IN THE SUPREME COURT OF NORTH CAROLINA
2021-NCSC-125
No. 155PA20
Filed 29 October 2021
STATE OF NORTH CAROLINA
v. JOHN D. GRAHAM
Discretionary review allowed pursuant to N.C.G.S. § 7A-31 concerning the
opinion of a divided panel of the Court of Appeals, 270 N.C. App. 478 (2020), finding
no error in part and vacating and remanding in part an order entered on 13 December
2016 by Judge Eric Levinson in Superior Court, Clay County1 and an order entered
on 13 May 2019 by Judge Athena F. Brooks in Superior Court, Clay County. Heard
in the Supreme Court on 26 April 2021.
Joshua H. Stein, Attorney General, by Benjamin O. Zellinger, Special Deputy Attorney General, for the State-appellee.
Glenn Gerding, Appellate Defender, by Daniel Shatz, Assistant Appellate Defender, for defendant-appellant.
MORGAN, Justice.
¶1 This Court has limited its allowance of defendant’s petition for discretionary
1 The Court of Appeals judge who rendered an opinion “concurring in part and dissenting in part” did not disagree with the lower appellate court’s majority opinion concerning the subject of our opinion here. See State v. Graham, 270 N.C. App. 478, 502 (2020) (Bryant, J., concurring in part and dissenting in part). As a result, this Court afforded discretionary review to the issue addressed herein so as to be able to consider it. STATE V. GRAHAM
Opinion of the Court
review to a single issue addressed by the Court of Appeals which defendant contends
that the lower appellate court decided in error. Pertinent to our election to review
this case is defendant’s argument that the Court of Appeals either improperly applied
or disregarded the appropriate test for determining whether a defendant’s out-of-
state conviction may be counted as an elevated felony classification for purposes of
sentencing in North Carolina trial courts as announced in State v. Sanders, 367 N.C.
716 (2014). Because we believe that the Court of Appeals majority, with which the
lower appellate court’s dissenting opinion agreed, properly applied the comparative
elements test in affirming the trial court’s consideration of defendant’s conviction in
the state of Georgia for statutory rape as equivalent to a North Carolina Class B1
felony for the purpose of the calculation of prior record level points in criminal
sentencing, we affirm the Court of Appeals determination and find no error.
I. Factual and Procedural Background
¶2 Defendant was indicted on four counts each of sexual offense with a child by
an adult and taking indecent liberties with a child by a Clay County grand jury on 11
September 2012. Defendant’s trial began on 5 December 2016. The victim in the case,
A.M.D.,2 testified that on multiple occasions when she was seven to eight years old,
defendant inappropriately touched her private areas and digitally penetrated her
2 The juvenile victim’s initials are used to obscure her identity in an effort to protect
the victim’s privacy. STATE V. GRAHAM
vagina. At the close of the State’s evidence, the State voluntarily dismissed all four
counts of taking indecent liberties with a child, and the trial court submitted the
remaining four counts of sexual offense with a child by an adult to the jury after both
parties had ended their respective presentations. On 9 December 2016, the jury
returned a verdict of guilty on one count of sexual offense with a child by an adult,
and found defendant not guilty as to the three remaining charges. The trial court
continued sentencing until the following week.
¶3 At the sentencing hearing on 13 December 2016, the State tendered to the trial
court defendant’s conviction on 21 March 2001 for statutory rape in Georgia,3 as well
as defendant’s more recent conviction on 9 April 2015 for escaping a local jail in Clay
County, for consideration by the trial court in its calculation of defendant’s prior
record level. In compliance with the regular procedure for trial courts in North
Carolina, the trial court in this case utilized a standardized AOC-CR-600B form to
determine, under a structured sentencing statutory framework, the manner in which
defendant’s prior convictions would affect the length of active time that defendant
would serve for his single Class B1 felony conviction in violation of North Carolina
law for the commission of sexual offense with a child by an adult. The trial court
3 The record reflects that the victim in defendant’s 2001 conviction for statutory rape
in Georgia was the mother of A.M.D. It appears that after defendant was released from the active term that he was serving for the Georgia conviction, defendant absconded probation with the assistance of A.M.D.’s mother, and was invited by A.M.D.’s mother to reside with her and A.M.D. STATE V. GRAHAM
treated defendant’s Georgia statutory rape conviction as a Class B1 felony—which
garnered defendant nine prior record points for sentencing purposes—because the
trial court regarded the Georgia statute under which defendant was convicted as
similar to North Carolina’s own statutory rape statute. In the event that the trial
court had classified defendant’s Georgia conviction in the lower felony class level of
Class I, which was an option available to the trial court, then defendant would have
been assigned only two prior record points for the Georgia conviction as the trial court
determined defendant’s sentence for his perpetration of the North Carolina criminal
offense of sexual offense with a child by an adult. Combined with one point assigned
for defendant’s previous escape conviction, defendant was assigned a total of ten prior
record level points for sentencing purposes, which automatically categorized him as
a Level IV offender for sentencing determinations. On the other hand, if the trial
court had declined to find substantial similarity between the Georgia and North
Carolina statutes at issue, then defendant would have received a total of only three
prior record level points which would have classified him as a prior record Level II
offender under North Carolina’s structured sentencing guidelines. In sentencing
defendant within the parameters of prior record Level IV, the trial court entered a
judgment of 335 to 462 months of active time of incarceration for defendant.
