State v. Hogan

NO. COA13-1284

NORTH CAROLINA COURT OF APPEALS

Filed: 3 June 2014

STATE OF NORTH CAROLINA

v. Johnston County

No. 12CRS055655

FRANCIS MARIUS HOGAN, JR.,

Defendant.

Appeal by defendant from Judgment entered 12 March 2013 and

Order entered 26 February 2013 by Judge Thomas H. Lock in

Superior Court, Johnston County. Heard in the Court of Appeals

20 March 2014.

Attorney General Roy A. Cooper III, by Special Deputy

Attorney General Lars F. Nance, for the State.

Michele Goldman, for defendant-appellant.

STROUD, Judge.

Francis Hogan, Jr. (“defendant”) appeals from the judgment

entered 12 March 2013 after he pled guilty to assault by

strangulation and from the order entered 26 February 2013

denying in part his motion to suppress statements he made to

police. We affirm the trial court’s order denying defendant’s

motion to suppress in part and find no error in sentencing.

I. Background

-2-

Defendant was indicted for assault on a female and assault

by strangulation on 3 December 2012. The indictments alleged

that defendant had assaulted Karen Teixeira by pushing her

against a wall and by putting his hands around her neck and

choking her. Defendant moved to suppress statements he made to

police when they responded to the home that he and Ms. Teixeira

shared.

On 16 September 2012, Deputy Reliford and Deputy Carroll of

the Johnston County Sheriff’s Office responded to a call

reporting a domestic disturbance at a residence in Princeton.

After they entered the house, they found defendant hiding in a

closet which also contained “an engine and various engine parts”

and the deputies were concerned that these objects may contain a

hidden weapon. When defendant came out of the closet, Deputy

Reliford put handcuffs on him and explained that he was doing

this for “officer safety reasons.” Defendant began acting

“aggressively” toward Ms. Teixeira and her son and “telling them

that he was going to have them removed from the home.” Deputy

Reliford walked defendant out to the back deck to help him calm

down and to be able to talk to him “outside the presence of

defendant’s girlfriend, the victim.” While they were on the back

deck, Deputy Carroll left to respond to another call, thus

-3-

leaving Deputy Reliford alone with defendant, the victim, and

her son. On the back deck, Deputy Reliford began asking

defendant questions about what had happened. Deputy Reliford did

not advise defendant of his Miranda rights. Defendant made

incriminating statements in response to Deputy Reliford’s

questions.

Deputy Reliford then asked Ms. Teixeira to come out to the

back porch. He observed bruising on her neck and asked how she

got the bruises. She stated that defendant put his hand around

her neck and picked her up. She also stated that he had pushed

her into a wall. Defendant then interjected that he put his hand

around Ms. Teixeira’s neck and squeezed and that he had pushed

her into a wall. Deputy Reliford then placed defendant under

arrest.

The trial court granted the motion in part and denied it in

part. It concluded that defendant was in custody during his

interactions with Deputy Reliford. It therefore suppressed the

statements defendant made in response to Deputy Reliford’s

direct questions. However, it concluded that defendant’s second

statement was “spontaneous,” and not made in response to any

questions posed to him by Deputy Reliford. It further concluded

that asking Ms. Teixeira what happened in front of defendant was

-4-

not the functional equivalent of interrogation. Therefore, the

trial court denied defendant’s motion to suppress those

statements. It entered a written order finding the facts as

summarized above on 26 February 2013.

Defendant entered an Alford guilty plea to assault by

strangulation on 6 March 2013, but specifically reserved his

right to appeal the partial denial of his motion to suppress.

The State dismissed the assault on a female charge. On 12 March

2013, the trial court entered judgment sentencing defendant to a

mitigated term of 9-20 months imprisonment, suspended for 30

months of supervised probation. That same day, defendant filed

written notice of appeal from both the judgment and the order

denying his motion to suppress in part.

