{ "id": 4357716, "name": "STATE OF NORTH CAROLINA v. RICHARD COLT ROLLINS", "name_abbreviation": "State v. Rollins", "decision_date": "2012-07-17", "docket_number": "No. COA11-1437", "first_page": "572", "last_page": "582", "citations": [ { "type": "official", "cite": "221 N.C. App. 572" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "467 U.S. 39", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6193857 ], "opinion_index": -1, "case_paths": [ "/us/467/0039-01" ] }, { "cite": "647 S.E.2d 473", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638959 ], "year": 2007, "pin_cites": [ { "page": "474", "parenthetical": "noting that this Court applies a harmless error analysis to prior level record points whereby the amount of deducted points must affect the defendant's record level to require a remand for a new sentencing hearing" } ], "opinion_index": 0, "case_paths": [ "/se2d/647/0473-01" ] }, { "cite": "656 S.E.2d 287", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640337 ], "year": 2008, "pin_cites": [ { "page": "293", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/656/0287-01" ] }, { "cite": "661 S.E.2d 46", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641082 ], "year": 2008, "pin_cites": [ { "page": "50" } ], "opinion_index": 0, "case_paths": [ "/se2d/661/0046-01" ] }, { "cite": "623 S.E.2d 780", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634743 ], "year": 2005, "pin_cites": [ { "page": "782" } ], "opinion_index": 0, "case_paths": [ "/se2d/623/0780-01" ] }, { "cite": "636 S.E.2d 267", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636993 ], "year": 2006, "pin_cites": [ { "page": "275" } ], "opinion_index": 0, "case_paths": [ "/se2d/636/0267-01" ] }, { "cite": "653 S.E.2d 892", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639999 ], "year": 2007, "pin_cites": [ { "page": "897" } ], "opinion_index": 0, "case_paths": [ "/se2d/653/0892-01" ] }, { "cite": "185 N.C. App. 314", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8209635 ], "year": 2007, "pin_cites": [ { "page": "315-16", "parenthetical": "noting that this Court applies a harmless error analysis to prior level record points whereby the amount of deducted points must affect the defendant's record level to require a remand for a new sentencing hearing" } ], "opinion_index": 0, "case_paths": [ "/nc-app/185/0314-01" ] }, { "cite": "704 S.E.2d 275", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "opinion_index": 0 }, { "cite": "364 N.C. 600", "category": "reporters:state", "reporter": "N.C.", "year": 2010, "opinion_index": 0 }, { "cite": "691 S.E.2d 108", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "122" } ], "opinion_index": 0 }, { "cite": "203 N.C. App. 151", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4175468 ], "pin_cites": [ { "page": "168" } ], "opinion_index": 0, "case_paths": [ "/nc-app/203/0151-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-54", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2011, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "Fla. Stat. \u00a7 810.02", "category": "laws:leg_statute", "reporter": "Fla. Stat.", "year": 2011, "pin_cites": [ { "page": "(b)(1)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-51", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2011, "opinion_index": 0 }, { "cite": "556 S.E.2d 324", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "328" } ], "opinion_index": 0 }, { "cite": "147 N.C. App. 409", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9379788 ], "year": 2001, "pin_cites": [ { "page": "413" } ], "opinion_index": 0, "case_paths": [ "/nc-app/147/0409-01" ] }, { "cite": "188 N.C. App. 416", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4155633 ], "year": 2008, "pin_cites": [ { "page": "426", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/188/0416-01" ] }, { "cite": "691 S.E.2d 414", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "opinion_index": 0 }, { "cite": "681 S.E.2d 801", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "806" } ], "opinion_index": 0 }, { "cite": "198 N.C. App. 631", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4168838 ], "year": 2009, "pin_cites": [ { "page": "638" } ], "opinion_index": 0, "case_paths": [ "/nc-app/198/0631-01" ] }, { "cite": "190 N.C. App. 570", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4158744 ], "year": 2008, "pin_cites": [ { "page": "576" } ], "opinion_index": 0, "case_paths": [ "/nc-app/190/0570-01" ] }, { "cite": "749 F.Supp. 43", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 7382329 ], "year": 1990, "pin_cites": [ { "page": "46", "parenthetical": "\"All that [the trial judge] was required to do was to articulate those findings in terms specific enough to permit a reviewing court to determine the basis for the order.