Defendant appealed, and the Court of Appeals panel held that the trial court did not
err as to finding substantial similarity between the Georgia and North Carolina STATE V. GRAHAM
statutes.
II. Analysis
¶4 On 21 March 2001, defendant was found guilty of the offense of statutory rape
in the state of Georgia. He was determined to have violated section 16-6-3 of the
Official Code of Georgia Annotated, which read as follows at the time of defendant’s
conviction under the Georgia statute:
(a) A person commits the offense of statutory rape when he or she engages in sexual intercourse with any person under the age of 16 years and not his or her spouse, provided that no conviction shall be had for this offense on the unsupported testimony of the victim.
(b) A person convicted of the offense of statutory rape shall be punished by imprisonment for not less than one nor more than 20 years; provided, however, that if the person so convicted is 21 years of age or older, such person shall be punished by imprisonment for not less than ten nor more than 20 years; provided, further, that if the victim is 14 or 15 years of age and the person so convicted is no more than three years older than the victim, such person shall be guilty of a misdemeanor.
Ga. Code Ann. § 16-6-3 (2001). Expanded into its component parts, the Georgia
statute results in a felony conviction if a defendant (1) engages in sexual intercourse
(2) with any person (3) under sixteen years of age (4) who is not the defendant’s
spouse, (5) unless the victim is fourteen or fifteen years of age and the defendant is
no more than three years older than the victim.4 Ga. Code Ann. § 16-6-3. If the victim
4 In the case at bar, defendant’s Georgia conviction was a felony offense. STATE V. GRAHAM
is fourteen or fifteen years old and the defendant is within three years in age of the
victim, then the defendant is guilty of a misdemeanor. Id.
¶5 Comparably, section 14-27.25 of the General Statutes of North Carolina stated
the following at the time that the trial court in defendant’s matter at issue conducted
the sentencing hearing in the present case on 13 December 2016:
(a) A defendant is guilty of a Class B1 felony if the defendant engages in vaginal intercourse with another person who is 15 years of age or younger and the defendant is at least 12 years old and at least six years older than the person, except when the defendant is lawfully married to the person.
(b) Unless the conduct is covered under some other provision of law providing greater punishment, a defendant is guilty of a Class C felony if the defendant engages in vaginal intercourse with another person who is 15 years of age or younger and the defendant is at least 12 years old and more than four but less than six years older than the person, except when the defendant is lawfully married to the person.
N.C.G.S. § 14-27.25 (2015). The elements of the North Carolina statute require the
State to prove that a defendant (1) engaged in vaginal intercourse (2) with another
person (3) fifteen years of age or younger (4) who is not the defendant’s spouse, (5)
provided that the defendant is at least twelve years of age at the time of the offense
and (6) at least six years older than the victim to constitute a Class B1 violation of
N.C.G.S. § 14-27.25(a), and less than six years older but more than four years older
than the victim to constitute a Class C violation of N.C.G.S. § 14-27.25(b). N.C.G.S. § STATE V. GRAHAM
14-27.25.
¶6 In calculating a defendant’s prior record level, a trial court must determine
whether the statute under which a defendant was convicted in another state is
substantially similar to a statute of a particular felony in North Carolina, which the
State must show by a preponderance of the evidence. Subsection 15A-1340.14(e)
states in pertinent part:
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 . . . . If the State proves by the preponderance of the evidence that an offense classified as . . . 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.
N.C.G.S. § 15A-1340.14(e) (2019) (emphasis added).
¶7 We adopt the correctness of determinations made by the Court of Appeals that
“whether an out-of-state offense is substantially similar to a North Carolina offense
is a question of law,” State v. Hanton, 175 N.C. App. 250, 254 (2006), and “the
requirement set forth in N.C. Gen. Stat. § 15A-1340.14(e) is not that the statutory
wording precisely match, but rather that the offense be ‘substantially similar,’ ” State
v. Sapp, 190 N.C. App. 698, 713 (2008). “We review questions of law de novo.” State
v. Khan, 366 N.C. 448, 453 (2013).
¶8 In the instant case, the trial court evaluated defendant’s conviction of statutory STATE V. GRAHAM
rape in the state of Georgia to be commensurate with a Class B1 felony in North
Carolina for sentencing purposes in the present case and hence, in assigning points
for prior convictions, accorded nine points to the Georgia conviction. We agree with
the determination of the lower appellate court, to which defendant appealed the trial
court outcomes, “that the trial court did not err in finding the two offenses
substantially similar” as Ga. Code Ann. § 16-6-3 outlaws statutory rape of a person
who is under the age of sixteen and N.C.G.S. § 14-27.25 prohibits statutory rape of a
person who is fifteen years of age or younger.5 State v. Graham, 270 N.C. App. 478,
496 (2020).