II. Motion to Suppress

Defendant argues that the trial court erred in denying his

motion to suppress his second statement to police because he was

subjected to custodial interrogation without the benefit of

Miranda warnings. He further contends that several of the trial

court’s findings of fact are unsupported by competent evidence.

A. Standard of Review

It is well-established that the standard of

review in evaluating a trial court’s ruling

on a motion to suppress is that the trial

court’s findings of fact are conclusive on

-5-

appeal if supported by competent evidence,

even if the evidence is conflicting. . . .

[However,] the trial court’s determination

of whether an interrogation is conducted

while a person is in custody . . . involves

reaching a conclusion of law, which is fully

reviewable on appeal.

State v. Crudup, 157 N.C. App. 657, 659, 580 S.E.2d 21, 23

(2003) (citations, quotation marks, and brackets omitted).

Thus, we must first determine whether there is competent

evidence to support the challenged findings of fact. We will

then review de novo the trial court’s conclusion of law as to

whether defendant was subject to custodial interrogation. See

State v. Biber, 365 N.C. 162, 168, 712 S.E.2d 874, 878 (2011)

(“Conclusions of law are reviewed de novo and are subject to

full review. Under a de novo review, the court considers the

matter anew and freely substitutes its own judgment for that of

the lower tribunal.”(citations and quotation marks omitted)).

B. Findings of Fact

We first address defendant’s challenge to the findings of

fact. The trial court found that:

1. The defendant is charged with Assault

on a Female and Assault by Strangulation.

2. On September 16, 2012, Deputy R.L.

Reliford of the Johnston County Sheriff’s

Office responded to a domestic disturbance

at [a residence] in Princeton.

-6-

3. The residence was the home of defendant

and Karen Tiexeira [sic].

4. Upon entering the home, Deputies Paige

Carroll and Reliford found defendant hiding

in a closet and detained the defendant by

putting him in handcuffs when he came out of

the closet.

5. The closet in which defendant was

hiding contained an engine and various

engine parts. The deputies were concerned

these objects may have contained a hidden

weapon.

6. As the defendant stepped out of the

closet, Deputy Reliford informed the

defendant to put his hands up and then

placed him in handcuffs. Deputy Reliford

testified that he told the defendant that he

was doing this for officer safety reasons.

7. During the time the defendant had been

handcuffed, the defendant was acting

aggressively toward his girlfriend and her

son by telling them he was going to have

them removed from the home.

8. In an effort to calm the defendant

down, Deputy Reliford walked the defendant

to the back deck to sit down so that he

could speak with him about the incident

outside the presence of the defendant’s

girlfriend, the victim.

9. At this time, Deputy Carroll left the

residence in order to respond to another

call.

10. After sitting down on the back deck,

the defendant made incriminating statements

regarding the domestic disturbance to Deputy

Reliford in response to questioning by

-7-

Deputy Reliford. Prior to this point, Deputy

Reliford had not Mirandized the defendant.

11. Deputy Reliford asked the victim, Karen

Tiexara [sic], to come out to the back deck

where he observed red marks, swelling and

bruising around her neck.

12. Deputy Reliford asked the victim how

she got the marks on her neck and she

responded by saying that Francis [defendant]

put his hand around her neck several times

and picked her up while he had his hand

around her neck.

13. The victim also stated that the

defendant had pushed her into a wall.

14. The defendant then spontaneously stated

that he put his hand around . . . [his

girlfriend’s] neck and squeezed and that he

pushed her into the wall.

15. Neither the victim nor Deputy Reliford

were speaking to the defendant when he

spontaneously uttered this statement.

16. Deputy Reliford then placed the

defendant under arrest for Assault on a

Female and Assault by Strangulation.

Defendant contends that finding 9 is unsupported by

competent evidence because there was no evidence that Deputy

Carroll left before defendant’s girlfriend was asked to step

outside. He also argues that findings 14 and 15 contain

conclusions of law in that they characterize his statement as

spontaneous. Deputy Carroll testified at the suppression hearing

that she remained in the house a short time after defendant had

-8-

been brought outside before receiving another call and leaving.

