S.L. 2017-176 makes two important changes to which prior convictions can support a habitual felon charge. The legislation (1) clarifies the status of prior convictions from New Jersey and other states that don’t use the term “felony,” and (2) imposes a new requirement that a prior conviction from another state be for an offense that is “substantially similar” to a North Carolina felony. Continue reading
Tag Archives: substantial similarity
A couple of weeks ago, the court of appeals decided State v. Davis, __ N.C. App. __ (2012). For prosecutors, defense lawyers, and judges handling sex crime cases, it’s a significant opinion concerning Rule 404(b).
The defendant in Davis was charged with indecent liberties and first-degree sexual offenses based primarily on his young son’s reports that the defendant had anal and oral sex with him. Medical examinations of the child found nothing abnormal, but the defendant’s sperm were found in one pair of the child’s underwear.
The case went to trial, and the child testified about his father’s actions. The defendant also testified, denying the charges and asserting that the child’s mother had encouraged the child to fabricate the allegations as a way of gaining leverage in the couple’s divorce and custody battle. The state cross-examined the defendant about a composition book in which he wrote short stories and other material. The book included an entry in the form of a letter to a woman the defendant had known; the letter, which was admitted into evidence, described the defendant forcing the woman to have anal intercourse with him. The defendant was convicted of sexually assaulting his son.
He appealed, arguing, inter alia, that the cross-examination regarding the letter should have been excluded under Rule 404(b). The state contended that the letter was not fictional, but rather described an assault that had actually occurred, and that it was admissible under Rule 404(b) to show a common plan or scheme to obtain sexual gratification through forcible anal sex. The court of appeals disagreed, ruling that forcible anal sex with an adult woman is far removed from anal sex with a young boy by constructive force, and noting the lack of any other similarity between the incidents, such as a similar location, setting, or method of approaching the victims. In short, the court held that in order to establish a common scheme or plan under Rule 404(b), the evidence in question must be similar to the charged offense, and the mere fact that both the charged offense and the conduct described in the letter involved nonconsensual anal sex was not enough to establish similarity. The court also found fault with another aspect of the state’s cross-examination of the defendant, which I won’t get into here, and ruled that the combined effect of the two errors was prejudicial and required a new trial.
As support for its conclusion that the common thread of forcible anal sex was insufficient to show substantial similarity, the court cited State v. Dunston, 161 N.C. App. 468 (2003) (“We conclude that the fact defendant engaged in and liked consensual anal sex with an adult, whom he married, is not by itself sufficiently similar to engaging in anal sex with an underage victim beyond the characteristics inherent to both, i.e., they both involve anal sex, to be admissible under Rule 404(b).”). The court’s conclusion finds at least some support in out-of-state cases like State v. Williams, 874 P.2d 12 (N.M. 1994) (the defendant’s enjoyment of anal sex was not so distinctive as to constitute a “signature” for purposes of Rule 404(b)). It seems to me that the extent to which the involvement of anal sex in both the charged offenses and the letter tends to show that the two incidents are substantially similar depends in part on the prevalence of anal sex. For example, I don’t think anyone would contend that two sexual assaults could be deemed substantially similar based solely on the fact that both involved vaginal intercourse, because that’s a very common sexual practice. On the other hand, if two incidents both involved truly unusual sexual activity — fill in your own example — the extremely atypical sexual conduct might alone tend to show similarity. Wikipedia cites data from the CDC suggesting that 40% of men and 35% of women between 25 and 44 have engaged in anal sex. That’s a fairly high percentage, though of course, most of that sexual activity is presumably consensual, while in Davis, both the charged conduct and the conduct described in the letter were nonconsensual, though involving somewhat different types of force.
Finally, note that Davis does not hold that the common thread of anal sex is irrelevant under Rule 404(b). It can help show similarity, as it did in State v. Barkley, 144 N.C.App. 514 (2001) (sufficient similarity where “[b]oth victims were young black females accosted in Charlotte in the early morning hours. In both cases, the victims were grabbed from behind by the mouth and the assailant held a sharp object to their throats while directing them to a dark secluded area. In addition defendant disrobed both victims and forced them to have vaginal and anal sex.”). Under Davis, though, it is not sufficient by itself.