¶9 Each of the statutes includes an express reference to the act of physical
intercourse between the perpetrator of the offense and the victim; Georgia utilizes
the phrase “engages in sexual intercourse” and North Carolina employs the
terminology “engages in vaginal intercourse.” Both statutes employ nearly identical
language that the act of physical intercourse is conducted by the perpetrator with
another person and that the other person is not the offender’s spouse by virtue of a
lawful marriage. The variations between the two statutes arise in the areas of the
5 While the Court of Appeals recognized that “the State failed to meet its burden of
proof” due to the State’s failure to introduce a copy of the Georgia statute into evidence despite the provision of the foreign enactment to the trial court for review, nonetheless the lower appellate court determined that this omission constituted harmless error because “the record contains enough information for us to review the trial court’s determination that the Georgia and North Carolina offenses were substantially similar.” Graham, 270 N.C. App. at 491–92. Defendant does not challenge this determination by the Court of Appeals in the current appeal to us. STATE V. GRAHAM
age of the statutory rape victim—Georgia, “under the age of 16 years,” and North
Carolina, “15 years of age or younger”—and the age difference between the two
participants which impacts the perpetrator’s degree of punishment—Georgia, “[a]
person convicted of the offense of statutory rape shall be punished by imprisonment
for not less than one nor more than 20 years; provided, however, that if the person so
convicted is 21 years of age or older, such person shall be punished by imprisonment
for not less than ten nor more than 20 years; provided, further, that if the victim is
14 or 15 years of age and the person so convicted is no more than three years older
than the victim, such person shall be guilty of a misdemeanor,” Ga. Code Ann. § 16-
6-3, and North Carolina, “[a] defendant is guilty of a Class B1 felony if the defendant
engages in vaginal intercourse with another person who is 15 years of age or younger
and the defendant is at least 12 years old and at least six years older than the person
. . . [and] a defendant is guilty of a Class C felony if the defendant engages in vaginal
intercourse with another person who is 15 years of age or younger and the defendant
is at least 12 years older and more than four but less than six years older than the
person,” N.C.G.S. § 14-27.25.
¶ 10 Defendant argues that the Georgia statutory rape statute and the North
Carolina statutory rape statute are not substantially similar in addressing the
criminal offenses which they respectively prohibit in that there is no age difference
element in the Georgia law, because unlike the North Carolina law which identifies STATE V. GRAHAM
specific age differences in its felony classifications, defendant notes that “the Georgia
statute applies equally to all persons under the age of 16 years.” He expounds upon
this “lack of an age difference element in the Georgia statutory rape statute” by
offering hypothetical examples of sexual intercourse which he posits would constitute
the offense of statutory rape in Georgia but would not constitute the offense of
statutory rape in North Carolina. Defendant submits that in a comparison of a North
Carolina statute with another state’s statute in order to determine substantial
similarity between the two, if the difference between the two statutes renders the
other state’s law narrower or broader, “or if there are differences that work in both
directions, so that each statute includes conduct not covered by the other, then the
two statutes will not be substantially similar for purposes of the statute.”
Additionally, defendant asserts that the Georgia law under examination here is not
substantially similar to the North Carolina enactment to which it is being paralleled
because the Georgia law can be violated “by conduct that is only a Class C felony . . .
in North Carolina.” Defendant’s arguments are unpersuasive.
¶ 11 Defendant’s position conflates the requirement that statutes subject to
comparison be substantially similar to one another with his erroneous perception that
the two statutes must have identicalness to each other. As we previously noted in our
recognition of Sapp, 190 N.C. App. at 713, the statutory wording of the Georgia
provision and the North Carolina provision do not need to precisely match in order to STATE V. GRAHAM
be deemed to be substantially similar. Likewise, defendant’s stance that the Georgia
statute and the North Carolina statute cannot be considered to be substantially
similar because not every violation of the Georgia law would be tantamount to the
commission of a Class B1 felony under the comparative North Carolina law is
unfounded. In applying N.C.G.S. § 15A-1340.14(e) to the case sub judice, since the
Georgia offense of statutory rape “is substantially similar to an offense in North
Carolina that is classified as a Class I felony or higher”—here, a Class B1 felony
under N.C.G.S. § 14-27.25(a)—then defendant’s conviction of statutory rape in the
state of Georgia is treated as a Class B1 felony conviction for the assignment of the
appropriate number of prior record level points. Accordingly, the trial court in the
instant case correctly ascertained the figure of nine points for felony sentencing
purposes for defendant’s commission of the Georgia offense of statutory rape for
which defendant was convicted on 21 March 2001.
