Opinion
No. COA15–33.
11-03-2015
STATE of North Carolina v. David Anthony MANNO.
Roy Cooper, Attorney General, by Nancy A. Vecchia, Special Deputy Attorney General, for the State. Staples Hughes, Appellate Defender, by Paul M. Green, Assistant Appellate Defender, for defendant-appellant.
Roy Cooper, Attorney General, by Nancy A. Vecchia, Special Deputy Attorney General, for the State.
Staples Hughes, Appellate Defender, by Paul M. Green, Assistant Appellate Defender, for defendant-appellant.
Opinion
Appeal by defendant from judgments entered 12 September 2014 by Judge Richard D. Boner in Cleveland County Superior Court. Heard in the Court of Appeals 12 August 2015.
DAVIS, Judge.
David Anthony Manno (“Defendant”) appeals from his convictions for three counts of taking indecent liberties with a child, one count of first-degree rape of a child, one count of incest with a child, and one count of sexual offense with a child. On appeal, he contends that the trial court (1) plainly erred in failing to find that the victim was incompetent to testify; and (2) erred in calculating his prior record level for sentencing purposes. After careful review, we conclude that Defendant received a fair trial free from prejudicial error but remand for additional findings as to Defendant's prior record level and for resentencing as to Defendant's convictions for taking indecent liberties with a child.
Factual Background
The State presented evidence at trial tending to establish the following facts: During the time period from 24 August 2011 through 7 June 2012, Defendant lived in Lawndale, North Carolina with his wife “Nancy,” his daughter “Mary,” his son “Larry,” his stepson “Daniel,” his stepdaughter “Nora,” Nancy's parents, and Nancy's brother. Throughout this period, Mary—who was nine years old at the time of trial—suffered multiple incidents of sexual abuse committed by Defendant.
Pseudonyms are used throughout this opinion to protect the identity of the minor children and for ease of reading.
On numerous occasions, Defendant made Mary perform oral sex upon him. He also frequently forced her to engage in vaginal and anal intercourse. Prior to and during many of these incidents, Defendant made Mary watch pornographic videos with him that depicted adults engaging in sexual activities.
On one occasion, Mary's mother asked her to clean the bathroom. When Mary entered the bathroom, Defendant followed her inside and closed the door. He then removed her pants, unzipped his own pants, and inserted his penis into her vagina.
Another instance of abuse occurred when Defendant took Mary and her brother Larry, who was eleven years old at the time of trial, into the woods next to their home and forced Mary to perform oral sex upon Defendant. He then ordered Larry to unbutton and unzip his pants and made Mary perform oral sex upon Larry while Defendant watched.
On a separate occasion, while Defendant was alone with Mary and Daniel, who was eight years old at the time of trial, he ordered Daniel and Mary to remove their pants. He then forced Daniel to insert his penis into Mary's vagina while he observed.
On 22 June 2012, Mary, Daniel, and Nora were placed in foster care in the home of Robert and Lisa Boyd (“Lisa”). On 14 September 2012, Mary disclosed to Lisa some of the instances of abuse to which Defendant had subjected her. She told Lisa that she was afraid because Defendant had told her not to tell anyone about his actions and warned her that if she did so she would get into trouble. Upon Mary's disclosure of this information to her, Lisa contacted the Cleveland County Department of Social Services (“DSS”).
While the record is unclear, it appears that their placement in foster care was for reasons unrelated to any allegations of sexual abuse on the part of Defendant.
April Laborn, a social worker with DSS, visited the Boyds' home on 17 September 2012. She interviewed Mary and Daniel separately about the allegations Mary had made. On 24 September 2012, Jackie Leach, another DSS employee, filed a report with the Cleveland County Sheriff's Office concerning Defendant's alleged abuse of Mary.
Detective Bartley Lee (“Detective Lee”) was assigned to investigate Mary's allegations. A videotaped interview with Mary took place at the Cleveland County Child Advocacy Center (“the CAC”) on 22 October 2012, which Detective Lee observed but did not conduct. Detective Lee also observed an interview of Daniel at the CAC and then personally conducted an interview of Larry. Detective Lee subsequently conducted several follow-up interviews with Mary.