Deputy Reliford testified that he brought defendant out to the

back deck to speak with him and that after speaking about what

happened, he opened the door and asked Deputy Carroll to send

Ms. Teixeira out. Although the testimony of the officers was

somewhat contradictory as to the timing of when Deputy Carroll

left, it was proper for the trial court to resolve these

evidentiary conflicts. State v. Jones, 161 N.C. App. 615, 623,

589 S.E.2d 374, 378 (2003) (“It is the trial court’s duty to

resolve any conflicts and contradictions that may exist in the

evidence.” (citation and quotation mark omitted)), app.

dismissed and disc. rev. denied, 358 N.C. 379, 597 S.E.2d 770

(2004). Moreover, the exact timing of when Deputy Carroll left

is not material to the legal issues. It is clear that Deputy

Carroll left the residence while Deputy Reliford was still

trying to investigate what had happened, leaving just one

officer with the responsibility of dealing with both defendant

and Ms. Teixeira.1

Defendant also contends that the trial court’s

1

Deputy Carroll also testified that normally two officers

responded to calls for domestic disturbances for officer safety

reasons. Deputy Reliford explained that he had previously

“taken someone into custody and actually had to fight the other

party. So they can get dangerous.”

-9-

characterization of his statements as “spontaneous” were

actually conclusions of law, not findings of fact. We agree. The

issue of whether defendant’s statements were spontaneous or in

response to police interrogation is the central legal issue in

question, as discussed below. See State v. Hipps, 348 N.C. 377,

395, 501 S.E.2d 625, 636 (1998), cert. denied, 525 U.S. 1180,

143 L.Ed. 2d 114 (1999). Therefore, we will consider all of the

trial court’s findings regarding the spontaneity of defendant’s

statements as conclusions of law.

C. Interrogation or Its Functional Equivalent

Next, we must determine whether the trial court correctly

concluded that the questioning of defendant’s girlfriend in his

presence did not constitute the functional equivalent of

questioning and that defendant’s statements were spontaneous.

“The Miranda warnings and waiver of counsel are required

only when an individual is being subjected to custodial

interrogation. ‘Custodial interrogation’ means questioning

initiated by law enforcement officers after a person has been

taken into custody or otherwise deprived of his freedom of

action in any significant way.” State v. Kincaid, 147 N.C. App.

94, 101, 555 S.E.2d 294, 300 (2001) (citation and quotation

marks omitted).

-10-

The trial court concluded that defendant was in custody

during the entirety of his interactions with police. This

determination has not been challenged by either party. The trial

court concluded, however, that his statements to police after

his girlfriend was brought outside were not in response to

police interrogation. Specifically, the trial court concluded

that defendant’s statements were spontaneous and not in response

to police questioning or its functional equivalent.

[T]he Miranda safeguards come into play

whenever a person in custody is subjected to

either express questioning or its functional

equivalent. That is to say, the term

“interrogation” under Miranda refers not

only to express questioning, but also to any

words or actions on the part of the police

(other than those normally attendant to

arrest and custody) that the police should

know are reasonably likely to elicit an

incriminating response from the suspect. The

latter portion of this definition focuses

primarily upon the perceptions of the

suspect, rather than the intent of the

police. This focus reflects the fact that

the Miranda safeguards were designed to vest

a suspect in custody with an added measure

of protection against coercive police

practices, without regard to objective proof

of the underlying intent of the police. A

practice that the police should know is

reasonably likely to evoke an incriminating

response from a suspect thus amounts to

interrogation. But, since the police surely

cannot be held accountable for the

unforeseeable results of their words or

actions, the definition of interrogation can

extend only to words or actions on the part

-11-

of police officers that they should have

known were reasonably likely to elicit an

incriminating response.

Rhode Island v. Innis, 446 U.S. 291, 300-02, 64 L.Ed. 2d 297,

307-08 (1980) (footnotes omitted). “Volunteered statements of

any kind are not barred by the Fifth Amendment.” State v. James,

215 N.C. App. 588, 593, 715 S.E.2d 884, 888 (2011) (citation,

quotation marks, and brackets omitted).

