to assigning points to each of the defendant’s prior convictions



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                                   Opinion of the Court



based on the classification of that conviction, the trial court must assign an extra

point “[i]f all the elements of the present offense are included in any prior offense for

which the offender was convicted, whether or not the prior offense or offenses were

used in determining prior record level[.]” N.C. Gen. Stat. § 15A-1340.14(b)(6) (2016).

      In the instant case, defendant has not presented, and we are unable to find,

any statutory or case law describing the standard for determining whether “all the

elements of the present offense are included in any prior offense” under Section

1340.14(b)(6) where the prior conviction is an out-of-state offense. However, under

Section 1340.14(e), “a conviction occurring in a jurisdiction other than North Carolina

is classified” according to the North Carolina offense to which it is “substantially

similar.”   N.C. Gen. Stat. § 15A-1340.14(e) (2016).      Section 1340.14(e) does not

explicitly provide that the “substantially similar” analysis is applicable to an out-of-

state offense for purposes of assigning one extra prior record level point under Section

1340.14(b)(6). Nonetheless, the determination of whether an out-of-state offense is

“substantially similar” to a North Carolina offense pursuant to Section 1340.14(e)

“requires a comparison of [the] respective elements” of the two offenses. Riley, ___

N.C. App. at ___, 802 S.E.2d at 498 (citing State v. Burgess, 216 N.C. App. 54, 57, 715

S.E.2d 867, 870 (2011)). Accordingly, we conclude that a finding that an out-of-state

offense is substantially similar to a North Carolina offense is sufficient for a finding




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that the elements of the present offense are included in any prior conviction under

Section 1340.14(b)(6) where the pertinent prior conviction is an out-of-state offense.

       The burden is on the State to establish by a preponderance of the evidence

that the elements of a defendant’s prior out-of-state offense are substantially similar

to those of his present North Carolina offense. See Burgess, 216 N.C. App. at 57-58,

715 S.E.2d at 870; N.C. Gen. Stat. § 15A-1340.14(e) (2016). The State “may establish

the elements of the out-of-state offense by producing evidence of the applicable

statute, including printed copies thereof.” Riley, ___ N.C. App. at ___, 802 S.E.2d at

498 (citing State v. Rich, 130 N.C. App. 113, 117, 502 S.E.2d 49, 52 (1998)).

      Here, defendant was assigned one additional record point because all of the

elements of his conviction of possession of a firearm by a felon were present in a prior

conviction. [R p 28] That point elevated defendant’s sentencing level from Level I to

Level II for purposes of sentencing as a habitual felon. While defendant stipulated

that he had a prior federal conviction in 2010 for unlawful possession of a firearm

pursuant to 18 U.S.C. § 922(g)(1), there is no indication that the State presented

copies of the relevant 2010 federal statute to the trial court in order to establish that

the 2010 federal offense was substantially similar to defendant’s current North

Carolina conviction of possession of a firearm by a felon under N.C. Gen. Stat. § 14-

415.1(a). There is also no evidence in the record that the trial court did in fact review

copies of the applicable 2010 federal statute to determine whether it was



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substantially similar to the North Carolina statute. However, to the extent that the

State fails to meet its burden of proof at sentencing, if “[t]he record contains sufficient

information for this Court to determine that the federal offense of being a felon in

possession of a firearm, 18 U.S.C. § 922(g)(1), is substantially similar to the North

Carolina offense of possession of a firearm by a felon, N.C. Gen. Stat. § 14-415.1,” the

resulting error is harmless, and the defendant is not entitled to a new sentencing

hearing. Riley, ___ N.C. App. at ___, 802 S.E.2d at 495.

       In State v. Riley, the defendant argued that the State failed to establish that

his prior federal conviction of unlawful possession of a firearm pursuant to 18 U.S.C.

§ 922(g)(1) was substantially similar to his present North Carolina conviction of

possession of a firearm by a felon. In Riley, “there [was] no evidence that the version

of § 922(g)(1) relied upon by the trial court was the same version under which [the]

defendant was convicted, or if it was the most recent version, that the statute

remained unchanged since [the] defendant’s conviction.” Riley, ___ N.C. App. at ___,

802 S.E.2d at 498. Nevertheless, upon examining the elements of the two offenses,

this Court was able “to determine that [the] defendant’s prior conviction in federal

court was substantially similar” to the North Carolina crime of possession of a firearm

by a felon. Id. Holding that the error was not harmless, we explained:

              Pursuant to 18 U.S.C. § 922(g)(1), it is unlawful “for any
              person . . . who has been convicted in any court of, a crime
              punishable by imprisonment for a term exceeding one year
              . . . to . . . possess in or affecting commerce, any firearm.”


