{ "id": 4132198, "name": "STATE OF NORTH CAROLINA v. ERNESTO CLAXTON", "name_abbreviation": "State v. Claxton", "decision_date": "2013-01-15", "docket_number": "No. COA12-556", "first_page": "150", "last_page": "161", "citations": [ { "type": "official", "cite": "225 N.C. App. 150" } ], "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": "661 S.E.2d 304", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641014 ], "year": 2008, "pin_cites": [ { "page": "312" } ], "opinion_index": 0, "case_paths": [ "/se2d/661/0304-01" ] }, { "cite": "655 S.E.2d 915", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640283 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "920" }, { "page": "920" } ], "opinion_index": 0, "case_paths": [ "/se2d/655/0915-01" ] }, { "cite": "623 S.E.2d 600", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634713 ], "year": 2006, "pin_cites": [ { "page": "604" } ], "opinion_index": 0, "case_paths": [ "/se2d/623/0600-01" ] }, { "cite": "190 N.C. App. 698", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4158299 ], "year": 2008, "pin_cites": [ { "page": "713" } ], "opinion_index": 0, "case_paths": [ "/nc-app/190/0698-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 90-89", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "N.Y. Public Health Law \u00a7 3306", "category": "laws:leg_act", "reporter": "N.Y.", "weight": 2, "year": 2012, "opinion_index": 0 }, { "cite": "N.Y. Penal Law \u00a7 220.00", "category": "laws:leg_act", "reporter": "N.Y.", "weight": 2, "year": 2012, "opinion_index": 0 }, { "cite": "N.Y. Penal Law \u00a7 220.31", "category": "laws:leg_act", "reporter": "N.Y.", "weight": 3, "year": 2012, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 8-3", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2011, "pin_cites": [ { "parenthetical": "\"A printed copy of a statute, ... of another state . . . shall be evidence of the statute law [of such state].\"" } ], "opinion_index": 0 }, { "cite": "307 S.E.2d 156", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "159", "parenthetical": "\"[We hold] that the prosecuting attorney's statement concerning a prior conviction . . . constituted insufficient evidence to support a finding of that prior conviction ....\"" } ], "opinion_index": 0 }, { "cite": "309 N.C. 421", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4766681 ], "year": 1983, "pin_cites": [ { "page": "424-25", "parenthetical": "\"[We hold] that the prosecuting attorney's statement concerning a prior conviction . . . constituted insufficient evidence to support a finding of that prior conviction ....\"" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0421-01" ] }, { "cite": "359 S.E.2d 485", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "491" }, { "page": "491" } ], "opinion_index": 0 }, { "cite": "87 N.C. App. 24", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8357808 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "34" }, { "page": "34" } ], "opinion_index": 0, "case_paths": [ "/nc-app/87/0024-01" ] }, { "cite": "188 N.C. App. 562", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4155327 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "569" }, { "page": "569" } ], "opinion_index": 0, "case_paths": [ "/nc-app/188/0562-01" ] }, { "cite": "255 S.E.2d 322", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "325" } ], "opinion_index": 0 }, { "cite": "41 N.C. App. 524", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550246 ], "year": 1979, "pin_cites": [ { "page": "528" } ], "opinion_index": 0, "case_paths": [ "/nc-app/41/0524-01" ] }, { "cite": "729 S.E.2d 68", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2012, "pin_cites": [ { "page": "71", "parenthetical": "quoting Dixon v. Weaver, 41 N.C. App. 524, 528, 255 S.E.2d 322, 325 (1979)" } ], "opinion_index": 0 }, { "cite": "502 S.E.2d 49", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1998, "pin_cites": [ { "page": "51" }, { "page": "51" }, { "page": "52" }, { "page": "52" } ], "opinion_index": 0 }, { "cite": "130 N.C. App. 113", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11465606 ], "weight": 4, "year": 1998, "pin_cites": [ { "page": "116" }, { "page": "116" }, { "page": "117" }, { "page": "117" } ], "opinion_index": 0, "case_paths": [ "/nc-app/130/0113-01" ] }, { "cite": "572 S.E.2d 863", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 2002, "pin_cites": [ { "page": "866" }, { "page": "866" }, { "page": "866" }, { "page": "866" }, { "page": "866" } ], "opinion_index": 0 }, { "cite": "154 N.C. App. 727", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9252002 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "730" }, { "page": "730" } ], "opinion_index": 0, "case_paths": [ "/nc-app/154/0727-01" ] }, { "cite": "576 S.E.2d 316", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2003, "pin_cites": [ { "page": "319" } ], "opinion_index": 0 }, { "cite": "356 N.C. 642", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511442 ], "year": 2003, "pin_cites": [ { "page": "647" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0642-01" ] }, { "cite": "669 S.E.2d 290", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2008, "pin_cites": [ { "page": "294", "parenthetical": "quoting In re Greens of Pine Glen Ltd., 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003)" } ], "opinion_index": 