\"" } ], "opinion_index": 0, "case_paths": [ "/f-supp/749/0043-01" ] }, { "cite": "438 N.W.2d 798", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 10605387 ], "year": 1989, "pin_cites": [ { "page": "802", "parenthetical": "\"Waller requires that a hearing be conducted and that findings be made before a trial is closed to the public.\"" } ], "opinion_index": 0, "case_paths": [ "/nw2d/438/0798-01" ] }, { "cite": "933 A.2d 370", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 8343030 ], "year": 2007, "pin_cites": [ { "page": "379-80", "parenthetical": "\"In this case, the court's general reference to the child's vulnerability is not sufficient to meet the fourth Waller requirement, nor does it show that the trial court adequately considered other important interests before ordering the courtroom closed.\"" } ], "opinion_index": 0, "case_paths": [ "/a2d/933/0370-01" ] }, { "cite": "32 F.3d 369", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 1844545 ], "year": 1994, "pin_cites": [ { "page": "371", "parenthetical": "\"In this circuit, specific findings by the district court are not necessary if we can glean sufficient support for a partial temporary closure from the record.\"" } ], "opinion_index": 0, "case_paths": [ "/f3d/32/0369-01" ] }, { "cite": "68 F.3d 94", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 7411839 ], "year": 1995, "pin_cites": [ { "page": "99", "parenthetical": "admonishing the trial court for failing to make detailed findings of fact, but holding that the reason behind the closure could be \"inferred]\" from the record" } ], "opinion_index": 0, "case_paths": [ "/f3d/68/0094-01" ] }, { "cite": "977 F.2d 74", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10511956 ], "year": 1992, "pin_cites": [ { "page": "77-78" } ], "opinion_index": 0, "case_paths": [ "/f2d/977/0074-01" ] }, { "cite": "494 N.W.2d 252", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 10610414 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "259", "parenthetical": "\"The record does not disclose evidence or findings of a showing that closure was necessary to protect the witness or ensure fairness in the trial. On the record before us we cannot say that there has been compliance with the requirements set out in Waller[.}\"'" }, { "page": "260" } ], "opinion_index": 0, "case_paths": [ "/nw2d/494/0252-01" ] }, { "cite": "738 A.2d 871", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 169915 ], "year": 1999, "pin_cites": [ { "page": "878" } ], "opinion_index": 0, "case_paths": [ "/md/356/0207-01" ] }, { "cite": "175 N.C. App. 214", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8351216 ], "year": 2005, "pin_cites": [ { "page": "218" } ], "opinion_index": 0, "case_paths": [ "/nc-app/175/0214-01" ] }, { "cite": "449 S.E.2d 752", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "337 N.C. 804", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2550240, 2549860, 2550122, 2552337, 2551092 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/337/0804-04", "/nc/337/0804-01", "/nc/337/0804-02", "/nc/337/0804-05", "/nc/337/0804-03" ] }, { "cite": "445 S.E.2d 622", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1994, "pin_cites": [ { "page": "625" }, { "page": "625" }, { "page": "625" } ], "opinion_index": 0 }, { "cite": "115 N.C. App. 520", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12135137 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "525" }, { "page": "525-26" } ], "opinion_index": 0, "case_paths": [ "/nc-app/115/0520-01" ] }, { "cite": "571 S.E.2d 209", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "356 N.C. 311", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511395, 1511155, 1511413, 1511356, 1511614 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/356/0311-04", "/nc/356/0311-03", "/nc/356/0311-02", "/nc/356/0311-05", "/nc/356/0311-01" ] }, { "cite": "566 S.E.2d 814", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "816-17" } ], "opinion_index": 0 }, { "cite": "152 N.C. App. 150", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9249133 ], "year": 2002, "pin_cites": [ { "page": "154" } ], "opinion_index": 0, "case_paths": [ "/nc-app/152/0150-01" ] }, { "cite": "180 N.C. App. 86", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8239579 ], "year": 2006, "pin_cites": [ { "page": "98" } ], "opinion_index": 0, "case_paths": [ "/nc-app/180/0086-01" ] }, { "cite": "72 F.3d 421", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 7413480 ], "year": 1995, "pin_cites": [ { "page": "433", "parenthetical": "\"Although there is a strong presumption in favor of openness, the right to an open trial is not absolute. The trial judge may impose reasonable limitations on access to a trial in the interest of the fair administration of justice.