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State v. Bryant

Court of Appeals of North Carolina

August 15, 2017

STATE OF NORTH CAROLINA
v.
ROY EUGENE BRYANT

          Heard in the Court of Appeals 22 March 2017.

         Appeal by defendant from judgments entered 29 February 2016 by Judge R. Stuart Albright in Forsyth County No. 14 CRS 60237 Superior Court.

          Attorney General Joshua H. Stein, by Assistant Attorney General Robert D. Croom, for the State.

          Hollers & Atkinson, by Russell J. Hollers, III, for defendant-appellant.

          CALABRIA, JUDGE.

         Roy 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.

         I. Background

         The 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 another charge.

         Following 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[.]"

         In 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.

         After 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).

         Based 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.

         II. Analysis

         On 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.

         "The 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. § 15A-1446(d)(5), (18).

         A 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 conviction.
(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 ...

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