¶ 12 The dissent’s view suffers from the same foundational flaw that is exhibited by
defendant’s stance on the pivotal resolution of the question as to whether the statutes
at issue are substantially similar to one another. Although our learned colleagues
who would reach a different outcome in this case join defendant in confusing the legal
concept of “substantially similar” with the aspect of identicalness, the dissenters
further compound their unfortunate jumble of the two different measures by
expanding the scope of “substantially similar” toward a requirement of exactitude. STATE V. GRAHAM
Standing alone, neither word—“substantially” or “similar”—connotes literalness;
therefore, when these words are combined to create the legal term of art
“substantially similar,” this chosen phraseology reinforces the lack of a requirement
for the statutory language in one enactment to be the same as the statutory language
in another enactment in order for the two laws to be treated as “substantially
similar.” Yet, the dissent here—despite the obvious essential pertinent parallels
between the Georgia statute and the North Carolina statute—would withhold a
recognition that the two statutes are substantially similar because all of the same
provisions are not common to each of them. In this respect, although the dissent
professes that it understands the difference between “substantially similar” and
identicalness, nonetheless it appears that the dissent is so ensnared and engulfed by
a need to see a mirrored reflection mutually cast between the two statutes that the
dissent is compelled to promote this erroneously expansive approach.
¶ 13 With our agreement with the view of the Court of Appeals that the trial court
did not err in finding that the two offenses which the Georgia statute and the North
Carolina statute respectively proscribed were substantially similar, this outcome
comports with our decision in Sanders, 367 N.C. 716. In Sanders, this Court reviewed
the criminal offense of the state of Tennessee known as “domestic assault” and the
North Carolina offense of assault on a female. The Sanders defendant was found by
a jury to be guilty of robbery with a dangerous weapon, and the trial court examined STATE V. GRAHAM
the defendant’s prior convictions during the trial’s sentencing phase for the purpose
of establishing the defendant’s sentencing points. His prior convictions included the
Tennessee offense of domestic assault.
¶ 14 We noted in Sanders that the Court previously “ha[d] not addressed the
comparison of out-of-state offenses with North Carolina offenses for purposes of
determining substantial similarity under N.C.G.S. § 15A-1340.14(e).” 367 N.C. at
718. In this case of first impression, this Court held that “[d]etermination of whether
the 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.” Id. at 720 (alteration in original) (quoting State
v. Fortney, 201 N.C. App. 662, 671 (2010)). In devising a “comparison of the elements”
test, this Court expressly rejected the State’s argument in Sanders “to look beyond
the elements of the offenses and consider (1) the underlying facts of defendant’s out-
of-state conviction, and (2) whether, considering the legislative purpose of the
respective statutes defining the offenses, the North Carolina offense is ‘suitably
equivalent’ to the out-of-state offense.” Id. at 719. The Court’s implementation of its
announced “comparison of the elements” test compelled us to determine that the
Tennessee offense of domestic assault and the North Carolina offense of assault on a
female were not substantially similar, in that the disparity in the elements of the two
offenses regarding the genders of the parties involved and the status of their STATE V. GRAHAM
relationships rendered the Tennessee and North Carolina offenses legally
incomparable to one another for purposes of the determination of prior record level
points. Id. at 721.
¶ 15 In attempting to equate the statutes at issue in Sanders with the statutes
being evaluated in the present case, the dissent demonstrates its misunderstanding
of the application of Sanders and its misinterpretation of the term “substantially
similar.” The dissent sees no meaningful difference, for purposes of the determination
of “substantially similar” statutes, between 1) a one-year difference in the age of early
teenagers who are victims and 2) specified age difference delineations between
victims and offenders in the instant case, and 1) a total elimination of one gender
from the ability to offend and 2) the relationship status of victims and offenders in
Sanders. In fixating on the exactness of the terminology of the respective statutes
being compared in each of the two cases and corresponding potential outcomes which
might be yielded in specific fact pattern scenarios which could arise in each state, the
dissent promotes a widened view of “substantially similar” which would wrongly
extend this Court’s holding in Sanders to require identicalness between compared
statutes from different states and mandate identical outcomes between cases which
originate both in North Carolina and in the foreign state. Such requirements would
be inconsistent with our analysis in Sanders, the cited principles which we utilize
from the Court of Appeals cases of Hanton and Sapp, and the proper construction and STATE V. GRAHAM
application of the concept of “substantially similar.”
¶ 16 Despite the dissent’s concerns, we understand that it is unwise to endeavor to
articulate a “bright-line rule” to govern a determination of whether a North Carolina
statute is “substantially similar” to a statute from another state. While the dissent
would establish such a standard with a test of identicalness, this guide is erroneous
as well as incompatible with the concept of the identification of whether enactments
of law are “substantially similar.” There are so many iterations of so many similar
laws written in so many different ways, in North Carolina and in the forty-nine other
states in America, that the courts of this state must necessarily possess the ability to
operate with the flexibility that the phrase “substantially similar” inherently signifies
in determining whether statutes which are being compared share the operative
elements in the evaluation. While such an exercise is predictably challenging, we are
confident that the courts of this state have sufficient guidance and flexibility to
properly conduct the prescribed analysis of the statutes’ respective elements.