Under G.S. 15A-1340.14(e), a defendant’s prior out-of-state convictions count by default as Class I felonies if the other jurisdiction classifies them as a felony, or as Class 3 misdemeanors if the other jurisdiction classifies them as a misdemeanor. The State or the defendant may, however, attempt to depart from those default classifications through a preponderance-of-the-evidence showing that the offense is “substantially similar” to a North Carolina offense with a different classification. For example, the State might try to show that a prior rape conviction from another State is substantially similar to first-degree rape in North Carolina, and should thus count as a Class B1 conviction (9 points) instead of the default Class I (2 points). Conversely, the defendant might attempt to show that a felony conviction from another state is similar to a misdemeanor in North Carolina. For defendants with significant out-of-state records, those substantial similarity determinations can have a big impact on prior record level.
A common sentencing error is a defendant’s improper stipulation to the substantial similarity of prior convictions from other jurisdictions. The court of appeals has held many times that substantial similarity is a question of law that may not be validly stipulated to by the defendant. See, e.g., State v. Hanton, 175 N.C. App. 250 (2006); State v. Palmateer, 179 N.C. App. 579 (2006); State v. Lee, 193 N.C. App. 748 (2008). Instead, the court must make a legal determination that the out-of-state conviction is indeed substantially similar to a North Carolina crime with a particular offense classification. There is a check-box near the bottom of the front page of the prior record level worksheet (AOC-CR-600) for the court to indicate that it has made the requisite finding. No findings are required if the parties are content to count the out-of-state crimes at the default levels described in the first paragraph above. A defendant may stipulate to the existence of the prior conviction and even to its classification in the other jurisdiction as a felony or misdemeanor, State v. Bohler, 198 N.C. App. 631 (2009), but not to substantial similarity. I discussed the issue in this prior post.
How should the court go about making its legal determination of substantial similarity? The General Statutes do not say, but cases from the appellate courts offer pretty clear guidance: the court should review copies of the out-of-state criminal law and compare the elements of the out-of-state offense to those of the purportedly similar North Carolina offense. State v. Hanton, 175 N.C. App. 250 (2006); see also State v. Rich, 130 N.C. App. 113 (1998) (holding that photocopies of statutes from New York and New Jersey were sufficient proof that the defendant’s crimes in those states were substantially similar to crimes in North Carolina); State v. Hadden, 175 N.C. App. 492 (2006) (photocopies of statutes from New York and Illinois, along with testimony by a detective, sufficient to prove substantial similarity). Cf. State v. Burgess, __ N.C. App. __ (Sept. 20, 2011) (remanding for resentencing when the defendant’s South Carolina crimes were identified only by “brief and non-specific descriptions” and the State failed to show that the 2008 copies of the law were unchanged from the 1993 and 1994 versions under which the defendant had been convicted); State v. Cao, 175 N.C. App. 434 (2006) (computerized printout of defendant’s criminal history record from Texas, showing only the names of offenses committed there, sufficient to prove existence of the convictions but insufficient evidence of substantial similarity to North Carolina crimes); State v. Morgan, 164 N.C. App. 298 (2004) (remanding for resentencing when the State presented a copy of the 2002 New Jersey homicide statute but offered no evidence that the statute was unchanged from the 1987 version of the law under which the defendant was convicted).
Even with copies of another state’s laws in hand the comparison will not always be easy. In State v. Rollins, __ N.C. App. __ (July 17, 2012), the trial court found that the defendant’s Florida burglary conviction was substantially similar to a Class G second-degree burglary in North Carolina and should thus count for 4 points instead of the default 2 points for a Class I. The court of appeals disagreed, holding that the Florida crime was not sufficiently similar to the crime we call “burglary” here. Unlike North Carolina burglary, the Florida crime need not occur at night and does not require both a breaking and an entering. The appellate court concluded that the Florida crime is, at most, substantially similar to North Carolina’s Class H felonious breaking or entering and should thus count for no more than 2 prior record points. If an out-of-state crime has elements that are substantially similar to multiple North Carolina offenses, the rule of lenity requires that the court assign record points corresponding to the less serious North Carolina offense. Hanton, 175 N.C. App. at 259 (holding that New York second-degree assault was more similar to North Carolina simple assault than to assault inflicting serious injury).
With these cases in mind, the party arguing for substantial similarity should be prepared to offer a copy of the relevant out-of-state law and, to be safe, probably also any lesser offenses that might be even more similar. Stipulations obviously should be avoided. The court should review those statutes and announce its determination accordingly.
Wouldn’t it be nice if every state had a resource substantially similar to North Carolina Crimes?