0 }, { "cite": "362 N.C. 628", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4150837 ], "year": 2008, "pin_cites": [ { "page": "632-33", "parenthetical": "quoting In re Greens of Pine Glen Ltd., 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003)" } ], "opinion_index": 0, "case_paths": [ "/nc/362/0628-01" ] }, { "cite": "679 S.E.2d 464", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "468" } ], "opinion_index": 0 }, { "cite": "198 N.C. App. 371", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4168674 ], "year": 2009, "pin_cites": [ { "page": "377" } ], "opinion_index": 0, "case_paths": [ "/nc-app/198/0371-01" ] }, { "cite": "175 N.C. App. 250", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8351769 ], "year": 2006, "pin_cites": [ { "page": "254" } ], "opinion_index": 0, "case_paths": [ "/nc-app/175/0250-01" ] }, { "cite": "491 S.E.2d 682", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "685", "parenthetical": "quoting N.C. Gen. Stat. \u00a7 15A-1444(a1) (Cum. Supp. 1996) (alteration in original)" } ], "opinion_index": 0 }, { "cite": "127 N.C. App. 536", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11798543 ], "year": 1997, "pin_cites": [ { "page": "540", "parenthetical": "quoting N.C. Gen. Stat. \u00a7 15A-1444(a1) (Cum. Supp. 1996) (alteration in original)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/127/0536-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 90-95", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 7, "pin_cites": [ { "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "N.Y. Penal Law \u00a7\u00a7 220.39", "category": "laws:leg_act", "reporter": "N.Y.", "weight": 5, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-7.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2011, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-71.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2011, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-55", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2011, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-72", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2011, "pin_cites": [ { "page": "(b)(2)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-54", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2011, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 864, "char_count": 23702, "ocr_confidence": 0.738, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.13339194678917574 }, "sha256": "f87ed18c567efcc2f015f7cbbd55e5ef0359c40fd98cbff5134419fb1c9a2e2c", "simhash": "1:2328f92a783f5fd6", "word_count": 3834 }, "last_updated": "2023-07-14T19:12:03.865649+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER, Robert C. and CALABRIA concur." ], "parties": [ "STATE OF NORTH CAROLINA v. ERNESTO CLAXTON" ], "opinions": [ { "text": "HUNTER, JR., Robert N., Judge.\nErnesto Claxton (\u201cDefendant\u201d) appeals a final judgment entered after a jury convicted him of: (i) felonious breaking and entering; (ii) felonious larceny after breaking and entering; and (iii) felony possession of burglary tools. Defendant contends the trial court erred by: (i) sentencing him as a Level V offender despite inconsistencies in the records of his prior out-of-state convictions and (ii) determining two of the prior out-of-state convictions were \u201csubstantially similar\u201d to North Carolina Class G felonies. Upon review, we affirm.\nI. Facts & Procedural History\nDefendant was indicted on 28 March 2011 for: (i) felonious breaking and entering (N.C. Gen. Stat. \u00a7 14-54(a) (2011)); (ii) larceny after breaking and entering (N.C. Gen. Stat. \u00a7 14-72(b)(2) (2011)); (iii) possession of implements of housebreaking (N.C. Gen. Stat. \u00a7 14-55 (2011)); (iv) felonious possession of stolen goods (N.C. Gen. Stat. \u00a7 14-71.1 (2011)); and (v) having attained habitual felon status (N.C. Gen. Stat. \u00a7 14-7.1 (2011)). The State\u2019s evidence tended to show the following facts.\nOn the night of 29 October 2010, Donald Wayne Costner, Jr. (\u201cCostner\u201d), was working as a security guard for an apartment complex construction site in Charlotte. Around 10:50 pm, Costner saw a flashlight shining in an unfinished building. He also heard a noise that \u201csounded like metal pipes on concrete being kicked.\u201d Costner approached the building, called 911, and then observed Defendant walk out of the building carrying two sinks. Costner drew his gun, handcuffed Defendant, and held him until police arrived. CharlotteMecklenburg Police Department Patrol Officer David Georgian subsequently arrived and arrested Defendant for burglary.\nDefendant\u2019s trial occurred during the 10 October 2011 Criminal Session of the Mecklenburg County Superior Court. Defendant pled not guilty to all charges. The jury found Defendant guilty of (i) felonious breaking and entering; (ii) felonious larceny pursuant to breaking and entering; and (iii) possession of burglary tools. It found Defendant not guilty of (i) felonious possession of stolen goods and (ii) attaining habitual felon status.\nAt the 12 October 2011 sentencing hearing, the State presented the trial court with North Carolina and New York Department of Criminal Investigation (\u201cDCI\u201d) records of Defendant\u2019s prior criminal convictions.