¶ 17 In applying the “comparison of the elements” test articulated in Sanders to the
present case, the harmonious determinations of the trial court and the Court of
Appeals here are consistent with our view that the Georgia statutory rape offense
prohibited by Ga. Code Ann. § 16-6-3 and the North Carolina statutory rape offense
forbidden by N.C.G.S. § 14-27.25(a) are substantially similar. Just as the State in
Sanders was unsuccessful in its assertion that a court’s determination of whether two STATE V. GRAHAM
statutes are “substantially similar” should be premised on considerations other than
the statute’s elements, defendant is unsuccessful here in his argument that is
contrary to the cited statutory and case law, while being incongruous with the
“comparison of the elements” test which supports the conclusion that the Georgia and
North Carolina offenses at issue are substantially similar for purposes of the
computation of defendant’s prior record level points for sentencing.
III. Conclusion
¶ 18 The Georgia statutory rape statute under which defendant was previously
convicted was substantially similar to North Carolina’s statutory rape statute so as
to authorize the trial court to regard defendant’s conviction of the offense of statutory
rape in the state of Georgia as a Class B1 felony offense for purposes of determining
defendant’s prior record level points for sentencing purposes. The trial court did not
err in this determination, and the Court of Appeals was correct in its subsequent
determination to affirm the trial court on this sole issue which we have addressed
upon discretionary review.
AFFIRMED. Justice Earls dissenting.
¶ 19 An out-of-state statute is not “substantially similar” to a North Carolina
statute within the meaning of N.C.G.S. § 15A-1340.14(e) if conduct that is proscribed
by the out-of-state statute is lawful under the North Carolina statute. That was the
substance of the elements-based approach to comparing criminal statutes we
articulated in State v. Sanders, 367 N.C. 716 (2014). Despite its protestations to the
contrary, the majority does not adhere to Sanders. The resulting decision fails to
“giv[e] fair and clear warning” to the public of the consequences of engaging in
criminal conduct, United States v. Lanier, 520 U.S. 259, 271 (1997), and construes
N.C.G.S. § 15A-1340.14(e) in a way that likely “fail[s] to meet constitutional
standards for definiteness and clarity,” Kolender v. Lawson, 461 U.S. 352, 361 (1983).
Because the majority’s analysis will not yield an “evenhanded, predictable, or
consistent” application of N.C.G.S. § 15A-1340.14(e), Johnson v. United States, 576
U.S. 591, 606 (2015), I respectfully dissent.
I. The majority’s decision is in tension with Sanders
¶ 20 In this case, the Georgia statute that the defendant, John D. Graham, violated
is not “substantially similar” to any Class B1 felony provided by North Carolina law.
This conclusion necessarily follows from any fair reading of Sanders.
¶ 21 In Sanders, this Court considered whether a Tennessee statute prohibiting
individuals from assaulting any “domestic abuse victim,” Tenn. Code Ann. § 39-13-
111(b) (2009), was “substantially similar” to the North Carolina statutory offense of STATE V. GRAHAM
Earls, J., dissenting
assaulting a female, N.C.G.S. § 14-33(c)(2) (2013). We held that it was not. Our
reasoning was straightforward. Under the Tennessee statute, an individual was
guilty of the specified offense if the person assaulted someone who fell within one of
six defined categories of “domestic abuse victims.” None of these categories contained
the requirement found in N.C.G.S. § 14-33(c)(2) that “the victim . . . be female [and]
the assailant . . . be male and of a certain age.” Sanders, 367 N.C. at 720. Thus,
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. 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.
Id. at 721. This Court unanimously agreed that because the defendant could have
been convicted under the Tennessee statute for conduct that would not have been
criminal under the North Carolina statute, the two statutes were not “substantially
similar.” Id.
¶ 22 Sanders yielded two principles which should dictate the outcome of this case.
The first principle is that “[d]etermination of whether the 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.” Id. at 720 (alteration in original) (quoting State v. Fortney, 201 N.C. App.
662, 671 (2010)). Accordingly, when ascertaining whether two statutes are
substantially similar, we look only to the statutory elements of the offense, not to the STATE V. GRAHAM
factual underpinnings of the defendant’s convictions.
¶ 23 The second principle is that an out-of-state criminal statute is not substantially
similar to a North Carolina criminal statute if a defendant could be convicted under
the out-of-state statute for acts which would not be criminal (or not criminal at the
same offense level) if committed in North Carolina. Adherence to this principle is
necessary to faithfully implement the elements-based approach. When all of the
conduct targeted by an out-of-state statute is encompassed within the North Carolina
statute it is being compared to, there is no doubt that the defendant has committed
an offense which would garner the same number of prior record level points had the
defendant engaged in the proscribed conduct in North Carolina. A defendant who
previously committed an act giving rise to an out-of-state criminal conviction will
never be sentenced more harshly than a similarly situated defendant who previously
committed the exact same act in North Carolina. Further, the facts underlying the
defendant’s out-of-state conviction are made irrelevant—whatever the defendant did
to earn his or her out-of-state conviction, his or her conduct would necessarily violate
the North Carolina statute it is being compared to.