Dr. Christopher Cerjan (“Dr.Cerjan”), a pediatrician at the Shelby Children's Clinic, met with Mary at the CAC and questioned her about the abuse inflicted upon her by Defendant. He then performed a medical examination of Mary and found that she had suffered a “loss of hymenal tissue.”
On 13 November 2012, Defendant was indicted on (1) three counts of taking indecent liberties with a child; (2) one count of first-degree rape of a child; (3) one count of incest with a child less than 13 years old; and (4) two counts of sexual offense with a child by an adult. A jury trial was held in Cleveland County Superior Court on 8 September 2012 before the Honorable Richard D. Boner.
Mary testified for the State at trial. During her testimony, she described in detail Defendant's sexual abuse of her. Specifically, she testified about the incident with Defendant and Larry in the woods, the occasion when Defendant followed her into the bathroom and engaged in vaginal intercourse with her, and the time Defendant forced Daniel to insert his penis into her vagina while he observed. She also recalled many other occasions when Defendant would force her to engage in oral, vaginal, or anal sex with him in the living room, her bedroom, Defendant's bedroom, and the kitchen of their house.
Larry also testified for the State at trial. During his testimony, he discussed an incident during which he was present with Defendant and Mary in the woods and observed Defendant insert his penis into Mary's vagina. He further testified about another occasion when Defendant came into Mary's and Larry's bedroom and removed their clothes and forced Larry to insert his penis into Mary's vagina while Defendant watched.
Testimony was also given at trial by Daniel. He recounted an incident during which Defendant ordered Mary and Daniel to pull down their pants, and then “hooked my private parts into my sister's private part.”
The State introduced the testimony of Melody Thompson (“Thompson”), a psychotherapist with the Children's Home for Cleveland County, who had been treating Mary since DSS' initial referral of her to Thompson on 19 October 2012. The trial court allowed Thompson to provide corroborative testimony based on what Mary had told her during their sessions about Defendant's abuse.
Dr. Cerjan testified regarding both his examination of Mary and the account Mary had given him of Defendant's sexual abuse. He offered the following testimony:
Q. And what would be the reasons in a seven year old for loss of hymenal tissue in that position?
A. The loss of hymenal tissue would really come from penetrating trauma. Now, that can happen in a couple of different ways. If there is bleeding and a fresh tear, that can be something very acute, just happened. Usually, when you don't see the hymen anymore like that, it means that there have been multiple penetrating injuries to the hymen. Just during regular activities or urinating or anything like that, you're going to get some coverage with the labia majora, so this area is going to be kind of covered, so to speak. Even just kind of touching on the outside really shouldn't traumatize the hymen. It should be more up in here as far as where you can get to it.
Q. And would that finding be consistent with repetitive penetration of an adult, male penis?
A. Yes. Penetrating trauma would have caused that.
He further opined that “[m]edically, I think [Mary] has been sexually abused.”
On 12 September 2014, the jury acquitted Defendant on one charge of sexual offense with a child and found Defendant guilty of the remaining charges. Defendant was sentenced consecutively to 300–369 months imprisonment for his remaining sexual offense with a child conviction and 300–369 months for his rape of a child and incest with a child convictions, which were consolidated by the trial court. In addition, Defendant was sentenced to 21–26 months imprisonment based on his convictions for the indecent liberties with a child charges, which the trial court ordered to run concurrently with his sentence for sexual offense with a child. Defendant was also ordered to register as a sex offender and be subject to satellite-based monitoring for life. Defendant gave oral notice of appeal in open court.