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                      STATE V. WELDON

                       Opinion of the Court



18 U.S.C. § 922(g)(1) (2015). The federal offense of being a
felon in possession of a firearm requires proof that (1) the
defendant had been convicted of a crime punishable by
more than one year in prison, (2) the defendant possessed
(3) a firearm, and (4) the possession was in or affecting
commerce.

Pursuant to N.C. Gen. Stat. § 14-415.1(a), it is unlawful in
North Carolina “for any person who has been convicted of
a felony to . . . possess . . . any firearm.” N.C. Gen. Stat. §
14-415.1(a) (2015). The state offense of possession of a
firearm by a felon requires proof that (1) the defendant
had been convicted of a felony and (2) thereafter possessed
(3) a firearm. . . .

There are two notable differences between the offenses, the
first being the “interstate commerce” element. This
“jurisdictional element” requires “the government to show
that a nexus exists between the firearm and the interstate
commerce to obtain a conviction under § 922(g)” United
States v. Wells, 98 F.3d 808, 811 (4th Cir. 1996). It “is
typically satisfied by proof that the firearm . . . , or parts of
the firearm, were manufactured in another state or
country.” . . . A conviction under 18 U.S.C. § 922(g)(1)
necessarily includes conduct which would violate N.C. Gen.
Stat. § 14-415.1(a), but not vice versa. If, for example, the
firearm was manufactured within the state, possessed by a
felon within the same, and was not transported by any
vehicle of interstate commerce, then possession would
presumably fall short of conduct prohibited by § 922(g)(1).
Such a situation seems unlikely, however, based upon the
federal courts’ broad interpretation of “in or affecting
commerce.” . . .

The second difference concerns the persons subject to
punishment. The federal offense requires that the person
have been previously convicted of a crime “punishable by
imprisonment for a term exceeding one year,” while the
North Carolina offense requires that the person have been
previously “convicted of a felony.” A felony conviction in


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                                  STATE V. WELDON

                                   Opinion of the Court



             North Carolina is not necessarily punishable by more than
             one year in prison. . . . If convicted of a Class I felony, a
             defendant with a prior record level IV or higher may be
             imprisoned for a term exceeding one year, but a defendant
             with a prior record level III or lower faces only community
             or intermediate punishment. . . . Apart from this limited
             example, however, every other class of felony in North
             Carolina is punishable by imprisonment for a term
             exceeding one year and thus comports with the element of
             the federal offense.

             There may be other hypothetical scenarios which highlight
             the more nuanced differences between the two offenses.
             But the subtle distinctions do not override the almost
             inescapable conclusion that both offenses criminalize
             essentially the same conduct—the possession of firearms by
             disqualified felons.

Id. at ___, 802 S.E.2d at 498-500 (some citations omitted) (emphasis added). This

Court in Riley likewise noted that both 18 U.S.C. § 922(g)(1) and N.C. Gen. Stat. §

14-415.1 had remained unchanged between the 2012 and 2015 time period in

question.

      Indeed, the federal offense of unlawful possession of a firearm and the North

Carolina offense of possession of a firearm by a felon have remained unchanged since

defendant’s federal conviction in 2010. Compare 18 U.S.C. § 922(g)(1) (2010) with 18

U.S.C. § 922(g)(1) (2016), and N.C. Gen. Stat. § 14-415.1 (2010) with N.C. Gen. Stat.

§ 14-415.1 (2016). Because this Court has already determined that defendant’s

present offense is substantially similar to his federal offense, we necessarily conclude

that the trial court’s prior record level determination was correct. See State v. Jones,



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                                     STATE V. WELDON

                                     Opinion of the Court



358 N.C. 473, 487, 598 S.E.2d 125, 133 (2004) (“ ‘Where a panel of the Court of

Appeals has decided the same issue, albeit in a different case, a subsequent panel of

the same court is bound by that precedent, unless it has been overturned by a higher

court.’ ”) (quoting In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989)).

Accordingly, any such error asserted by defendant is harmless error.

                                     V. Conclusion

      For the aforementioned reasons, we conclude that defendant received a fair

trial free from prejudicial error.


      NO ERROR.

      Judges STROUD and ARROWOOD concur.




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