¶ 24 The elements-based approach adopted in Sanders is not difficult to apply. That
is, or was, its primary virtue. In this case, applying Sanders’ correct interpretation of
N.C.G.S. § 15A-1340.14(e) dictates that Graham’s prior conviction in Georgia should
be treated as a Class I felony for purposes of sentencing. The Georgia statute Graham STATE V. GRAHAM
was convicted under, Ga. Code Ann. § 16-6-3 (2001), indisputably encompasses
conduct which is not a Class B1 felony in North Carolina. If an eighteen-year-old
individual has sexual intercourse with a fourteen-year-old in Georgia, that person
has violated Ga. Code Ann. § 16-6-3. If an eighteen-year-old individual has sexual
intercourse with a fourteen-year-old in North Carolina, that person has not violated
any statute creating a Class B1 felony offense in this state that existed at the time
Mr. Graham was convicted of his offense in Georgia. See N.C.G.S. § 14-27.7A(a) (2001)
(making it a Class B1 felony “if . . . defendant engages in vaginal intercourse or a
sexual act with another person who is 13, 14, or 15 years old and . . . defendant is at
least six years older than the person”); N.C.G.S. § 14-27.2A(a) (2001) (making it a
Class B1 felony “if the [defendant] is at least 18 years of age and engages in vaginal
intercourse with a victim who is a child under the age of 13 years”); N.C.G.S. § 14-
27.2(a) (2001) (making it a Class B1 felony “if the person engages in vaginal
intercourse . . . [w]ith a victim who is a child under the age of 13 years and the
defendant is at least 12 years old and is at least four years older than the victim”).
Under Sanders, we should stop there.
¶ 25 Whatever the majority says it is doing in extending beyond this point, it is not
applying Sanders. The point of the elements-based approach is not to engage in a
subjective, qualitative assessment of the substance of two criminal offenses. The point
is to enable a court to convert an out-of-state offense into an in-state offense for STATE V. GRAHAM
sentencing purposes, without needing to resort to an independent inquiry into the
factual circumstances of a defendant’s prior out-of-state conviction, and without
creating the risk that a defendant who previously engaged in criminal conduct in
another state will be sentenced differently than a similarly situated defendant who
engaged in the same conduct in North Carolina.
¶ 26 The fact that Ga. Code Ann. § 16-6-3 generally targets the same kind of conduct
as some North Carolina Class B1 felony offenses does not make the statute
“substantially similar” under N.C.G.S. § 15A-1340.14(e). It is improper to sentence a
defendant based upon our own intuition that most of the conduct prohibited by an
out-of-state statute would also be prohibited by an analogous North Carolina statute.
Cf. United States v. Davis, 139 S. Ct. 2319, 2326 (2019) (“[T]he imposition of criminal
punishment can’t be made to depend on a judge’s estimation of the degree of risk
posed by a crime’s imagined ‘ordinary case.’ ”). Squinting at two statutes and saying
“close enough” is not, in this context, good enough. The majority’s freewheeling
approach is an invitation to unchecked judicial discretion. As a result, some
defendants will inevitably be sentenced as if they had previously committed more
serious offenses than they actually committed.
¶ 27 The majority is also wrong to suggest that faithful application of the elements-
based approach reflects an “erroneous perception that the two statutes must have
identicalness to each other.” No one disputes that “substantially similar” does not STATE V. GRAHAM
mean “identical.” However, the rule articulated in Sanders in no way requires the
State to prove that an out-of-state statute is a carbon copy of the North Carolina
statute it is being compared to.
¶ 28 Two criminal statutes may contain the same elements yet utilize different
statutory language or be structured in different ways. For example, a hypothetical
out-of-state statute which makes it a crime to intentionally use physical force to harm
or threaten a female person, provided that the perpetrator is a male above the age of
majority, would be substantially similar to N.C.G.S. § 14-33(c)(2), which makes it a
crime for a “male person at least 18 years of age” to “[a]ssault[ ] a female.” The
statutes would not be identically worded, but they would be substantially similar
because both would require the State to prove the same elements in order to convict
a defendant.
¶ 29 Similarly, two criminal statutes may contain different elements but still be
substantially similar if all of the conduct proscribed by the out-of-state statute is
proscribed by the North Carolina statute it is being compared to. A hypothetical out-
of-state statute which makes it a crime to intentionally use physical force to harm or
threaten a female person under the age of 12, provided that the perpetrator is a male
at least twenty years old, would be substantially similar to N.C.G.S. § 14-33(c)(2),
even though the statutes would not contain exactly the same elements, because
anyone convicted under the out-of-state statute would necessarily have engaged in STATE V. GRAHAM
conduct proscribed by N.C.G.S. § 14-33(c)(2). Sanders gave full effect to every word
the legislature chose to include in N.C.G.S. § 15A-1340.14(e). We should in turn give
full effect to a unanimous decision interpreting the statute, rather than depart from
its well-reasoned principles.