\"" } ], "opinion_index": 0, "case_paths": [ "/f3d/72/0421-01" ] }, { "cite": "236 F.3d 149", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11162039 ], "weight": 7, "year": 2000, "pin_cites": [ { "page": "165" }, { "page": "155" }, { "page": "171" }, { "page": "172", "parenthetical": "emphasis added" }, { "page": "174" }, { "page": "171" }, { "page": "174" } ], "opinion_index": 0, "case_paths": [ "/f3d/236/0149-01" ] }, { "cite": "92 L. Ed. 682", "category": "reporters:federal", "reporter": "L. Ed.", "weight": 3, "year": 1948, "pin_cites": [ { "page": "692" } ], "opinion_index": 0 }, { "cite": "333 U.S. 257", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6157870 ], "year": 1948, "pin_cites": [ { "page": "270" } ], "opinion_index": 0, "case_paths": [ "/us/333/0257-01" ] }, { "cite": "187 N.C. App. 593", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8375393 ], "year": 2007, "pin_cites": [ { "page": "599" } ], "opinion_index": 0, "case_paths": [ "/nc-app/187/0593-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 15-166", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "year": 2011, "opinion_index": 0 }, { "cite": "467 U.S. 39", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6193857 ], "weight": 20, "pin_cites": [ { "page": "46" }, { "page": "38" }, { "page": "45" }, { "page": "38" }, { "page": "45" }, { "page": "38" }, { "page": "45" }, { "page": "38" }, { "page": "48" }, { "page": "39" }, { "page": "48" }, { "page": "40" }, { "page": "50" }, { "page": "41" } ], "opinion_index": 0, "case_paths": [ "/us/467/0039-01" ] } ], "analysis": { "cardinality": 1087, "char_count": 25234, "ocr_confidence": 0.741, "pagerank": { "raw": 5.9213860555422775e-08, "percentile": 0.369828318176079 }, "sha256": "8a50d39a844ae1caa54a1d2da7e22390cb943069cd14da6d03abde4168e7fd3b", "simhash": "1:dbaef51e766a8f74", "word_count": 4218 }, "last_updated": "2023-07-14T16:36:11.101860+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges STROUD and ERVIN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. RICHARD COLT ROLLINS" ], "opinions": [ { "text": "HUNTER, Robert C., Judge.\nDefendant Richard Colt Rollins appeals from judgments entered 28 September 2010 after a jury found him guilty of non-felonious breaking or entering, first degree kidnapping, second degree rape, and resisting a public officer. Defendant argues that his Sixth Amendment right to a public trial was violated when the trial court temporarily closed the courtroom during the victim\u2019s testimony and that the trial court erred in determining that a prior out-of-state conviction was sufficiently similar to the corresponding North Carolina offense when determining defendant\u2019s prior felony record level. After careful review, we reverse and remand.\nBackground\nThe State\u2019s evidence tended to establish the following facts: M.S. and defendant met in June 2007 at a Seventh Day Adventist \u201ccamp meeting.\u201d Defendant had recently been released from prison. The two began dating and engaging in a sexual relationship. In November 2007, the relationship began to deteriorate. M.S. told defendant that she no longer wanted to have a sexual relationship outside of marriage and that she wanted defendant to do more to reintegrate himself into the community. M.S. and defendant continued to see each other, but defendant began having angry outbursts, after which he would become remorseful and apologize to M.S. On one occasion, defendant threatened to kill M.S., and on another occasion, M.S. feared that defendant would rape her during one of his angry outbursts.\nOn 3 July 2008, M.S. arrived at her home and found defendant working on a drainage ditch in her yard. She forcefully told defendant to leave and not return to her home. On the evening of 4 July 2008, M.S. went on a long walk, and, when she returned to her home, she saw defendant\u2019s car parked in her yard. M.S. went into the house without encountering defendant in the yard; however, a short while later, defendant called to her from the back of her house. M.S. asked defendant to leave, and he became agitated. M.S. tried to leave the house, but defendant prevented her from doing so. An argument ensued, during which time M.S.\u2019s friend, Tom Sitler, called. Mr. Sitler could tell that M.S. was upset, and he asked her if defendant was there and whether she wanted him to call the police. M.S. responded yes to both inquiries. Mr. Sitler called a mutual friend, Paulette Love, who in turn called the police.