Defendant argues that asking his girlfriend what happened

in front of him is akin to the coercive techniques discussed in

Innis and Miranda.

The questioned practices [in Miranda]

included the use of lineups in which a

coached witness would pick the defendant as

the perpetrator, the so-called ‘reverse

line-up’ in which a defendant would be

identified by coached witnesses as the

perpetrator of a fictitious crime, and a

variety of psychological ploys, such as to

posit the guilt of the subject, to minimize

the moral seriousness of the offense, and to

cast blame on the victim or on society.

Arizona v. Mauro, 481 U.S. 520, 526, 95 L.Ed. 2d 458, 466 (1987)

(citations, quotation marks, ellipses, and brackets omitted).

The Miranda court was concerned with the coercive nature of

these practices. In re D.A.C., ___ N.C. App. ___, ___, 741

S.E.2d 378, 383 (2013) (noting that “the sole concern of the

-12-

Fifth Amendment, on which Miranda was based, is governmental

coercion” (citation, quotation marks, and brackets omitted)).

Deputy Reliford’s questioning of defendant’s girlfriend was

entirely unlike the coercive interrogation with which Miranda

and its progeny are concerned. See State v. Meadows, 272 N.C.

327, 337, 158 S.E.2d 638, 644-45 (1968) (“The four cases decided

by Miranda shared salient features, among which was

incommunicado interrogation of individuals in a police-dominated

atmosphere.” (citation and quotation marks omitted)). The deputy

was investigating an ongoing situation, attempting to figure out

whether a crime was even committed. He asked defendant’s

girlfriend how she got the marks on her neck. She had not

already incriminated defendant. The deputy could not have known

what her response could be—she could have inculpated or

exculpated defendant. In addition, since Deputy Carroll had to

leave to respond to another call, only one officer was left to

deal with both defendant and the victim. Although this case is a

close one, we conclude that the deputy’s question to Ms.

Teixeira “did not constitute the functional equivalent of

questioning because the officer’s [question] did not call for a

response from defendant and therefore cannot be deemed as

reasonably likely to elicit an incriminating response from

-13-

defendant.” State v. Gantt, 161 N.C. App. 265, 269, 588 S.E.2d

893, 896 (2003), disc. rev. denied, 358 N.C. 157, 593 S.E.2d 83

(2004); see also, Meadows, 272 N.C. at 337, 158 S.E.2d at 645

(“A general investigation by police officers, when called to the

scene of a shooting, automobile collision, or other occurrence

calling for police investigation, including the questioning of

those present, is a far cry from the ‘in-custody interrogation’

condemned in Miranda.”).

This case is distinguishable from State v. Fuller, 270 N.C.

710, 155 S.E.2d 286 (1967), cited by defendant. In Fuller, the

police were interviewing the witness to an assault in the

presence of the defendant. Fuller, 270 N.C. at 713, 155 S.E.2d

at 288. The officers warned defendant that anything he said or

did not say in response to the witness’ statement could be used

against him. Id. at 713-14, 155 S.E.2d at 288. The witness said

that the defendant had used a baseball bat to assault the

victim. Id. at 713, 155 S.E.2d at 288. The officers then asked

the defendant if he had anything to say in response. Id. The

defendant stated, “Yes, I hit the man, but I did not think I hit

him that hard.” Id. The Supreme Court held that the statement

was inadmissible because the police had incorrectly informed him

-14-

that his silence could be used against him. Id. at 715, 155

S.E.2d at 289. The Court explained,

To make a prisoner listen to an accuser with

the admonition that if he talks or doesn’t

talk—to be damned if he does, and to be

damned if he doesn’t—is to put him in an

impossible position. It violates the rights

of the captive audience, which constitutes

reversible error.

Id.

