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  "name_abbreviation": "State v. Prush",
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    "judges": [
      "Chief Judge MARTIN and Judge STEELMAN concur."
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    "parties": [
      "STATE OF NORTH CAROLINA v. STEVEN CHARLES PRUSH"
    ],
    "opinions": [
      {
        "text": "STEPHENS, Judge.\nDefendant was sentenced to two consecutive terms of 433 to 529 months in prison after a jury convicted him of two counts of first-degree sexual offense, N.C. Gen. Stat. \u00a7 14-27.4(a) (2005), two counts of indecent liberties with a minor, N.C. Gen. Stat. \u00a7 14-202.1 (2005), and one count of disseminating obscenity, N.C. Gen. Stat. \u00a7 14-190.1 (2005). On appeal, Defendant argues that the trial court erred in (1) denying his motion to dismiss one of the first-degree sexual offense charges for insufficient evidence and (2) sentencing him at prior record level V instead of prior record level IV. For the reasons stated herein, we find no error in Defendant\u2019s conviction but remand for resentencing.\nFACTS\nThe State\u2019s evidence at trial tended to show that \u201cDiane\u201d lived with her two sons, \u201cCharlie\u201d and \u201cChad,\u201d a few houses down from Defendant. On 17 May 2005, Diane discovered pornographic magazines behind a shed in her backyard. Diane asked Charlie what he knew about the magazines, and Charlie told her that he had been given them by Defendant. At that time, Charlie was six years old and Defendant was in his forties. Diane called the police, and a Winston-Salem Police Department officer responded to her call. Charlie told the police officer that Defendant had \u201ctouched\u201d him. Thereupon, the Winston-Salem Police Department commenced an investigation.\nDetective K.D. Israel was assigned to investigate the case. As part of his investigation, Detective Israel arranged to have Charlie interviewed by Susan Vaughn, a forensic interviewer. During an interview with Ms. Vaughn on 5 July 2005, Charlie told Ms. Vaughn that Defendant had committed two acts of fellatio on him: once in Defendant\u2019s garage and once behind the shed in Charlie\u2019s backyard. On 7 July 2005, Detective Israel confronted Defendant with Charlie\u2019s allegations, but Defendant denied ever inappropriately touching Charlie. On 8 July 2005, Detective Israel interviewed Charlie, and Charlie described two times that Defendant had performed fellatio on him: once in Defendant\u2019s garage and once behind the shed. Defendant was subsequently arrested, indicted, and convicted.\nSUFFICIENCY OF THE EVIDENCE\nDefendant first argues that the trial court erred in denying his motion to dismiss the charge of first-degree sexual offense in case number 05 CRS 58325 because there was insufficient evidence \u201cthat a second sexual act of fellatio occurred beyond the one [Defendant] was convicted for in case number 05 CRS 58324.\u201d We disagree.\nOur standard of review of a trial court\u2019s ruling on a motion to dismiss for insufficient evidence \u201c \u2018is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant\u2019s being the perpetrator of such offense.\u2019 \u201d State v. Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002) (quoting State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980)). \u201cSubstantial evidence is that amount of relevant evidence necessary to persuade a rational juror to accept a conclusion.\u201d Scott, 356 N.C. at 597, 573 S.E.2d at 869 (citing State v. Mann, 355 N.C. 294, 560 S.E.2d 776, cert. denied, 537 U.S. 1005, 154 L. Ed. 2d 403 (2002)). The evidence must be viewed \u201c \u2018in the light most favorable to the State, giving the State the benefit of all reasonable inferences.\u2019 \u201d Scott, 356 N.C. at 596, 573 S.E.2d at 869. (citation omitted). \u201c \u2018Contradictions and discrepancies do not warrant dismissal of the case but are for the jury to resolve.\u2019 \u201d Id.\nUnder North Carolina law, a person is guilty of a first-degree sexual offense if the person engages in a \u201csexual act\u201d with a child under the age of thirteen, the person being at least twelve years old and at least four years older than the child. N.C. Gen. Stat. \u00a7 14-27.4(a)(l) (2005); see also State v. Griffin, 319 N.C. 429, 355 S.E.2d 474 (1987) (listing the elements of first-degree sexual offense). \u201cSexual act\u201d is defined as cunnilingus, fellatio, analingus, and anal intercourse, as well as any penetration, however slight, by any object into the genital or anal opening of the child\u2019s body. N.C. Gen. Stat. \u00a7 14-27.1(4) (2005).