Analysis
I. Competency
Defendant's first argument on appeal is that the trial court erred by failing to sua sponte initiate a voir dire examination of Mary and by implicitly finding her competent to testify despite statements she made during cross-examination—which are discussed in detail below—suggesting that she was either incapable of testifying truthfully or unable to distinguish between fantasy and reality. Defendant's trial counsel made no objections to Mary's testimony on competency grounds. Therefore, we review this argument only for plain error. See State v. Gordon, 316 N.C. 497, 501, 342 S.E.2d 509, 511–12 (1986) (“By failing to object to the court's implicit finding that [the child victim] was competent to testify, the defendant waived his right to assign this as error on appeal. The issue of the witness' competence would nevertheless be reviewable under the ‘plain error’ standard.”); see also State v. Burgess, 181 N.C.App. 27, 38, 639 S.E.2d 68, 76 (2007) (“Defendant ... argues that it was plain error for the trial court to find [the child witnesses] competent to testify. Defendant made no objection to the testimony of any of the three children, and therefore, failed to preserve this error for our review. Accordingly, we review this argument for plain error only.” (internal citation omitted)), cert. denied, 365 N.C. 337, 717 S.E.2d 384 (2011).
We are aware that in State v. Earls, ––– N.C.App. ––––, 758 S.E.2d 654, disc. review denied, 367 N.C. 791, 766 S.E.2d 643 (2014), we held that where the defendant failed to raise the issue of the child victim's competency at trial, that issue was not preserved for appellate review even for plain error, reasoning that “discretionary decisions of the trial court are not subject to plain error review.” Id. at ––––, 758 S.E.2d at 658 (citation and quotation marks omitted). However, insofar as Earls is inconsistent with Gordon, we are obligated to follow the precedent of our Supreme Court. See Dunn v. Pate, 334 N.C. 115, 118, 431 S.E.2d 178, 180 (1993) (holding that Court of Appeals “has no authority to overrule decisions of the Supreme Court and has the responsibility to follow those decisions until otherwise ordered by the Supreme Court.” (citation, quotation marks, and brackets omitted)).
For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial. To show that an error was fundamental, a defendant must establish prejudice—that, after examination of the entire record, the error had a probable impact on the jury's finding that the defendant was guilty. Moreover, because plain error is to be applied cautiously and only in the exceptional case, the error will often be one that seriously affects the fairness, integrity or public reputation of judicial proceedings.
State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (internal citations, quotation marks, and brackets omitted).
Rule 601(a) of the North Carolina Rules of Evidence states that “[e]very person is competent to be a witness except as otherwise provided in these rules.” N.C.R. Evid. 601(a). Rule 601(b), in turn, provides that “[a] person is disqualified to testify as a witness when the court determines that the person is (1) incapable of expressing himself or herself concerning the matter as to be understood, either directly or through interpretation by one who can understand him or her, or (2) incapable of understanding the duty of a witness to tell the truth.” N.C.R. Evid. 601(b).
It is well settled that “the issue of the competency of a witness rests in the sound discretion of the trial court based upon its observation of the witness. Absent a showing that the trial court's ruling as to competency could not have been the result of a reasoned decision, it will not be disturbed on appeal.” State v. Spaugh, 321 N.C. 550, 554, 364 S.E.2d 368, 371 (1988) (internal citation omitted). Moreover,
[t]here is no age below which one is incompetent as a matter of law to testify.... [I]t is the obligation of the trial court to make a preliminary determination as to the competency of a witness when a question as to the competency of the witness is raised by a party or by the circumstances.
State v. Eason, 328 N.C. 409, 426–27, 402 S.E.2d 809, 818 (1991) (internal citations omitted).
However, “as long as the victim's preliminary testimony support[s] a conclusion that she understood her duty to tell the truth, then the court's failure to grant a voir dire examination by defendant's counsel is harmless error.” State v. Huntley, 104 N.C.App. 732, 737, 411 S.E.2d 155, 158 (1991), disc. review denied, 331 N.C. 288, 417 S.E.2d 258 (1992); see also Spaugh, 321 N.C. at 553–54, 364 S.E.2d at 371 (finding no “authority for the proposition that a defendant is entitled to a new trial in every instance in which a trial court fails to conduct a voir dire inquiry into the competency of a child witness or fails to make formal findings and conclusions as to a child's competency as a witness”).