This case is distinguishable from Fuller in two important

respects. First, and perhaps most importantly, the police in

Fuller directly asked the defendant to respond to the witness’

statement. Here, by contrast, Deputy Reliford did not ask

defendant to say anything in response to Ms. Teixeira’s

statement. Second, the officers in Fuller warned the defendant

that any response or his silence could be used against him,

which “put him in an impossible position.” Id. There was no such

improper warning here. Therefore, we conclude that Fuller does

not require suppression of defendant’s statement.

For the foregoing reasons, we hold that the trial court

correctly concluded that defendant’s statements in response to

those of Ms. Teixiera were spontaneous and not the result of

custodial interrogation. The deputy’s question of Ms. Teixiera

was not the functional equivalent of questioning defendant.

-15-

Therefore, we affirm the trial court’s order denying defendant’s

motion to suppress these statements.

III. Sentencing

Defendant next argues that the trial court erred in

calculating his prior record level because it counted a New

Jersey theft conviction as a Class I felony when it is not

considered a felony under New Jersey law, and, in any event,

should have been classified as a misdemeanor because it is

substantially similar to a North Carolina misdemeanor.

Defendant was convicted on 9 February 1995 of fourth degree

theft in Morris County, New Jersey. On 21 April 1995, he was

convicted of third degree theft and fourth degree theft, also in

Morris County, New Jersey. The trial court found that the 9

February 1995 conviction was substantially similar to

misdemeanor theft in North Carolina and classified it as a Class

1 misdemeanor. The trial court found that the third degree theft

conviction, by contrast, was a felony in New Jersey and

classified it as a Class I felony.

Defendant argues that because New Jersey does not use the

term “felony” to classify its offenses, the trial court could

not properly determine that third degree theft is a felony for

sentencing purposes. It is true that the New Jersey criminal

-16-

code does not use the term “felony.” State v. Smith, 181 A.2d

761, 767 (N.J. 1962), cert. denied, 374 U.S. 835, 10 L.Ed. 2d

1055 (1963). Instead, all crimes are classified as a crime of

the first, second, third, or fourth degree. N.J. Stat. Ann. §

2C:43-1 (2011). Other, more minor offenses are classified as

“disorderly person offense[s].” See N.J. Stat. Ann. § 2C:43-8

(2011). Theft may be classified as a second, third, or fourth

degree offense, or as a disorderly person offense, depending on

the nature of the crime and the value of the property taken.

N.J. Stat. Ann. § 2C:20-2 (2011). Defendant was convicted of a

third degree theft offense.

Under New Jersey law, a court may sentence a defendant

convicted of a third degree offense to a specific term of

imprisonment between three and five years. N.J. Stat. Ann. §

2C:43-6 (2011). A crime of the fourth degree is punishable by up

to 18 months imprisonment. Id. The New Jersey Supreme Court

has held that crimes “punishable by imprisonment for more than a

year in state prison” are comparable to common law felonies.

State v. Doyle, 200 A.2d 606, 614 (N.J. 1964). New Jersey courts

have clearly recognized that their third-degree crimes are

felonies by a different name. See United States v. Brown, 937

F.2d 68, 70 (2d Cir. 1991) (“[U]nder New Jersey law, offenses

-17-

punishable by more than one year in prison constitute common-law

felonies.”); Kaplowitz v. State Farm Mut. Auto Ins. Co., 493

A.2d 637, 640 (N.J. Super. Ct. Law Div. 1985) (“[O]ffenses that

are punishable by more than one year in state prison should be

treated as common law felonies.”).