\nIn this case, it is undisputed that at the time of the events in question Charlie was under the age of thirteen and Defendant was at least twelve years old and at least four years older than Charlie. It is similarly undisputed that Defendant performed one act of fellatio on Charlie. Defendant\u2019s argument is that there was insufficient evidence of a second act of fellatio.\nAt trial, Charlie, then age seven, first testified that Defendant put his mouth on Charlie\u2019s penis five times: three times in the woods, once in Defendant\u2019s garage, and once behind Charlie\u2019s shed:\nQ. Okay. We\u2019re talking about if anybody \u2014 if anybody ever touched you on your private parts, okay?\nA. Okay.\nQ. Who touched you on your private part?\nA. Steve.\nQ. And when he touched you, where were you?\nA. Woods first.\nQ. Okay. And was there a second time?\nA. Three times.\nQ. So, can we do it one at a time?\nA. Yes.\nQ. So, the first time [Defendant] touched you, where did it happen?\nA. Woods.\nQ. And . . . when you were in the woods, is that the only thing\u2014 well, what did \u2014 did [Defendant] touch your front part with?\nA. His hand.\nQ. And was that the only thing he touched your front part with? A. No.\nQ. What other part of [Defendant] touched your body? Do you remember your body parts?\nA. Yes.\nQ. So \u2014 you said he used another part to touch you?\nA. Uh-huh.\nQ. What part was it?\nA. His mouth.\nQ. And what did he touch on your body with his mouth?\nA. My front part.\nQ. What else happened in the woods?\nA. He touched me on my bottom.\nQ. So, did all this happen'on the first time?\nA. No.\nQ. When did all of this happen?\nA. I forgot.\nQ. All right. Did \u2014 you said something happened three times?\nA. Yes.\nQ. Was it the first time this happened?\nA. It happened five times.\nQ. Okay.\nA. It happened three times in the woods and it happened \u2014 it happened one time in the garage and one time in the back of my shed.\nWhen asked more particularly about the incident in the garage, however, Charlie contradicted his earlier testimony that Defendant put his mouth on Charlie\u2019s penis on that occasion:\nQ. And on \u2014 on the \u2014 in the \u2014 in the garage, did all three things happen that you just said?\nA. No.\nQ. What happened in the garage?\nA. He felt my bottom.\nQ. And anything else happen?\nA. He touched my front part.\nQ. Okay. And what else happened?\nA. That\u2019s all.\nLikewise, when asked more particularly about the incident behind the shed, Charlie contradicted his earlier testimony that Defendant put his mouth on Charlie\u2019s penis on that occasion:\nQ. Okay. What happened in the shed \u2014 I mean \u2014 behind the shed?\nA. He touched me in my \u2014 in my \u2014 he touched me at my front part.\nQ. With what?\nA. His hands.\nQ. Anything else?\nA. He rubbed my bottom.\nQ. And anything else?\nA. That\u2019s all.\nFinally, Charlie testified as follows:\nQ. Now, how many times did [Defendant] put his mouth on your private part?\nA. One.\nQ. And where did that take place?\nA. In the woods.\nQ. And how many times did he touch you with his hand on your private part?\nA. Three.\nQ. And how many times did he touch your bottom with his private \u2014 I mean \u2014 with his hand?\nA. Three.\nQ. Okay. But he only touched you with your [sic] mouth at \u2014 in the woods?\nA. Yes.\nCorroborating Charlie\u2019s initial testimony, Detective Israel testified, without defense objection, that Charlie told him Defendant had twice performed fellatio on him: once in Defendant\u2019s garage and once behind Charlie\u2019s shed. Again without objection, the State published Ms. Vaughn\u2019s videotaped interview with Charlie to the jury in which Charlie stated that Defendant twice performed fellatio on him: once in Defendant\u2019s garage and once behind Charlie\u2019s shed. Such evidence corroborates Charlie\u2019s initial testimony that Defendant performed fellatio on him more than one time. Viewing the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences, and recognizing that contradictions and discrepancies do not warrant dismissal of the case but are for the jury to resolve, we conclude that the State presented substantial evidence that more than one sexual act occurred. Defendant\u2019s argument is overruled.