Opinion
No. 07-1063.
Filed March 18, 2008.
Forsyth County No. 05CRS54581.
Appeal by Defendant from judgment entered 10 May 2007 by Judge Ronald E. Spivey in Forsyth County Superior Court. Heard in the Court of Appeals 10 March 2008.
Attorney General Roy Cooper, by Assistant Attorney General Charles E. Reece, for the State. Russell J. Hollers, III, for Defendant.
This case returns after having been remanded for re-sentencing. See State v. Platt, No. COA06-1063, 2007 N.C. App. LEXIS 742. A jury found Defendant guilty on 1 March 2006 of two counts of assault with a deadly weapon with intent to kill inflicting serious injury. The trial court sentenced Defendant to two consecutive terms of imprisonment of 100-129 months each. Defendant appealed to this Court, which found no error in defendant's trial but found the trial court erred in failing to determine whether a conviction of a certain offense in the State of Kansas was substantially similar to an offense in North Carolina. This Court remanded the matter for the making of this determination. The re-sentencing hearing commenced on 7 May 2007. The prosecutor presented to the court the transcript of the trial and directed the court's attention to Defendant's trial testimony admitting that he had been convicted in Kansas of felony assault with a deadly weapon. The prosecutor also presented to the court Kansas statute 21-3410, which defines the offense of aggravated assault. When the prosecutor could not locate in her file a certified copy of the judgment rendered in Kansas, the court agreed to hold the case open until the following Thursday.
On 10 May 2007 the court resumed the hearing. The prosecutor presented to the court four certified documents provided by the clerk of court of the Tenth Judicial District in Johnson County, Kansas. These documents, each entitled "Journal Entry[,]" showed (1) that Defendant pled guilty on 1 November 1993 to attempted aggravated assault, an offense "defined and classified in K.S.A. 21-3301 and K.S.A. 21-3410, as a class E felony"; (2) that on 6 January 1994 the court sentenced Defendant to probation for commission of this offense; (3) that on 30 September 1994 the court revoked probation; and (4) that on 5 January 1995, the court imposed an active sentence of six months upon surrender of probation. The prosecutor also provided the court with the Kansas statutes referenced by the journal entries.
After hearing arguments of counsel and reviewing the documents, the court determined that the Kansas offense of attempted aggravated assault is substantially equivalent to the North Carolina Class 1 misdemeanor offense of attempted assault with a deadly weapon. The court assigned one point to the conviction, found that the prior record level remained the same as before, and re-sentenced defendant to the same sentences previously imposed. Defendant appealed.
Defendant contends that the State failed to carry its burden of proving that an offense from another jurisdiction is substantially similar to an offense classified as a Class A1 or Class 1 misdemeanor in North Carolina. Defendant argues the statutes provided by the prosecutor applied only to offenses committed after 1 July 1993. Defendant further argues that even if the State provided the court with the correct and pertinent statutes, the court erred in concluding that the Kansas conviction is substantially similar to a North Carolina offense.
"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-1340.14(f)(4) (2007).
Except as otherwise provided in this subsection, a conviction occurring in a jurisdiction other than North Carolina is classified as a Class I felony if the jurisdiction in which the offense occurred classifies the offense as a felony, or is classified as a Class 3 misdemeanor if the jurisdiction in which the offense occurred classifies the offense as a misdemeanor. If the offender proves by the preponderance of the evidence that an offense classified as a felony in the other jurisdiction is substantially similar to an offense that is a misdemeanor in North Carolina, the conviction is treated as that class of misdemeanor for assigning prior record level points. If 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. If the State proves by the preponderance of the evidence that an offense classified as a misdemeanor in the other jurisdiction is substantially similar to an offense classified as a Class A1 or Class 1 misdemeanor in North Carolina, the conviction is treated as a Class A1 or Class 1 misdemeanor for assigning prior record level points.
N.C. Gen. Stat. § 15A-1340.14(e) (2007). Whether an out-of-jurisdiction offense is substantially similar to a North Carolina offense is a question of law to be determined by the trial judge. State v. Hanton, 175 N.C. App. 250, 254, 623 S.E.2d 600, 604 (2006). Determination of this question involves comparison of the elements of the out-of-state offense to those of criminal offenses in North Carolina. Id. at 254, 623 S.E.2d at 604. As a question of law, appellate review of the court's finding of substantial similarity is de novo. Staton v. Brame, 136 N.C. App. 170, 174, 523 S.E.2d 424, 427 (1999).