We recognize that there are several cases in which this

Court has decided that New Jersey convictions cannot count as

“felonies” for the purpose of habitual felon charges. See, e.g.,

State v. Lindsey, 118 N.C. App. 549, 455 S.E.2d 909 (1995),

State v. Carpenter, 155 N.C. App. 35, 573 S.E.2d 668 (2002),

disc. rev. dismissed and cert. denied, 356 N.C. 681, 577 S.E.2d

896 (2003), and State v. Moncree, 188 N.C. App. 221, 655 S.E.2d

464 (2008). None of these cases analyzes the meaning of

“misdemeanor” or “high misdemeanor” under New Jersey law.2 They

simply conclude that because the crimes were not “certified” as

felonies under New Jersey law or called “felonies” they could

not be considered felonies for purposes of the habitual felon

2

New Jersey used to classify some serious crimes as misdemeanors

or “high misdemeanors.” See, e.g., State v. Sisler, 827 A.2d

274, 276 (N.J. 2003) (noting that production of child

pornography was classified as a “high misdemeanor”). Under the

modern statutes, a “high misdemeanor” is equivalent to a crime

of the third degree for sentencing, and to a crime of the first,

second, or third degree for other purposes. N.J. Stat. Ann. §

2C:43-1(b); N.J. Stat. Ann. § 2C:1-4 (2011). A “misdemeanor” is

equivalent to a crime of the fourth degree for sentencing. N.J.

Stat. Ann. § 2C:43-1(a).

-18-

statute. Applied to the sentencing context, the rule in these

cases would suggest that the State can never use a New Jersey

conviction to establish prior record points without proving that

the offense is substantially similar to a North Carolina

offense. There is no suggestion in the sentencing statutes that

the Legislature intended to single out New Jersey convictions

for such unfavorable treatment.

Even if we were to assume that we must apply these cases to

N.C. Gen. Stat. § 15A-1340.14, this case is distinguishable in

that the State presented a “certification” that third degree

theft is considered a felony in New Jersey. In Lindsey, the

first case in which we suggested that a New Jersey offense could

not be considered a felony because it was not labeled as such,

we hinted that the State could nevertheless show it was a felony

by providing certification from some official that it was a

felony. Lindsey, 118 N.C. App. at 553, 455 S.E.2d at 912.

Here, the State introduced a criminal history record from

the “NLETS” system, containing defendant’s “New Jersey Criminal

History Detailed Record” (original in all caps). The printout

contained a statement that “This record is certified as a true

copy of the criminal history record information on file for the

assigned state identification number” (original in all caps).

-19-

The record listed defendant’s theft convictions as “felony

conviction[s]” (original in all caps). Therefore, even if the

fact that New Jersey considers third degree offenses to be the

same as common law felonies is alone insufficient, we hold that

this certification is sufficient under Lindsey. Moreover, given

our review of New Jersey law above, this certification appears

to accurately reflect the law as understood by the courts of

that state.

Finally, defendant contends that even if third degree theft

is a felony in New Jersey, it is substantially similar to

misdemeanor larceny in North Carolina and the trial court erred

in failing to classify it as a misdemeanor. We disagree.

The principal error in defendant’s argument is that he

confuses what he is required to show to prove that an out-of-

state felony is substantially similar to a North Carolina

misdemeanor. Under N.C. Gen. Stat. § 15A-1340.14(e), if the

State establishes that the defendant has an out-of-state felony

conviction, it is by default considered a Class I felony,

regardless of whether it is substantially similar to a North

Carolina felony. State v. Hinton, 196 N.C. App. 750, 755, 675

S.E.2d 672, 675 (2009). The State is not required to show any

substantial similarity in that context. Id. However, the

-20-

defendant may still show that the out-of-state felony is

substantially similar to a North Carolina misdemeanor. N.C. Gen.

Stat. § 15A-1340.14(e). The defendant bears the burden of

showing substantial similarity in that case. State v. Crawford,

___ N.C. App. ___, ___, 737 S.E.2d 768, 770, disc. rev. denied,

___ N.C. ___, 743 S.E.2d 196 (2013).

Here, defendant failed to show that third degree theft in

New Jersey is substantially similar to a North Carolina

misdemeanor. Essentially, he argues that because third degree

theft is not substantially similar to felony larceny in North

Carolina, it must be substantially similar to misdemeanor

larceny. But that analysis flips the burden of proof. It is

defendant who must show that third degree theft is substantially

similar to misdemeanor larceny; the State is not required to

show that it is more similar to felony larceny than misdemeanor

larceny.