Near the beginning of her direct examination, the prosecutor asked Mary a series of foundational questions establishing Mary's understanding of her duty to tell the truth when testifying:
Q. And I'm going to ask you lots of questions about what happened in your house. Can you promise to tell me the truth about everything that I say?
A. Yes.
Q. And if I ask you something that you don't understand, you let me know, okay?
A. (Witness nods.)
Q. And if I say something wrong, you tell me. Sometimes kids are told that they can't talk back to grown-ups, but you can talk back to me today. If I say something wrong, you tell me. Deal?
A. (Witness nods.)
Q. Is that a yes or a no?
A. Yes.
However, during cross-examination, the following exchange took place between Mary and Defendant's trial counsel:
Q. Do you remember telling your therapist that you hear voices and see ghosts?
A. Yes.
Q. You tell your therapists that you see vampires?
A. Yes.
Q. And was that true, that you see those things?
A. Yes. Yes.
Q. When did you start seeing ghosts and vampires?
A. What did you say?
Q. When did you start seeing ghosts and vampires?
A. I do not know.
Q. And where do you see them?
A. Everywhere.
Q. Do you see any of them in the courtroom here today?
A. Right there's one.
Q. Right where?
A. Right there, in the corner.
Q. In the audience?
A. In the corner.
Q. In the corner?
A. Yes, over there.
Q. That corner way back in the back?
A. Yes.
Q. And what are you seeing back there in that corner? Are you seeing a ghost or a vampire or both?
A. A ghost.
Q. A ghost?
A. Yes.
Q. And how tall is the ghost that you are seeing? Is it as tall as a grown-up?
A. Yes.
Q. Is it taller than me?
A. No.
Q. Not as tall as me?
A. Yes.
Q. Has the ghost got clothes on?
A. Yes.
Q. What kind of clothes does the ghost have on?
A. He just has clothes on.
Q. Like regular clothes?
A. Yes.
Q. Can you tell if it's a boy ghost or a girl ghost?
A. It's a girl.
Q. It's a girl?
A. Yes.
Q. Does the ghost have a dress on, or does the ghost have pants on?
A. Pants.
Q. Pants?
A. Yes.
Q. And is the ghost saying anything?
A. No.
Q. No?
A. No.
Q. Has that ghost been there the whole day?
A. Yes.
Q. That you have been on the witness stand?
A. Yes.
Q. Is that the only ghost or vampire you have seen in the courtroom this afternoon?
A. No.
Q. You've seen another one?
A. Yes.
Q. Where was it?
A. That corner over there.
Q. That corner in the back? Was that a ghost or vampire that you saw in that corner?
A. A vampire.
Q. A vampire? Was it a boy vampire or a girl vampire?
A. A girl.
Q. A girl vampire? And what was she doing?
A. Just standing there.
Q. Just standing there? Was she saying anything?
A. No.
Q. But she left?
A. No.
Q. She's still there?
A. Yes.
Q. Okay. Is anybody else in here other than that girl vampire and that girl ghost? Anyone else?
A. No.
On redirect, the prosecutor returned to the issue of whether Mary understood her obligation to tell the truth while testifying:
Q. Now, what you said about your dad and your brothers and the s-e-x stuff; is that true?
A. Yes.
Q. Have you ever told anybody it wasn't true?
A. No.
Q. Are you sure it's true?
A. Yes.
Q. How do you know it's true?
A. Because it happened to me.
Q. And would you say that in court if it wasn't true?
A. What did you say?
Q. Would you come to court and say something that you know is not true?
A. No.
Q. What did we talk about when we talked about coming to court?
A. We talked about telling the truth and stuff.
Q. And did you promise to do that?
A. Yes.
Q. And have you done that today?
A. Yes.
At no point either before, during, or after Mary's testimony did Defendant's trial counsel request a voir dire examination to determine her competency to testify. Nor did the trial court intervene sua sponte to direct that such an examination take place.