\nM.S. testified that before the police arrived, defendant ordered her to undress, ripped her shirt, pulled her into the back bedroom, and raped her. When the police arrived, they heard a woman crying and saying \u201c \u2018don\u2019t hurt me.\u2019 \u201d The officers knocked on the glass storm door, and defendant approached the door wearing his boxers. Defendant then closed the exterior door and engaged the deadbolt. The deputies knocked down the two doors and took defendant into custody. Defendant claimed that the sexual encounter that took place on 4 July 2008 was consensual and that he bolted the door when he saw the officers because neither he nor M.S. had called the police.\nDefendant was charged with burglary, first degree kidnapping, second degree rape, and resisting a public officer. On 28 September 2008, defendant was convicted of non-felonious breaking or entering, first degree kidnapping, second degree rape, and resisting a public officer. The trial court arrested judgment on the first degree kidnapping conviction and entered judgment on second degree kidnapping, sentencing defendant to 48-67 months imprisonment. The charges of second degree rape, non-felonious breaking or entering, and resisting an officer were consolidated and defendant was sentenced to 156-197 months imprisonment. Defendant gave oral notice of appeal.\nDiscussion\nI.\nDefendant argues that the trial court violated his Sixth Amendment right to a public trial when the trial judge temporarily closed the courtroom while M.S. testified concerning the alleged rape perpetrated by defendant without engaging in the four-part test set forth in Waller v. Georgia, 467 U.S. 39, 81 L. Ed. 2d 31 (1984). We agree.\nPrior to M.S.\u2019s testimony, the prosecutor requested that the courtroom be closed, citing N.C. Gen. Stat. \u00a7 15-166 (2011), which provides:\nIn the trial of cases for rape or sex offense or attempt to commit rape or attempt to commit a sex offense, the trial judge may, during the taking of the testimony of the prosecutrix, exclude from the courtroom all persons except the officers of the court, the defendant and those engaged in the trial of the case.\nThe prosecutor stated the following rationale for closure:\nBecause of the delicacy of the issues regarding rape, force, everything else which is in regards to rape and sex offenses, that\u2019s why this type of classification of offenses are included with a specific statute such as this. . . . I would urge the [c]ourt to close the courtroom during [M.S.\u2019s] testimony as it presents an extreme emotional hardship on her to have to testify period. Even in front of the Defendant it presents a very difficult \u2014 difficulty for her. Obviously, she knows .she has to do it and [the] confrontation clause certainly wouldn\u2019t allow for the Defendant not to be present, but for other spectators, other participants in the trial, it\u2019s simply not necessary that they be in the courtroom during her testimony.\nThe prosecution asked that one of M.S.\u2019s supporters be allowed to remain in the courtroom, but the trial court stated that if defendant was not permitted to have a supporter remain in the courtroom, then neither was M.S. The prosecution then moved to remove all spectators, including M.S.\u2019s supporters. The following exchange occurred between the trial court and defense counsel:\n[Defense counsel]: Well, we object. Court should be open. We\u2019ve heard testimony already from officers who have talked to her, we\u2019ve heard testimony from her friends who\u2019ve talked to her. Nothing \u2014 we haven\u2019t heard anything that\u2019s strange or need to be really embarrassing. But I have no case law.\n[Trial court]: I don\u2019t know that there is any case law, because it\u2019s basically \u2014 as I understand it... a discretionary call.... I don\u2019t know that... a [c]ourt would abuse it\u2019s [sic] discretion in either way by ruling either way in this regard.\nThe trial court subsequently agreed \u201cto exclude all unnecessary parties from the courtroom during the testimony of the alleged victim . . . .\u201d\nAs a preliminary matter, the State claims that defendant has not preserved his constitutional argument for appeal. We disagree. Defendant objected based on his contention that \u201c[c]ourt should be open.\u201d We hold that it was apparent from the context that defendant was objecting to the prosecution\u2019s attempt to close the trial in violation of defendant\u2019s constitutional right to a public trial. See N.C.R. App. P. 10(a)(1) (2012) (stating that an objection is preserved so long as the specific ground for the objection is \u201capparent from the context\u201d). Defendant\u2019s argument is, therefore, preserved for appellate review.