II. The majority’s reasoning creates substantial uncertainty for lower courts and criminal defendants
¶ 30 The majority eschews the elements-based approach we established in Sanders,
but it is not entirely clear what has been offered as a replacement. As the majority
acknowledges, the Georgia and North Carolina statutes at issue in this case vary “in
the areas of the age of the statutory rape victim” and in “the age difference between
the two participants which impacts the perpetrator’s degree of punishment.” Further,
the majority does not dispute that an individual could engage in conduct which
“would constitute the offense of statutory rape in Georgia but would not constitute
the offense of statutory rape in North Carolina.” Nevertheless, the majority cursorily
dismisses Graham’s position that the statutes are not substantially similar as
“unfounded.” According to the majority, the State should prevail here because “[e]ach
of the statutes includes an express reference to the act of physical intercourse
between the perpetrator of the offense and the victim,” and the two statutes “employ
nearly identical language that the act of physical intercourse is conducted by the
perpetrator with another person and that the other person is not the offender’s spouse
by virtue of a lawful marriage.” STATE V. GRAHAM
¶ 31 Of course, nearly the same could be said for the statutes at issue in Sanders.
Both of those statutes criminalized the same kind of violent conduct directed against
statutorily defined category of victims. In Sanders, we held that two statutes were
not substantially similar because each targeted conduct directed towards distinct
classes of persons—“domestic abuse victims” under the Tennessee statute, “females”
under the North Carolina statute. Here, the majority holds that the two statutes are
substantially similar even though they target conduct directed towards distinct
classes of persons—anyone under the age of sixteen who is not the perpetrator’s
spouse under the Georgia statute, anyone under the age of fifteen who is not the
perpetrator’s spouse and who is at least six years younger than the perpetrator under
the North Carolina statute. The majority leaves lower courts, criminal defendants,
and the public guessing as to why the distinctions we found dispositive in Sanders
are irrelevant here.
¶ 32 The majority’s unwillingness to articulate a clear legal rule, or even a squishier
but still bounded multifactor test, is not only in tension with Sanders. It also creates
a significant risk of rendering N.C.G.S. § 15A-1340.14(e) unconstitutionally vague.
Under the majority’s interpretation of N.C.G.S. § 15A-1340.14(e), an individual with
a prior out-of-state conviction has no real way of knowing how they will be sentenced STATE V. GRAHAM
if they violate a North Carolina statute.1 If the elements of the out-of-state criminal
statute are in any way different than the elements of the North Carolina criminal
statute it is being compared to, an individual will be tasked with speculating as to
whether the elements are different enough to make the statutes not substantially
similar, without any meaningful guidance from this Court. The United States
Supreme Court has long held that precisely this kind of uncertainty is inconsistent
with due process rights. See, e.g., United States v. Batchelder, 442 U.S. 114, 123 (1979)
(“[V]ague sentencing provisions may pose constitutional questions if they do not state
with sufficient clarity the consequences of violating a given criminal statute.”).
¶ 33 As a practical matter, the majority’s amorphous reasoning will confer upon
trial courts increased discretion to determine whether two statutes are or are not
substantially similar based solely upon their own judgment. There are some matters
which should be left entirely to the discretion of a trial court, but determining how
many prior record level points should be assessed for an out-of-state conviction is not
one of them. The majority’s “grant of wholly standardless discretion to determine the
1 The majority claims that holding the two statutes at issue in this case to be not
substantially similar would ignore “the obvious essential pertinent parallels” between them. I acknowledge that the two statutes at issue here share some similarities, but the majority’s reasoning does not yield any principled way of discerning whether two statutes which share some similarities are or are not substantially similar within the meaning of N.C.G.S. § 15A- 1340.14(e). The majority does not explain which elements are “essential” and “pertinent” and which are not, nor does the majority explain how closely the elements must “parallel” each other for two statutes to be substantially similar. Even if the outcome the majority reaches could be justified under N.C.G.S. § 15A-1340.14(e), the reasoning the majority deploys fails to provide necessary guidance to lower courts and future litigants. STATE V. GRAHAM
severity of punishment appears inconsistent with due process.” Bankers Life & Cas.
Co. v. Crenshaw, 486 U.S. 71, 88 (1988); see also Johnson, 576 U.S. at 602 (“Invoking
so shapeless a provision to condemn someone to prison . . . does not comport with the
Constitution’s guarantee of due process.”). Sanders circumscribed this discretion by
requiring trial courts to conduct an objective analysis which yielded predictable
results. The majority’s new approach places N.C.G.S. § 15A-1340.14(e) on much
shakier constitutional ground.