\nSENTENCING\nIn his final argument, Defendant contends that the trial court erred in sentencing him at prior record level V instead of prior record level IV despite Defendant\u2019s express stipulation to his prior record level:\n[PROSECUTOR]: ... Your Honor, for purposes of sentencing, the defendant is a record Level V.\nMr. Ferguson, [defense counsel,] do you wish to stipulate to his level of being a Level V?\nMR. FERGUSON: I will stipulate.\nDefendant so stipulated after the State introduced Defendant\u2019s prior record level worksheet which assigned fourteen points for prior convictions and one point pursuant to N.C. Gen. Stat. \u00a7 15A-1340.14(b)(6) (2005) because \u201call the elements of the present offense are included in any prior offense].]\u201d Defendant does not now dispute that the trial court correctly assigned fourteen points for prior convictions. See State v. Alexander, 359 N.C. 824, 616 S.E.2d 914 (2005) (finding trial court\u2019s imposition of felony sentence proper where defense counsel stipulated to defendant\u2019s prior record level which was calculated based solely on the existence of one prior conviction). Defendant argues that since the crime of first-degree sexual offense \u201ccontains an element not found in any of [Defendant\u2019s] prior convictions,\u201d the trial court erred in assigning the fifteenth point which, pursuant to N.C. Gen. Stat. \u00a7 15A-1340.14(c), increased his prior record level from IV to V. We agree.\n\u201cIf an offender is convicted of more than one offense at the same time, the court may consolidate the offenses for judgment and impose a single judgment for the consolidated offenses.\u201d N.C. Gen. Stat. \u00a7 15A-1340.15(b) (2005). Such a judgment \u201cshall contain a sentence disposition specified for the class of offense and prior record level of the most serious offense[.]\u201d Id. (Emphasis added.)\n\u201c[T]he court shall determine the prior record level for the offender pursuant to G.S. 15A-1340.14.\u201d N.C. Gen. Stat. \u00a7 15A-1340.13(b) (2005). \u201cThe prior record level of a felony offender is determined by calculating the sum of the points assigned to each of the offender\u2019s prior convictions . . . .\u201d N.C. Gen. Stat. \u00a7 15A-1340.14(a) (2005).\nPoints are assigned as follows:\n(3) For each prior felony Class E, F, or G conviction, 4 points.\n(5) For each prior misdemeanor conviction as defined in this subsection, 1 point. ...\n(6) If all the elements of the present offense are included in any prior offense for which the offender was convicted, whether or not the prior offense or offenses were used in determining prior record level, 1 point.\nN.C. Gen. Stat. \u00a7 15A-1340.14(b) (2005). \u201c[I]f an offender is convicted of more than one offense in a single superior court during one calendar week, only the conviction for the offense with the highest point total is used\u201d to calculate a prior record level. N.C. Gen. Stat. \u00a7 15A-1340.14(d) (2005). \u201cThe State bears the burden of proving, by a preponderance of the evidence, that a prior conviction exists . . . .\u201d N.C. Gen. Stat. \u00a7 15A-1340(f) (2005). Prior convictions shall be proved by, inter alia, \u201c[stipulation of the parties.\u201d N.C. Gen. Stat. \u00a7 15A-1340(f)(l) (2005).\nIn this case, the trial court consolidated the convictions in case number 05 CRS 58324 (first-degree sexual offense, indecent liberties with a child, and disseminating obscenity) and the convictions in case number 05 CRS 58325 (first-degree sexual offense and indecent liberties with a child) for sentencing. The \u201cmost serious\u201d offense in each consolidated judgment is first-degree sexual offense, a Class B1 felony. N.C. Gen. Stat. \u00a7 14-27.4(b) (2005). Pursuant to N.C. Gen. Stat. \u00a7 15A-1340.15(b), then, the trial court was required to sentence Defendant according to his prior record level for that offense.