\nWe now turn to whether the trial court erred in closing the courtroom during M.S.\u2019s testimony. This Court reviews alleged constitutional violations de novo. State v. Tate, 187 N.C. App. 593, 599, 653 S.E.2d 892, 897 (2007). Pursuant to the Sixth Amendment of the United States Constitution, a criminal defendant is entitled to a \u201cpublic trial.\u201d U.S. Const. amend. VI. \u201c[T]he guarantee has always been recognized as a safeguard against any attempt to employ our courts as instruments of persecution.\u201d In re Oliver, 333 U.S. 257, 270, 92 L. Ed. 682, 692 (1948).\n\u201cThe requirement of a public trial is for the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions . . . .\u201d\nId. at 270 n.25, 92 L. Ed. at 693 n.25 (quoting 1 [sic] Cooley, Constitutional Limitations 647 (8th ed. 1927)). \u201cIn addition to ensuring that judge and prosecutor carry out their duties responsibly, a public trial encourages witnesses to come forward and discourages perjury.\u201d Waller, 467 U.S. at 46, 81 L. Ed. 2d at 38.\n\u201cThe violation of the constitutional right to a public trial is a structural error, not subject to harmless error analysis.\u201d Bell v. Jarvis, 236 F.3d 149, 165 (4th Cir. 2000); see Waller, 467 U.S. at 49 n.9, 81 L. Ed. 2d at 40 n.9. However, \u201cthe right to an open trial may give way in certain cases to other rights or interests, such as the defend-ant\u2019s right to a fair trial or the government\u2019s interest in inhibiting disclosure of sensitive information.\u201d Waller, 467 U.S. at 45, 81 L. Ed. 2d at 38; see also Bell v. Evatt, 72 F.3d 421, 433 (4th Cir. 1995) (\u201cAlthough there is a strong presumption in favor of openness, the right to an open trial is not absolute. The trial judge may impose reasonable limitations on access to a trial in the interest of the fair administration of justice.\u201d). \u201cSuch circumstances will be rare, however, and the balance of interests must be struck with special care.\u201d Waller, 467 U.S. at 45, 81 L. Ed. 2d at 38.\nConsequently, while N.C. Gen. Stat. \u00a7 15-166 permits the trial court to close the courtroom during a rape victim\u2019s testimony, the trial court must balance the interests of the prosecutor with the defendant\u2019s constitutional right to a public trial. Waller, 467 U.S. at 45, 81 L. Ed. 2d at 38. The Supreme Court in Waller set forth the following four-part test that the trial court must engage in while balancing these competing interests: (1) \u201cthe party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced,\u201d (2) \u201cthe closure must be no broader than necessary to protect that interest,\u201d (3) \u201cthe trial court must consider reasonable alternatives to closing the proceeding,\u201d and (4) \u201cit must make findings adequate to support the closure.\u201d Id. at 48, 81 L. Ed. 2d at 39.\nThis Court has recognized the applicability of the Waller test when allowing a courtroom closure pursuant to N.C. Gen. Stat. \u00a7 15-166. See, e.g., State v. Smith, 180 N.C. App. 86, 98, 636 S.E.2d 267, 275 (2006); State v. Starrier, 152 N.C. App. 150, 154, 566 S.E.2d 814, 816-17, cert. denied, 356 N.C. 311, 571 S.E.2d 209 (2002); State v. Jenkins, 115 N.C. App. 520, 525, 445 S.E.2d 622, 625, disc. review denied, 337 N.C. 804, 449 S.E.2d 752 (1994).\nIn the present case, defendant claims that the trial court failed to make findings adequate to support the closure \u2014 the fourth prong of the Waller test. It is undisputed that the trial court made no findings regarding his decision to close the courtroom during M.S.\u2019s testimony, and it appears from his statement to defense counsel that he was not aware of the need to engage in the Waller four-part test.\nThe only North Carolina state court decision on point with regard to findings of fact is Jenkins, 115 N.C. App. at 525-26, 445 S.E.2d at 625, where this Court held that the failure to make findings of fact in accordance with the fourth prong of the Waller test is error. Prior to addressing the defendant\u2019s argument that he was denied his right to a public trial, the Court in Jenkins remanded the case for a new trial on another basis; therefore, the Court merely instructed the trial court to follow the mandates of Waller if it decided to close the proceedings during the new trial. Id. at 526, 445 S.E.2d at 625. The Jenkins Court did not provide the trial court with guidance on how detailed the findings of fact must be. Arguably, the holding in Jenkins that the failure to make findings is error constitutes dicta since it was not essential to the outcome in that case. State v. Sanchez, 175 N.C. App. 214, 218, 623 S.E.2d 780, 782 (2005). Before reaching our decision in the present case, we will examine the holdings in other jurisdictions.