Defendant does not cite to any North Carolina cases for the proposition that a trial court's failure to intervene under analogous circumstances constitutes reversible error. Rather, he concedes that “he has been unable to find a North Carolina appellate decision overturning a trial judge's finding a witness qualified under N.C. Rule Ev. [sic] 601(b) as an abuse of discretion .”
Indeed, North Carolina's appellate courts have granted trial courts wide latitude in connection with issues relating to the competency of witnesses. Our decision in State v. Ward, 118 N.C.App. 389, 455 S.E.2d 666 (1995), demonstrates the broad discretion trial courts possess in determining whether child witnesses are competent to testify. In that case, we summarized several prior cases from North Carolina courts addressing this issue.
In Jenkins, we held that the trial court did not err in finding that a four year old witness was competent to testify even though the witness gave contradictory answers on voir dire as to whether she knew the difference between the truth and a lie. Jenkins at 621–22, 351 S.E.2d at 302303. There we stated that the vast majority of cases in which a child witness' competency has been addressed have resulted in the finding, pursuant to an informal voir dire examination of the child before the trial judge, that the child was competent to testify. We pointed to State v. McNeely, 314 N.C. 451, 454–57, 333 S.E.2d 738, 741–42 (1985), where our Supreme Court upheld the trial court's finding of competency even though the child witness responded that she did not know what it meant to tell the truth. We also referred to State v. Jones, 310 N.C. 716, 722, 314 S.E.2d 529, 533 (1984), where our Supreme Court cited as evidence of competency that the child knew that if she did not tell the truth she would get a spanking.
Id. at 394, 455 S.E.2d at 669 (select internal citations and quotation marks omitted).
In Ward, the defendant was charged with first-degree statutory rape, first-degree statutory sexual offense, and taking indecent liberties with a child—all related to his abuse of a two-year-old victim. We held that even though the child witness had stated at one point that she did not understand what it meant to tell the truth, the trial court did not abuse its discretion in allowing her to testify, stating that “[a]ny contradictions in her testimony went to her credibility, rather than her competency to testify.” Id. at 397, 455 S.E.2d at 670.
In State v. McNeely, 314 N.C. 451, 333 S.E.2d 738 (1985), the defendant was charged with first-degree sexual offense against a five-year-old child. At trial, the child was allowed to testify despite the defendant's objection that she was incompetent to testify. Id. at 453, 333 S.E.2d at 740. On appeal, the defendant argued that “the child gave no indication that she could explain facts, was equivocal on her understanding of the difference between truth and falsehood, and did not show that she appreciated the importance of telling the truth.” Id. Our Supreme Court nevertheless upheld the trial court's ruling that she was competent to testify.
It is true that certain of the child's answers during the voir dire were somewhat vague and self-contradictory, just as might be expected of a little child of such tender years. Nevertheless, at points in her testimony she said quite clearly that she knew what it meant to tell the truth and to tell a lie and that it was bad to tell a lie. She also said that she was going to tell the truth and was not going to tell a lie. Since the trial judge's discretionary ruling was supported by such evidence, the defendant has failed to show that the ruling could not have been the result of a reasoned decision. Therefore, we leave the ruling undisturbed.
Id. at 457–58, 333 S.E.2d at 742 (internal citation omitted).
Similarly, in State v. Hicks, 319 N.C. 84, 352 S.E.2d 424 (1987), the defendant was charged with first-degree rape and first-degree sexual assault of a child who was seven years old at the time of trial. The defendant argued on appeal that the trial court had abused its discretion in allowing the victim to testify. Specifically, he contended that the victim did not comprehend the concept of truthfulness based, in part, on the fact that “she arguably did not understand the nature and obligation of an oath or the necessity for telling the truth.” Id. at 86, 352 S.E.2d at 425.
Our Supreme Court held that even though
[the child witness] did not understand her obligation to tell the truth from a religious point of view, and although she had no fear of certain retribution for mendacity, she knew the difference between the truth and a lie.... She indicated a capacity to understand and relate facts to the jury concerning defendant's assaults upon her, and a comprehension of the difference between truth and untruth. She also indicated that she recognized her obligation to tell the truth, and she affirmed her intention to do so.