New Jersey defines “theft” as the “involuntary transfer of

property; the actor appropriates property of the victim without

his consent or with consent obtained by fraud or coercion.”

State v. Talley, 466 A.2d 78, 81 (N.J. 1983) (citation and

quotation marks omitted). A person is guilty of third degree

theft in New Jersey if

-21-

(a) The amount involved exceeds $500.00 but

is less than $75,000.00;

(b) The property stolen is a firearm, motor

vehicle, vessel, boat, horse, domestic

companion animal or airplane;

(c) The property stolen is a controlled

dangerous substance or controlled substance

analog as defined in N.J.S.2C:35-2 and the

amount involved is less than $75,000.00 or

is undetermined and the quantity is one

kilogram or less;

(d) It is from the person of the victim;

(e) It is in breach of an obligation by a

person in his capacity as a fiduciary and

the amount involved is less than $50,000.00;

(f) It is by threat not amounting to

extortion;

(g) It is of a public record, writing or

instrument kept, filed or deposited

according to law with or in the keeping of

any public office or public servant;

(h) The property stolen is a person’s

benefits under federal or State law, or from

any other source, which the Department of

Human Services or an agency acting on its

behalf has budgeted for the person’s health

care and the amount involved is less than

$75,000.00;

(i) The property stolen is any real or

personal property related to, necessary for,

or derived from research, regardless of

value, including, but not limited to, any

sample, specimens and components thereof,

research subject, including any warm-blooded

or cold-blooded animals being used for

research or intended for use in research,

-22-

supplies, records, data or test results,

prototypes or equipment, as well as any

proprietary information or other type of

information related to research;

(j) The property stolen is a New Jersey

Prescription Blank as referred to in

R.S.45:14-14;

(k) The property stolen consists of an

access device or a defaced access device; or

(l) The property stolen consists of

anhydrous ammonia and the actor intends it

to be used to manufacture methamphetamine.

N.J. Stat. Ann. § 2C:20-2(3).

In North Carolina, a person commits misdemeanor larceny if

he takes and carries away the property of another valued less

than $1,000 with the intent to permanently deprive the rightful

owner of it, unless one of the circumstances in N.C. Gen. Stat.

§ 14-72(b) applies, in which case it is a felony regardless of

value. N.C. Gen. Stat. § 14-72 (2013); State v. Sheppard, ___

N.C. App. ___, ___, 744 S.E.2d 149, 151 (2013). Some of the

circumstances of felony larceny are the same both in North

Carolina and New Jersey. For instance, in both states, larceny

from the person and larceny of a firearm constitute a more

serious offense, regardless of value. See N.C. Gen. Stat. § 14-

72(b)(1), (4); N.J. Stat. Ann. § 2C:20-2 (b)(2)(b), (d). As

defendant correctly points out, there are many more ways to

-23-

commit third degree theft in New Jersey than felony larceny in

North Carolina. Yet, that is not the relevant question.

Defendant was required to prove that third degree theft is

substantially similar to misdemeanor larceny, not that it is

dissimilar from felony larceny. Given the disparity in elements

between our definition of misdemeanor larceny and New Jersey’s

definition of third degree theft, defendant cannot show that

they are substantially similar.

We hold that the trial court did not err in concluding that

third degree theft is not substantially similar to misdemeanor

larceny. There are many elements of third degree theft not found

in misdemeanor larceny. Several of these possible elements, such

as theft from a person, would also make the larceny a felony in

North Carolina. Therefore, the New Jersey crime of third degree

theft is not substantially similar to North Carolina’s

misdemeanor larceny. In sum, there was no error in defendant’s

sentencing.

IV. Conclusion

For the foregoing reasons, we affirm the trial court’s

order denying defendant’s motion to suppress in part and find no

error in sentencing.

AFFIRMED; NO ERROR.

-24-

Judges HUNTER, JR., Robert N. and DILLON concur.