\nIn conducting a survey of how various courts have ruled on the sufficiency of findings of fact, it is apparent that there is no bright-line rule. Many courts have, like the Jenkins Court, held that the failure to make findings is error. See, e.g., Carter v. State, 738 A.2d 871, 878 (Md. 1999) (\u201cEven if there were a sufficient basis in this case to close the courtroom, ordinarily, the trial judge must have stated the reason or reasons for doing so on the record. Only in that way will the public be able to be aware of the reasons for closure, and an appellate court able to review the adequacy of those reasons.\u201d); Minnesota v. McRae, 494 N.W.2d 252, 259 (Minn. 1992) (\u201cThe record does not disclose evidence or findings of a showing that closure was necessary to protect the witness or ensure fairness in the trial. On the record before us we cannot say that there has been compliance with the requirements set out in Waller[.}\u201d').\nHowever, some courts have held that the failure to make findings of fact is not reversible error so long as the reviewing court can glean or infer from the record whether the closure was proper. See, e.g., Woods v. Kuhlmann, 977 F.2d 74, 77-78 (2nd Cir. 1992) (\u201cIn light of the information gleaned both from the conference held in chambers with the judge, prosecutor and defense counsel, and from the short exchange between the judge and [the witness], we conclude that the record is sufficient to support the partial, temporary closure of petitioner\u2019s trial.\u201d); United States v. Osborne, 68 F.3d 94, 99 (5th Cir. 1995) (admonishing the trial court for failing to make detailed findings of fact, but holding that the reason behind the closure could be \u201cinferred]\u201d from the record); United States v. Farmer, 32 F.3d 369, 371 (8th Cir. 1994) (\u201cIn this circuit, specific findings by the district court are not necessary if we can glean sufficient support for a partial temporary closure from the record.\u201d).\nAdditionally, some courts have required the trial court to enter detailed findings of fact to justify closure. See, e.g., McIntosh v. United States, 933 A.2d 370, 379-80 (D.C. Cir. 2007) (\u201cIn this case, the court\u2019s general reference to the child\u2019s vulnerability is not sufficient to meet the fourth Waller requirement, nor does it show that the trial court adequately considered other important interests before ordering the courtroom closed.\u201d); State v. Klem, 438 N.W.2d 798, 802 (N.D. 1989) (\u201cWaller requires that a hearing be conducted and that findings be made before a trial is closed to the public.\u201d).\nThe Fourth Circuit has also examined this matter and we find its logic to be persuasive. In Bell, 236 F.3d at 155, the trial court conducted a hearing on the prosecution\u2019s motion to close the courtroom during the minor victim\u2019s testimony. The trial court decided to temporarily close the trial, finding that the child\u2019s testimony regarding repeated sexual abuse by a relative was \u201cof an apparent delicate nature.\u201d Id. at 171. In determining that this finding was sufficient, the court stated:\nIn a case involving long-standing sexual abuse of a minor by a family member, when the trial judge has obviously made a particularized determination that closure is appropriate and has articulated the basic rationale for closing the courtroom, additional \u201cfindings\u201d would be little more tha[n] a statement of the obvious.\nId. at 172 (emphasis added). The court further held that appellate review is not limited to examining the findings; rather, the findings may be \u201cviewed in conjunction with the known circumstances of the case and the record developed[.]\u201d Id. at 174. We do not interpret Bell to mean that in every case the trial court need only state the \u201cbasic rationale.\u201d The trial judge must \u201cevaluate, on a case-by-case basis, the propriety of a temporary closure.\u201d Id. at 171. We do interpret Bell to mean that there must be adequate findings, coupled with the record evidence, such that a reviewing court can examine the trial court\u2019s ruling. As the court noted, \u201cthe better course\u201d is for the trial court to make \u201cdetailed findings.\u201d Id. at 174.