Further, the competency of a witness is a matter which rests in the sound discretion of the trial judge in the light of his examination and observation of the particular witness. Absent a showing that the ruling as to competency could not have been the result of a reasoned decision, the ruling must stand on appeal. We are satisfied that [the child witness'] testimony met the standards of Rule 601, and we consequently hold that there was no abuse of discretion here.
Id. at 88–89, 352 S.E.2d at 426–27 (internal citations and quotation marks omitted); see also State v. Fletcher, 322 N.C. 415, 420, 368 S.E.2d 633, 636 (1988) (“We hold that the court did not err in holding the witness was competent to testify. The court was not required from the voir dire testimony to find that the child was incapable of expressing herself concerning the case or was incapable of understanding the duty of a witness to tell the truth. The fact that the child may not have told the truth in the past and was uncertain about some times and dates does not prevent her from being a competent witness.”).
We have likewise found no reversible error on a number of occasions in which the trial court failed—or refused—to conduct a voir dire examination in order to determine a child witness' competency. In Spaugh, the defendant was charged with first-degree sexual offense and first-degree rape of his thirteen-year-old daughter. At trial, the defendant's counsel requested that the trial court conduct a voir dire examination of the victim to ascertain whether she was competent to testify. The trial court denied this request and permitted the victim to testify based, in part, on the fact that she “testified that she understood what it meant to tell the truth and that she was going to tell the truth in her testimony.” Spaugh, 321 N.C. at 552–54, 364 S.E.2d at 370–71.
On appeal, the defendant argued that he was entitled to a new trial because of the trial court's failure to conduct a voir dire examination to determine the victim's competency as a witness and to make findings of fact and conclusions of law on this issue. Id. at 553, 364 S.E.2d at 370–71. Our Supreme Court rejected the defendant's argument, holding that
the testimony of the victim observed by the trial court in the present case fully supported a conclusion that the victim was not disqualified as a witness for failure to understand her duty to tell the truth as a witness. Assuming arguendo that the trial court erred in failing to conduct a voir dire examination of the witness and in failing to make specific findings and conclusions as to the witness's competency, we conclude that any such error was harmless. When, as here, the evidence clearly supports a conclusion that the witness is competent, the trial court's failure to conduct a voir dire inquiry and make specific findings and conclusions concerning the witness's competency is, at worst, harmless error.
Id. at 554–55, 364 S.E.2d at 371–72 (internal citation omitted).
This Court reached a similar result in Huntley. In that case, the defendant was charged with first-degree sexual offense against a six-year-old victim. Prior to the victim taking the witness stand, the defendant objected to her competency and sought leave to conduct a voir dire examination of her, but the trial court denied the motion. Huntley, 104 N.C.App. at 734–36, 411 S.E.2d at 156–57.
On appeal, the defendant challenged the trial court's denial of his motion for a voir dire examination and its ruling allowing the witness to testify. Id. at 735, 411 S.E.2d at 157. In determining that the trial court had not erred, we held that “in the present case, as long as the victim's preliminary testimony supported a conclusion that she understood her duty to tell the truth, then the court's failure to grant a voir dire examination by defendant's counsel is harmless error.” Id. at 737, 411 S.E.2d at 158.
In the present case, Mary's statements as to the presence of supernatural beings in the courtroom are admittedly troubling, and the better practice would have been for the trial court to require a voir dire examination and make appropriate findings of fact and conclusions of law regarding her competency. However, given Mary's responses to the prosecutor's foundational questions on direct examination and on redirect regarding her understanding of her duty to testify truthfully as well as her cogent answers to the prosecutor's questions requiring her to describe Defendant's acts of abuse, based on the caselaw discussed above we cannot say the trial court's inaction constituted reversible error.