¶ 34 What does remain clear after today is that a court is never permitted to engage
in an examination of the factual underpinnings of a defendant’s out-of-state
conviction. As the United States Supreme Court cautioned when it adopted
something akin to the elements-based approach in the context of interpreting the
Armed Career Criminal Act, 18 U.S.C. § 924, “the practical difficulties and potential
unfairness of a factual approach are daunting.” Taylor v. United States, 495 U.S. 575,
601 (1990). Practically, it is unclear what sources a court would be permitted to draw
from when attempting to determine whether the facts giving rise to the defendant’s
out-of-state conviction would have constituted an in-state criminal offense at the
same level. In at least some cases—especially those resolved by plea bargain—the
factual basis for the defendant’s out-of-state conviction might be impossible to
surmise. Legally, because the court’s inquiry into the factual basis for an out-of-state
conviction could lead to enhanced criminal punishment, a defendant’s Sixth STATE V. GRAHAM
Amendment rights would necessarily be implicated. See, e.g., Blakely v. Washington,
542 U.S. 296, 303 (2004) (explaining that a defendant’s Sixth Amendment rights are
violated if the court imposes an increased sentence based upon “facts supporting [a]
finding [that] were neither admitted by [the defendant] nor found by a jury”).
Accordingly, although the majority departs from the approach we endorsed in
Sanders in critical ways, nothing in today’s decision gives license to trial courts to
sentence criminal defendants based upon ad hoc inquiries into the circumstances of
their out-of-state convictions, a practice which would be akin to constitutionally
dubious “collateral trials.” Shepard v. United States, 544 U.S. 13, 23 (2005).
III. The majority’s interpretation of the phrase “substantially similar” is in tension with the structure and purpose of N.C.G.S. § 15A-1340.14(e)
¶ 35 At its core, this case involves a question of statutory interpretation: What did
the General Assembly intend when it chose the phrase “substantially similar” in
N.C.G.S. § 15A-1340.14(e)? The majority contends that the legislature did not intend
for courts to treat statutes as substantially similar only when “the statutory wording
precisely match[es].” True, but the structure of the provision at issue makes clear
that finding two statutes to be “substantially similar” is an exception to the baseline
rule, rather than the expected outcome every time a criminal defendant has a prior
out-of-state conviction. Subsection § 15A-1340.14(e) provides that “[e]xcept 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 STATE V. GRAHAM
offense occurred classifies the offense as a felony.” (Emphasis added.) The majority’s
reasoning threatens to make a finding of substantial similarity the default, in
contrast to clear legislative intent. See, e.g., State v. Hogan, 234 N.C. App. 218, 228
(2014) (“[I]f the State establishes that the defendant has an out-of-state felony
conviction, it is by default considered a Class I felony . . . .”).
¶ 36 Moreover, it is worth noting that the majority’s reasoning cuts both ways: It is
often a defendant who has been convicted of an offense categorized as a felony in
another state who invokes N.C.G.S. § 15A-1340.14(e) in an effort to prove that the
out-of-state felony offense is actually “substantially similar” to a North Carolina
misdemeanor. N.C.G.S. § 15A-1340.14(e) (“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.” (emphasis added)); see also Hogan, 234 N.C. App. at 229 (treating a New
Jersey conviction as a Class I felony because the “defendant failed to show that
[felony] third degree theft in New Jersey is substantially similar to a North Carolina
misdemeanor”). Thus, by removing any reliable and clear standard for a movant to
prove that two statutes are substantially similar, the majority’s reasoning guarantees
both that individuals whose conduct would not be felonious under North Carolina law
will more haphazardly be sentenced as if they had committed a felony and that STATE V. GRAHAM
individuals whose conduct would have been felonious under North Carolina law will
more haphazardly be sentenced as if they had committed misdemeanors. This
outcome stands in stark contrast to the design of a statute plainly intended to ensure
that criminal defendants in North Carolina with prior out-of-state convictions are
sentenced at parity with criminal defendants in North Carolina with prior in-state
convictions.
IV. Conclusion
¶ 37 Our Court does not seek to fashion clear legal rules (solely) because we are
lawyers who, by nature and by training, tend to be persnickety. First and foremost,
we strive for clarity because the force and legitimacy of law depends in no small part
on its comprehensibility and predictability. Ambiguous laws are susceptible to
unequal application under the guise of judicial discretion. The need for certainty is
especially pronounced when interpreting statutes imposing criminal sanctions.
See, e.g., Clark’s Charlotte, Inc. v. Hunter, 261 N.C. 222, 233 (1964) (explaining that
a statute may be unconstitutionally vague if it fails to “warn people of the criminal
consequences of certain conduct”); Johnson, 576 U.S. at 597 (holding a provision of 18
U.S.C. § 924 unconstitutional because it “leaves grave uncertainty about how to
estimate the risk posed by a crime”). The majority’s decision to trade Sanders’ clear
legal rule for a Delphic muddle disserves these constitutional interests and produces
an interpretation of a statute at odds with legislative intent. Therefore, I respectfully STATE V. GRAHAM
dissent.
Justice ERVIN joins in this dissenting opinion.