\nBased on our review of the applicable caselaw, we adhere to Jenkins and hold that the absence of findings entirely is error. We further hold, based on the logic of the court in Bell, that while the trial court need not make exhaustive findings of fact, it must make findings sufficient for this Court to review the propriety of the trial court\u2019s decision to close the proceedings. See also Fayerweather v. Moran, 749 F.Supp. 43, 46 (D.R.I. 1990) (\u201cAll that [the trial judge] was required to do was to articulate those findings in terms specific enough to permit a reviewing court to determine the basis for the order.\u201d). We caution trial courts to avoid making \u201cbroad and general\u201d findings that impede appellate review. Waller, 467 U.S. at 48, 81 L. Ed. 2d at 40.\nHaving determined that the trial court erred by not entering the Waller findings, we must now decide how to remedy this error. In Waller, the Supreme Court held that \u201cthe remedy should be appropriate to the violation.\u201d Id. at 50, 81 L. Ed. 2d at 41. There, a suppression hearing was closed to the public, not the trial. Id. The Court determined that a new trial would be a \u201cwindfall for the defendant\u201d and elected to remand to the trial court for a new suppression hearing in which \u201csignificant portions\u201d of the hearing would be open to the pub-lie. Id. Since Waller, there has been a split of authority concerning the remedy in cases such as this where the trial court failed to make findings sufficient to support the closure. In McRae, 494 N.W.2d at 260, the court interpreted Waller and stated: \u201cIf a remand for a hearing on whether there was a specific basis for closure might remedy the violation of closing the trial without an adequate showing of the need for closure, then the initial remedy is a remand, not a retrial.\u201d\nGiven the limited closure in the present case and the fact that the trial court did not utilize the Waller four-part test, we hold that the proper remedy is to remand this case for a hearing on the propriety of the closure. The trial court must engage in the four-part Waller test and make the appropriate findings of fact regarding the necessity of closure during M.S.\u2019s testimony in an order. If the trial court determines that the trial should not have been closed during M.S.\u2019s testimony, then defendant is entitled to a new trial. If the trial court determines that the trial was properly closed during M.S.\u2019s testimony on remand, then defendant may seek review of the trial court\u2019s order by means of an appeal from the judgments that the trial court will enter on remand following the resentencing hearing as set out in the next section of this opinion.\nII.\nNext, defendant argues that the trial court erred in determining that he was a prior record level VI for sentencing purposes because defendant\u2019s Florida conviction for burglary is not sufficiently similar to the corresponding offense in this state. We agree.\n\u201cThe trial court\u2019s assignment of a prior record level is a conclusion of law which we review de novo.\u201d State v. Goodwin, 190 N.C. App. 570, 576, 661 S.E.2d 46, 50 (2008). Pursuant to N.C. Gen. Stat. \u00a7 15A-1340.14(e) (2011):\nIf the State proves by the preponderance of the evidence that an offense classified as either a misdemeanor or 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.\nA defendant may stipulate that he or she \u201chas been convicted of a particular out-of-state offense and that this offense is either a felony or a misdemeanor under the law of that jurisdiction.\u201d State v. Bohler, 198 N.C. App. 631, 638, 681 S.E.2d 801, 806 (2009), disc. review denied, _N.C. _, 691 S.E.2d 414 (2010). However,\nthe question of whether a conviction under an out-of-state statute is substantially similar to an offense under North Carolina statutes is a question of law to be resolved by the trial court, and stipulations as to questions of law are generally held invalid and ineffective, and not binding upon the courts, either trial or appellate.\nState v. Moore, 188 N.C. App. 416, 426, 656 S.E.2d 287, 293 (2008) (citation and quotation marks omitted).\nHere, contrary to defendant\u2019s contention, the trial court did not rely on defendant\u2019s stipulation; rather, the trial court explicitly found that the out-of-state convictions were \u201csufficiently similar in nature to those that would have been of the same nature here in North Carolina . . . .\u201d Still, defendant argues that the crimes are not, in fact, sufficiently similar.\nIn North Carolina, burglary is defined as \u201cthe breaking and entering of the dwelling house or sleeping apartment of another in the nighttime with intent to commit a felony therein, whether such intent be executed or not.