We note that in addition to Mary's own testimony, the State offered eyewitness testimony from Daniel and Larry regarding instances of Defendant's sexual abuse of her. In addition, Dr. Cerjan's testimony established that physical evidence existed as to the fact that Mary had been sexually abused, and his testimony as to Mary's account of Defendant's abuse was consistent with Mary's trial testimony on this subject. Finally, Detective Lee, Thompson, and Lisa provided corroborative testimony showing the consistency of Mary's pretrial statements with her trial testimony. Therefore, for all of these reasons, Defendant has failed to establish that the trial court committed plain error in allowing Mary's testimony.
II. Calculation of Defendant's Prior Record Level
Defendant's final argument on appeal is that the trial court erred in its calculation of his prior record level at sentencing. Specifically, he contends that the State failed to adequately show that his convictions for the South Carolina offenses of receiving stolen goods, see S.C.Code § 16–13–180, and failure to pay for gasoline, see S.C.Code § 16–13–185, were substantially similar to North Carolina offenses. The State concedes error on this issue, and we agree.
The standard of review relating to the sentence imposed by the trial court is whether the sentence is supported by evidence introduced at the trial and sentencing hearing. However, the question of whether a conviction under an out-of-state statute is substantially similar to an offense under North Carolina statutes is a question of law requiring de novo review on appeal.
State v. Fortney, 201 N.C.App. 662, 669, 687 S.E.2d 518, 524 (2010) (internal citations and quotation marks omitted).
N.C. Gen.Stat. § 15A–1340.14(e) provides, in pertinent part, that “[i]f 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) (2013). We have held that for purposes of prior record level calculation under N.C. Gen.Stat. § 15A–1340.14(e) the “[d]etermination of whether [an] out-of-state conviction is substantially similar to a North Carolina offense is a question of law involving comparison of the elements of the out-of-state offense to those of the North Carolina offense.” Fortney, 201 N.C.App. at 671, 687 S.E.2d at 525.
Here, the State failed to provide sufficient evidence to the trial court in order for it to properly determine whether Defendant's South Carolina convictions for receiving stolen goods and failure to pay for gasoline were substantially similar to the North Carolina offenses of receiving stolen goods and larceny of motor fuel. See N.C. Gen.Stat. § 14–72; N.C. Gen.Stat. § 14–72.5. The record reveals that the State did not provide a copy of S.C.Code § 16–13–180 to the trial court until after the sentencing hearing was over and notice of appeal had been given. Moreover, there is no indication in the record that the State ever provided a copy of S.C.Code § 16–13–185 to the trial court at all.
Therefore, the trial court erred in summarily including these offenses in its computation of Defendant's prior record level. Defendant argues—and the State does not dispute—that if one or more of these offenses were omitted from the calculation of Defendant's prior record level he would have been sentenced as a prior record level II as opposed to a prior record level III. We therefore remand to the trial court for a determination on this issue and for resentencing as to Defendant's convictions for taking indecent liberties with a child. See Fortney, 201 N.C.App. at 671, 687 S.E.2d at 525 (“With respect to defendant's New York assault conviction, however, the State concedes and we so hold that the trial court failed to determine whether it is substantially similar to a North Carolina offense and that the case should be remanded for the trial court to make such a determination. Without the one point assigned to this conviction, defendant would have a prior record level of V rather than VI; it is thus necessary for the trial court to determine whether the New York conviction is substantially similar to a North Carolina offense. Consequently, we remand for resentencing solely to determine whether defendant has 18 or 19 sentencing points.”).
Defendant does not argue that the sentences imposed for his convictions for sexual offense with a child, rape of a child, or incest with a child were affected by the improper calculation of his prior record level as there are statutory mandatory minimum sentences for these other offenses.
Conclusion
For the reasons stated above, we conclude that Defendant received a fair trial free from prejudicial error but remand to the trial court to make a determination regarding Defendant's prior record level and for resentencing as to Defendant's convictions for taking indecent liberties with a child.
NO PREJUDICIAL ERROR AT TRIAL; REMANDED FOR RECALCULATION OF PRIOR RECORD LEVEL AND RESENTENCING.
Chief Judge McGEE and Judge HUNTER, JR., concur.
Report per Rule 30(e).