Evaluating Substantial Similarity of Prior Out-of-State Convictions after State v. Graham

State v. Graham, 2021-NCSC-125, 379 N.C. 75 (2021), sheds new light on what it means for an out-of-state prior conviction to be “substantially similar” to a North Carolina crime for prior record level purposes.

As noted in several prior posts on this blog, including this one, a special classification rule applies to out-of-state prior convictions for purposes of assigning prior record points. By default, a prior conviction for a crime that another jurisdiction classifies as a felony counts as a Class I felony (which carries two points) for record-level purposes in North Carolina. A prior conviction for a crime that another state classifies as a misdemeanor is classified as a Class 3 misdemeanor, and so does not factor into a defendant’s prior record level at all. G.S. 15A-1340.14(e).

The State or the defendant can attempt to depart from the default classification by presenting evidence that the offense is substantially similar to an offense in North Carolina with an offense class different from the default. If the State can prove by a preponderance of the evidence that an offense classified as either a misdemeanor or a felony in the other jurisdiction is substantially similar to a North Carolina offense that is classified as a Class I felony or higher, the conviction is treated as that class of felony for prior record level purposes. If the State can prove that a misdemeanor from another jurisdiction is substantially similar to a Class A1 or Class 1 misdemeanor in North Carolina, the conviction is treated as a Class A1 or Class 1 misdemeanor for prior record purposes. Conversely, if the defendant can prove that an offense classified as a felony in another jurisdiction is substantially similar to a North Carolina misdemeanor, the conviction will be treated as that class of misdemeanor for prior record level purposes.

How similar must an out-of-state conviction be to be “substantially similar” within the meaning of G.S. 15A-1340.14(e)? That is a question explored in many appellate cases, most of them from the Court of Appeals; some of them are noted in the earlier post linked above. The Supreme Court eventually weighed in in State v. Sanders, 367 N.C. 716 (2014), concluding that a defendant’s prior Tennessee conviction for domestic assault under Section 39-13-111 of the Tennessee Code was not substantially similar to a North Carolina assault on a female under G.S. 14-33(c). The Court compared the elements of the two offenses (not the specific facts of the particular crime committed by the defendant) and concluded that the crimes were not substantially similar because each included elements that the other did not. For example, “a woman assaulting her child or her husband could be convicted of ‘domestic assault’ in Tennessee, but could not be convicted of ‘assault on a female’ in North Carolina.” Sanders, 367 N.C. at 721. Likewise, “[a] male stranger who assaults a woman on the street could be convicted of ‘assault on a female’ in North Carolina, but could not be convicted of ‘domestic assault’ in Tennessee” because the victim would not fall within Tennessee’s statutory definition of a “domestic abuse victim.” Id.

The Court applied its “comparative elements test” from Sanders in State v. Graham. In Graham, the defendant was being sentenced for a conviction of sexual offense with a child by an adult. He had a prior conviction from Georgia for statutory rape under Section 16-6-3 of the Georgia Code. The State argued that the prior Georgia conviction was substantially similar to a Class B1 statutory rape in North Carolina under G.S. 14-27.25(a). The trial court agreed, counted the prior conviction for 9 points instead of the default 2, and sentenced the defendant from prior record level IV instead of II.

On appeal, the defendant argued that the Georgia crime was not substantially similar to Class B1 statutory rape in North Carolina. He argued that it differed from the required age differential applicable to different felony classifications in North Carolina, and that the Georgia offense could theoretically be committed in ways that wouldn’t constitute a crime at all in North Carolina. The Georgia crime applies to sexual intercourse with any person under the age of 16 who is not the defendant’s spouse. Punishment is higher if the defendant is 21 years of age or older, and the crime is a misdemeanor if the victim is 14 or 15 years old and the defendant is no more than three years older than the victim. Ga. Code. Ann. § 16-6-3 (2001). In North Carolina, the B1 version of statutory rape applies only when the victim is 15 or younger and the defendant is at least 6 years older than the victim. G.S. 14-27.25(a). It is a Class C felony if the victim is 15 or younger and the defendant is more than four but less than 6 years older than the victim.

You can imagine several scenarios in which the Georgia statute differs from the North Carolina statute. For example, just-turned-21 defendant who has sex with about-to-turn 16 victim is committing the most serious version of the crime in Georgia, but is committing only the Class C version of North Carolina’s crime, because the defendant is not a full 6 years older than the victim. Just-turned-18 defendant who has sex with a 15-year-old victim in Georgia is committing a misdemeanor there, but that’s no crime at all in North Carolina (assuming it wasn’t forcible, of course) when the defendant is not at least 4 years older than the victim. The defendant pointed out differences and discrepancies like these in his argument before the Supreme Court.

The Court found those arguments unpersuasive, concluding that North Carolina’s prior record level statute requires only that comparable out-of-state crime be substantially similar, not identical. The crimes need not “precisely match.” Slip op. ¶ 11. The Court distinguished the marginal age-differential overlaps at issue in Graham from the “total elimination of one gender from the ability to offend” and “the relationship status of victims and offenders” at issue in Sanders with assault on a female and Tennessee’s domestic abuse offense. The Court thus affirmed the trial court’s determination that the prior Georgia conviction was substantially similar to Class B1 statutory rape under G.S. 14-27.25(a).

Graham highlights the difficulty of comparing crimes from different jurisdictions, particularly using an elements-based approach, and perhaps especially in the context of age-based thresholds. An elements-based approach is essential if you want to avoid relitigation (or perhaps litigation for the first time) of facts pertaining to an offense that may have been committed long ago, but it does make it difficult to analyze precisely how certain behavior elsewhere might have been prosecuted here. The particular issue of age (and age differentials between defendants and victims) is important enough in the context of sex crimes that it’s the one thing federal sex offender regulations exempt from the elements-based approach generally applicable to offense “tiering” under the Sex Offender Registration and Notification Act (SORNA). See 73 Fed. Reg. 38030, 38053 (“However, where the tier classification depends on commission of an offense against a victim who is below a certain age, the requirement to give weight to this factor (victim age) is not limited to cases involving convictions for offenses whose elements specify that the victim must be below that age. Rather, the requirement applies as well in cases in which the offender is convicted of a more generally defined offense that may be committed against victims of varying ages, if the victim was in fact below the relevant age.”). So far there’s no exception to the elements-only rule from Sanders for any particular type of fact.

This is a tough one. Yes, in the abstract, the Georgia law at issue here is similar to its North Carolina counterpart in that both criminalize having sex with younger people. But the question is this: just how criminal did the other jurisdiction think that behavior was, and how much it should it therefore factor into the punishment of a crime being sentenced now? That’s difficult to answer when the two jurisdictions use different units for their scales of seriousness, and the building-block elements overlap in different ways. But we do learn from Graham that the elements don’t need to map categorically (i.e., in all hypothetical cases) to be substantially similar enough.