\u201d State v. Bumgarner, 147 N.C. App. 409, 413, 556 S.E.2d 324, 328 (2001); N.C. Gen. Stat. \u00a7 14-51 (2011). Florida defines burglary in pertinent part as \u201c[e]ntering a dwelling, a structure, or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter[.]\u201d Fla. Stat. \u00a7 810.02(b)(1) (2011). The Florida statute is broader than the North Carolina statute in that it encompasses more than a dwelling house or sleeping apartment. Significantly, the Florida statute does not require that the offense occur in the nighttime or that there be a breaking as well as an entry.Based on these differences, we hold that the Florida burglary statute is not sufficiently similar to North Carolina\u2019s burglary statute; therefore, the trial court erred in assigning four points to the Florida conviction when determining defendant\u2019s prior record level.\nWe find that the Florida statute is sufficiently similar to N.C. Gen. Stat. \u00a7 14-54 (2011), felonious breaking or entering, a Class H felony, because it encompasses any building and does not have to occur in the nighttime. See generally State v. Haymond, 203 N.C. App. 151, 168, 691 S.E.2d 108, 122 (noting the elements of felonious breaking or entering pursuant to N.C. Gen. Stat. \u00a7 14-54(a) as: \u201c(1) the breaking or entering, (2) of any building, (3) with the intent to commit any felony or larceny therein.\u201d (internal quotation marks and citation omitted)), disc. review denied, 364 N.C. 600, 704 S.E.2d 275 (2010). Had the trial court correctly determined that defendant\u2019s Florida conviction was sufficiently similar to North Carolina\u2019s breaking or entering statute, defendant would have received a total of 17 prior record points, instead of 19 points, which would have made him a Level V offender instead \u00f3f a Level VI offender for sentencing purposes. Therefore, not only did the trial court err in finding the Florida statute sufficiently similar to North Carolina\u2019s burglary statute, but this error was not harmless since defendant would be considered a lower level offender. See State v. Lindsay, 185 N.C. App. 314, 315-16, 647 S.E.2d 473, 474 (2007) (noting that this Court applies a harmless error analysis to prior level record points whereby the amount of deducted points must affect the defendant\u2019s record level to require a remand for a new sentencing hearing). Therefore, we reverse and remand for a new sentencing hearing.\nConclusion\nBecause the trial court failed to utilize the Waller four-part test, we remand this case for a hearing on the propriety of the closure. Additionally, we reverse and remand for a new sentencing hearing.\nRemanded in part; Reversed and Remanded in part.\nJudges STROUD and ERVIN concur.\n. We need not address the other three prongs of the Waller test.", "type": "majority", "author": "HUNTER, Robert C., Judge." } ], "attorneys": [ "Paul F. Herzog for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. RICHARD COLT ROLLINS\nNo. COA11-1437\n(Filed 17 July 2012)\n1. Constitutional Law \u2014 right to public trial \u2014 courtroom temporarily closed \u2014 insufficient findings of fact\nThe trial court violated defendant\u2019s Sixth Amendment right to a public trial in a non-felonious breaking or entering, first-degree kidnapping, second-degree rape, and resisting a public officer case when the trial judge temporarily closed the courtroom while the victim testified. The trial court failed to make sufficient findings of fact in accordance with Waller v. Georgia, 467 U.S. 39, to allow the Court of Appeals to review the propriety of the trial court\u2019s decision to close the proceedings. The case was remanded for a hearing on the propriety of the closure.\n2. Sentencing \u2014 prior record level \u2014 out-of-state conviction\u2014 not sufficiently similar \u2014 prejudicial\nThe trial court erred in a non-felonious breaking or entering, first-degree kidnapping, second-degree rape, and resisting a public officer case by determining that defendant was a prior record level VI for sentencing purposes. Defendant\u2019s Florida conviction for burglary was not sufficiently similar to the corresponding offense in this state and the error was not harmless since defendant would have been considered a lower level offender.\nAppeal by defendant from judgments entered 28 September 2010 by Judge C. Philip Ginn in Henderson County Superior Court. Heard in the Court of Appeals 25 April 2012.\nAttorney General Roy Cooper, by Assistant Attorney General Elizabeth J. Weese, for the State.\nPaul F. Herzog for defendant-appellant." }, "file_name": "0572-01", "first_page_order": 582, "last_page_order": 592 }