\nUnder the circumstances of this case, the elements of first-degree sexual offense are (1) the defendant engaged in a sexual act, (2) the victim was at the time of the act twelve years old or less, and (3) the defendant was at that time at least twelve years old and four or more years older than the victim. N.C. Gen. Stat. \u00a7 14-27.4(a)(l); Griffin, 319 N.C. 429, 355 S.E.2d 474. The prior offenses for which Defendant was assigned points included two misdemeanors and the Class F felonies of indecent liberties with a minor on 11 July 1983, failure to register as a sex offender and felonious restraint on 13 May 1988, and indecent liberties with a minor on 13 July 1988. None of Defendant\u2019s prior convictions include all of the elements of first-degree sexual offense. See, e.g., State v. Fuller, 166 N.C. App. 548, 603 S.E.2d 569 (2004) (listing elements of indecent liberties with a minor). Thus, the trial court erred in adding the fifteenth point.\nIn State v. Hanton, 175 N.C. App. 250, 623 S.E.2d 600 (2006), this Court held that the determination of whether the elements of an out-of-state criminal offense were substantially similar to the elements of a .North Carolina criminal offense \u201c \u2018does not require the resolution of disputed facts.\u2019 \u201d Id. at 254, 623 S.E.2d at 604 (quoting State v. Van Buren, 98 P.3d 1235, 1241 (Wash. Ct. App. 2004)). Rather, the Court held, such a determination \u201cinvolves statutory interpretation, which is a question of law.\u201d Id. at 255, 623 S.E.2d at 604 (citing Dare County Board of Educ. v. Sakaria, 127 N.C. App. 585, 492 S.E.2d 369 (1997)). Similarly, the comparison of the elements of two North Carolina criminal offenses does not require the resolution of .disputed facts, but is a matter of law. \u201c \u2018Stipulations as to questions of law are generally held invalid and ineffective, and not binding upon the courts, either trial or appellate ....\u2019\u201d Id. at 253, 623 S.E.2d at 603 (quoting State v. Prevette, 39 N.C. App. 470, 472, 250 S.E.2d 682, 683, appeal dismissed and disc. review denied, 297 N.C. 179, 254 S.E.2d 38 (1979)). Thus, Defendant\u2019s stipulation is ineffective in determining whether \u201call the elements of the present offense are included in any prior offense.\u201d This case is remanded for resentencing.\nNO ERROR IN TRIAL; REMANDED FOR RESENTENCING.\nChief Judge MARTIN and Judge STEELMAN concur.\n. Pseudonyms will be used throughout the opinion to protect the child\u2019s privacy.\n. The State\u2019s contention that Detective Israel\u2019s testimony and the videotaped interview with Ms. Vaughn constitute substantive evidence is without merit. In his instructions to the jury, the trial judge properly limited this evidence to corroborative purposes.",
        "type": "majority",
        "author": "STEPHENS, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Roy Cooper, by Assistant Attorney General David Gordon, for the State.",
      "Jarvis John Edgerton, IV, for Defendant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. STEVEN CHARLES PRUSH\nNo. COA06-1213\n(Filed 21 August 2007)\n1. Sexual Offenses\u2014 first-degree sexual offenses \u2014 two acts of fellatio \u2014 sufficiency of evidence\nThe State presented sufficient evidence to support defendant\u2019s conviction on two counts of first-degree sexual offense against a child where the child testified at trial that defendant performed two acts of fellatio on him, although the child also gave inconsistent testimony as to whether a second act of fellatio occurred; and corroborating evidence from a detective and a forensic interviewer was presented that the child had stated that defendant performed fellatio on him once in defendant\u2019s garage and once behind a shed.\n2. Sentencing\u2014 calculation of prior record level \u2014 elements of prior convictions \u2014 stipulation\nThe trial court erred in calculating defendant\u2019s prior record level where defendant was sentenced for several sexual offenses against a child, including first-degree sexual offense; none of defendant\u2019s prior convictions included all of the elements of first-degree sexual offense; and the judge erred by adding an additional point pursuant to N.C.G.S. \u00a7 15A-1340(b)(6), which raised his prior record level. Defendant\u2019s stipulation to that prior record level is ineffective because comparison of the elements of criminal offenses does not require the resolution of disputed facts.\nAppeal by Defendant from judgments entered 22 March 2006 by Judge Edwin G. Wilson, Jr., in Forsyth County Superior Court. Heard in the Court of Appeals 23 April 2007.\nAttorney General Roy Cooper, by Assistant Attorney General David Gordon, for the State.\nJarvis John Edgerton, IV, for Defendant."
  },
  "file_name": "0472-01",
  "first_page_order": 504,
  "last_page_order": 512
}
