in the Court of Appeals 22 March 2017.
by defendant from judgments entered 29 February 2016 by Judge
R. Stuart Albright in Forsyth County No. 14 CRS 60237
Attorney General Joshua H. Stein, by Assistant Attorney
General Robert D. Croom, for the State.
Hollers & Atkinson, by Russell J. Hollers, III, for
Eugene Bryant ("defendant") appeals from judgments
entered upon jury verdicts finding him guilty of
second-degree sexual offense and second-degree rape. On
appeal, defendant only challenges the sentence imposed by the
trial court. Defendant contends that the court improperly
calculated his prior record level, due to its erroneous
conclusion that two of defendant's prior South Carolina
convictions were substantially similar to certain North
Carolina offenses. After careful review, we conclude that
defendant received a fair trial, free from prejudicial error.
State presented evidence that in the evening of 17 October
2014, defendant was a stranger to the victim and her
boyfriend when he joined them as they walked to their
apartment in downtown Winston-Salem, North Carolina. Once the
victim was alone, defendant engaged in sexual conduct with
her by force and against her will. On 18 October 2014,
officers with the Winston-Salem Police Department arrested
defendant for second-degree sexual offense and second-degree
rape. A Forsyth County grand jury indicted defendant for
these offenses on 1 June 2015. Trial commenced in Forsyth
County Criminal Superior Court on 22 February 2016. On 26
February 2016, the jury returned verdicts finding defendant
guilty. The jury also found, as an aggravating factor, that
defendant committed the offenses while on pretrial release on
the verdicts, the trial court excused the jury to begin
sentencing proceedings. The State submitted a copy of
defendant's Division of Criminal Information records
regarding his prior convictions in North Carolina, South
Carolina, and Florida. The State drafted a proposed prior
record level worksheet, and defendant stipulated to its
accuracy, "except for the class of any out-of-state
conviction higher than a class I felony[.]"
determining defendant's prior record level, the State
argued that two of defendant's prior South Carolina
convictions were substantially similar to certain North
Carolina offenses. First, the State asserted that
defendant's 1991 conviction for criminal sexual conduct
in the third degree was substantially similar to the North
Carolina Class C felonies of second-degree forcible rape and
second-degree forcible sex offense. Next, the State contended
that defendant's 1996 conviction for criminal sexual
conduct in the first degree was substantially similar to the
North Carolina Class B1 felonies of statutory rape of a child
by an adult and statutory sexual offense with a child by an
adult. Although defendant disagreed with the State regarding
substantial similarity, he stipulated that the 1991 and 1996
South Carolina convictions were both felony offenses.
reviewing the relevant statutes from both jurisdictions, the
trial court found that the State had proven by a
preponderance of the evidence that the respective offenses
were substantially similar. The court assigned defendant six
points for his 1991 conviction and nine points for his 1996
conviction. See N.C. Gen. Stat. §
15A-1340.14(b)(1a)-(2) (2015) (instructing the trial court to
assign a felony offender "6 points" "[f]or
each prior felony Class B2, C, or D conviction" and
"9 points" "[f]or each prior felony Class B1
conviction" that the court finds to have been proved).
on defendant's prior convictions, the trial court
determined that he was a prior record level VI offender with
27 points. See N.C. Gen. Stat. §
15A-1340.14(c)(6) (providing that offenders with "[a]t
least 18 points" are prior record level VI for felony
sentencing purposes). Based on defendant's prior record
level and the jury's finding of an aggravated factor, the
trial court sentenced defendant to two consecutive terms of
182 to 279 months in the custody of the North Carolina
Division of Adult Correction. Defendant appeals.
appeal, defendant contends that the trial court improperly
sentenced him at prior record level VI, due to the
court's erroneous conclusion that two of defendant's
prior South Carolina convictions were substantially similar
to North Carolina offenses. We disagree.
trial court's determination of a defendant's prior
record level is a conclusion of law, which this Court reviews
de novo on appeal." State v.
Threadgill, 227 N.C.App. 175, 178, 741 S.E.2d 677,
679-80, disc. review denied, 367 N.C. 223, 747
S.E.2d 538 (2013). A defendant need not object to the
calculation of his prior record level at sentencing in order
to preserve the issue for appellate review. Id. at
178, 741 S.E.2d at 679; N.C. Gen. Stat. §
felony offender's prior record level "is determined
by calculating the sum of the points assigned to each of the
offender's prior convictions" that the trial court
finds to have been proven at the sentencing hearing. N.C.
Gen. Stat. § 15A-1340.14(a). "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). The
State may prove the defendant's prior convictions by any
of the following methods:
(1) Stipulation of the parties.
(2) An original or copy of the court record of the prior
(3) A copy of records maintained by the Department of Public
Safety, the Division of Motor Vehicles, or of the
Administrative Office of the Courts.
(4) Any other method found by the court to be ...