The offense of aggravated assault is defined by statute in Kansas as "an assault, as defined in K.S.A. § 21-3408 and amendments thereto, committed: (a) With a deadly weapon; (b) while disguised in any manner designed to conceal identity; or (c) with intent to commit any felony." Kan. Stat. Ann. § 21-3410 (2006). An attempt is defined in that state as "any overt act toward the perpetration of a crime done by a person who intends to commit such crime but fails in the perpetration thereof or is prevented or intercepted in executing such crime." Kan. Stat. Ann. § 21-3301(a)(2006). The legislative history appended to § 21-3410 discloses that the statute has been amended only twice since its codification in 1969. The first change occurred in 1992, when the Kansas legislature added the language to define assault consistent with another statute. 1992 Kan. Sess. Laws ch. 298, § 10. The second change occurred in 1993 when the Kansas legislature revised its sentencing laws, much like North Carolina did with the Structured Sentencing Act, to classify this particular offense effective to offenses committed after the date of 1 July 1993. 1993 Kan. Sess. Laws ch. 291, § 25. These amendments did not materially change the substantive elements of the offense. We thus conclude that the trial court could properly rely upon the statutes submitted by the prosecutor in making its comparison of the Kansas offense to a North Carolina offense.
We next consider whether the trial court correctly determined that the Kansas offense defined by Kan. Stat. Ann. § 21-3410 is substantially similar to the North Carolina offense of misdemeanor assault with a deadly weapon. This offense is defined by the General Statutes as follows:
Unless the conduct is covered under some other provision of law providing greater punishment, any person who commits any assault, assault and battery, or affray is guilty of a Class A1 misdemeanor if, in the course of the assault, assault and battery, or affray, he or she:
(1) Inflicts serious injury upon another person or uses a deadly weapon.
N.C. Gen. Stat. § 14-33(c) (2007). The elements of attempt are an intent to commit the substantive offense and an overt act which goes beyond mere preparation but falls short of the completed offense. State v. Robinson, 355 N.C. 320, 338, 561 S.E.2d 245, 257 (2002). Defendant argues that because the Kansas statute contains two additional alternative methods in which the offense of attempted aggravated assault may be committed without the use of a deadly weapon, the offense is not substantially similar to the North Carolina offense of attempted assault with a deadly weapon. We disagree.
In State v. Key, 180 N.C. App. 286, 294, 636 S.E.2d 816, 822-23 (2006), disc. review denied, 361 N.C. 433, 649 S.E.2d 398 (2007), the defendant had a prior conviction of "theft" or "unauthorized control over property" in the State of Maryland. The pertinent statute forbade a person to "willfully or knowingly obtain or exert unauthorized control over property, if the person: (1) intends to deprive the owner of the property; (2) willfully or knowingly uses, conceals, or abandons the property in a manner that deprives the owner of the property; or (3) uses, conceals, or abandons the property knowing the use, concealment, or abandonment probably will deprive the owner of the property." Md. Ann. Code art. 27, § 7-104 (2005). Although this statute cited three alternative ways in which the offense may be committed, this Court held that the trial court properly determined the Maryland offense to be substantially similar to the North Carolina common law offense of misdemeanor larceny, which is committed when one takes and carries away the property of another without the owner's consent and with the intent to deprive the owner of his property permanently.
"`[I]n construing statutes courts normally adopt an interpretation which will avoid absurd or bizarre consequences, the presumption being that the legislature acted in accordance with reason and common sense and did not intend untoward results.'" State v. Jones, 359 N.C. 832, 837-38, 616 S.E.2d 496, 499 (2005) (quoting State ex rel. Comm'r of Ins. V. N.C. Auto. Rate Admin. Office, 294 N.C. 60, 68, 241 S.E.2d 324, 329 (1978)). A sentencing court is required by N.C. Gen. Stat. § 15A-1340.14(e) to determine whether a criminal offense in one state is substantially similar to a crime in this state. A person who assaults another with a deadly weapon, without more, in Kansas is guilty of that state's offense of aggravated assault. See State v. Daniels, 12 Kan. App. 2d 479, 481, 753 P.2d 300, 302 (Kan.Ct.App. 1987)("aggravated assault is unlawfully assaulting or striking at another with a deadly weapon"). A person who engages in the same conduct in North Carolina is guilty of assault with a deadly weapon as defined in N.C. Gen. Stat. § 14-33 (2007). Our opinion in the prior appeal shows defendant testified that he was convicted of assault in Kansas for stabbing another person with a kitchen knife. For the same conduct in North Carolina he could have been convicted of assault with a deadly weapon. The elements of attempt in Kansas are also substantially similar to the elements in North Carolina. We hold the trial court properly concluded that the Kansas offense of attempted aggravated assault is substantially similar to the North Carolina offense of attempted assault with a deadly weapon.
The judgment is
Affirmed.
Judges McGEE and STROUD concur.
Report per Rule 30(e).