232 N.C. App. 262
N.C. Ct. App.2014Background
- Defendant Rondell Luvell Sanders was resentenced for robbery with a dangerous weapon after this Court previously remanded because the trial court compared punishments rather than elements in assessing out-of-state prior convictions.
- The State sought prior-record-level points for two Tennessee convictions: theft (Mar. 2009) and domestic assault (Jan. 2009), based on substantial-similarity to North Carolina offenses.
- Defendant argued the State failed to prove the Tennessee statutes in effect at the time of his convictions and that the Tennessee offenses were not substantially similar to the North Carolina counterparts.
- The trial court treated the Tennessee theft as substantially similar to North Carolina misdemeanor larceny and treated Tennessee domestic assault as substantially similar to North Carolina assault on a female.
- The Court reviewed questions of statutory-element similarity de novo and examined whether the State presented the necessary out-of-state statutory material to establish elements.
- The Court affirmed the theft/larceny similarity but found error as to domestic-assault vs. assault-on-a-female and remanded for resentencing on that basis.
Issues
| Issue | State's Argument | Sanders' Argument | Held |
|---|---|---|---|
| Whether the State proved the applicable Tennessee statutory versions for the priors | State provided Tennessee judgments and the Court should assume statutes were correctly presented absent Tennessee authority to the contrary | Sanders argued the State failed to prove the statutes were unchanged from the versions in force when he offended | Held: No error — absent Tennessee law showing amendments operate like NC, Court assumed correct statute versions were presented |
| Whether Tennessee theft is substantially similar to NC misdemeanor larceny | Elements align (knowingly obtained/control, no consent, intent to deprive) and Tennessee requires intent to permanently deprive per Tennessee case law | Sanders argued Tennessee theft lacks a permanent-deprivation element so it is not similar (e.g., temporary ‘‘joyride’’ could qualify) | Held: Tennessee theft is substantially similar to NC misdemeanor larceny; trial court did not err |
| Whether the State proved the elements of Tennessee domestic assault (statutory materials) | State presented Tenn. Code Ann. § 39-13-111 and relied on common-law/elemental understanding of assault | Sanders argued the State failed to provide § 39-13-101 (which § 39-13-111 references), so the record lacked the statute defining assault | Held: Error — State did not present the linked statute (§ 39-13-101); trial court erred under Fortney requirement to compare elements |
| Whether Tennessee domestic assault is substantially similar to NC assault on a female (G.S. 14-33(c)) | State argued the statutes are substantially similar in purpose and elements and the record facts support similarity | Sanders argued Tennessee domestic assault is gender- and relationship-neutral and thus differs materially from NC assault-on-a-female which requires a female victim and no relationship element | Held: Not substantially similar — Tennessee domestic assault is relationship-based and gender-neutral, while NC §14-33(c) requires a female victim; remand for resentencing |
Key Cases Cited
- State v. Fortney, 201 N.C. App. 662, 687 S.E.2d 518 (2010) (elemental comparison of out-of-state and NC offenses is a question of law reviewed de novo)
- State v. Wright, 210 N.C. App. 52, 708 S.E.2d 112 (2011) (same rule requiring element-by-element comparison)
- State v. Hanton, 175 N.C. App. 250, 623 S.E.2d 600 (2006) (statute’s silence on how to determine substantial similarity and rule of lenity favors defendant)
- State v. Key, 180 N.C. App. 286, 636 S.E.2d 816 (2006) (look to underlying purposes to avoid absurd outcomes when comparing statutes)
- State v. Gurganus, 39 N.C. App. 395, 250 S.E.2d 668 (1979) (§ 14-33 provides differing punishments based on assault circumstances; legislative purpose to prevent bodily injury)
- State v. Roberts, 270 N.C. 655, 155 S.E.2d 303 (1967) (assault defined at common law as unauthorized harmful or offensive contact)