\nThe North Carolina DCI Record (\u201cNC DCI Record\u201d) described Defendant as follows:\nName: CLAXTON, ERNESTO RICARDO\nFBI Number: 162769P9\nBlack/Male\nDate of Birth: 09-14-1958\nBirth Place: NY\nHeight: 6 Ft. 02 In.\nWeight: 175 Lbs.\nEyes: BROWN\nHair Color: BLACK\nThe New York DCI Record (\u201cNY DCI Record\u201d) provided slightly different information:\nSubject Name(s)CLAXTON, ERNEST R\nCLASTON, ERNEST\nCIAXTON, ERNEST\nCLAYTON, ERNEST R\nCHAXTON, ERNEST\nFBI Number 162769P9\nSex Male\nRace Black\nAsian\nHeight 5\u2019 10\u201d\nWeight 175\nDate of Birth 1958-09-14\n1956-09-14\n1948-09-14\n1958-09-04\n1958-09-15\nHair Color Black\nEye Color Brown\nPlace of Birth New York\nUnknown\nDominican Republic\nDominica\nDenmark\nEthnicity \u2022 Hispanic or Latino\nThe trial court found \u201cthe [NY] DCI record [was] a competent record\u201d to determine his prior record level for sentencing. The NY DCI Record listed 16 prior convictions, including, inter alia, felony convictions for (i) \u201cCriminal Sale Controlled Substance-3rd: Narcotic Drug (220.39 [])\u201d (\u201cThird Degree Drug Sale\u201d), and (ii) \u201cCriminal Sale Controlled Substance-5th degree (220.31[])\u201d (\u201cFifth Degree Drug Sale\u201d). See N.Y. Penal Law \u00a7\u00a7 220.39, 220.31 (2012). The NC DCI Record listed one prior Driving While Impaired conviction.\nThe State argued the New York convictions for Third Degree Drug Sale and Fifth Degree Drug Sale were \u201csubstantially similar\u201d to North Carolina Class G felonies under N.C. Gen. Stat. \u00a7 90-95-(2011). It provided the trial court with the relevant New York and North Carolina statutes. At several points, the District Attorney contended the two New York drug convictions were for sale of heroin. After examining the statutes, the trial court determined Defendant\u2019s two New York drug offenses were \u201csubstantially similar\u201d to North Carolina Class G felonies for sentencing purposes. Based on these records, the trial court assigned Defendant 17 Prior Record Level points, making him a Level V offender.\nIn accordance with sentencing guidelines, the court sentenced Defendant to two sentences of a minimum of 15 months and a maximum of 18 months to run consecutively for (i) felonious breaking and entering and (ii) felonious larceny after breaking and entering. The court also sentenced Defendant to 9 to 11 months to run concurrently for possession of burglary tools. Defendant gave timely notice of appeal.\nII. Jurisdiction & Standard of Review\nThis Court has jurisdiction to hear the instant case pursuant to N.C. Gen. Stat. \u00a7 7A-27(b) (2011). \u201cWhen a defendant assigns error to the sentence imposed by the trial court, our standard of review is \u2018whether [the] sentence is supported by evidence introduced at the trial and sentencing hearing.\u2019 \u201d State v. Deese, 127 N.C. App. 536, 540, 491 S.E.2d 682, 685 (1997) (quoting N.C. Gen. Stat. \u00a7 15A-1444(a1) (Cum. Supp. 1996) (alteration in original)). \u201cThe 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.\u201d N.C. Gen. Stat. \u00a7 15A-1340.14(f) (2011).\n\u201c[W]hether an out-of-state offense is substantially similar to a North Carolina offense is a question of law that must be determined by the trial court.\u201d State v. Hanton, 175 N.C. App. 250, 254, 623 S.E.2d 600, 604 (2006). We review questions of law de novo. State v. Harris, 198 N.C. App. 371, 377, 679 S.E.2d 464, 468 (2009). \u201c \u2018Under a de novo review, the court considers the matter anew and freely substitutes its own judgment\u2019 for that of the lower tribunal.\u201d State v. Williams, 362 N.C. 628, 632-33, 669 S.E.2d 290, 294 (2008) (quoting In re Greens of Pine Glen Ltd., 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003)).\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.\nN.C. Gen. Stat. \u00a7 15A-1340.14(e) (2011)\nIII. Analysis\nDefendant makes two arguments on appeal: (1) the trial court erred in sentencing him as a Level V offender when there were inconsistencies in his NY and NC DCI Records; and (2) the trial court erred in determining two of his prior New York drug convictions were \u201csubstantially similar\u201d to North Carolina Class G felonies. Upon review, we affirm the trial court\u2019s decisions.\nA. Inconsistencies in DCI Records\nDefendant first contends the trial court erred by using the NY DCI Record to calculate his prior record level. Specifically, he argues the State did not meet its burden of proving Defendant\u2019s prior out-of-state convictions due to inconsistencies in the NC and NY DCI Records. We disagree.\nAccording to N.C. Gen. Stat. \u00a7 15A-1340.14(f), prior convictions can be proven by:\n(1) Stipulation of the parties.\n(2) An original or copy of the court record of the prior conviction.\n(3) A copy of records maintained by the Division of Criminal Information, the Division of Motor Vehicles, or of the Administrative Office of the Courts.\n(4) Any other method found by the court to be reliable.\nN.C. Gen. Stat. \u00a7 15A-1340.14(f) (2011). Documents listed under subsections (2) and (3) of this statute are \u201cprima facie evidence that the offender named is the same person as the offender before the court, and that the facts set out in the record are true.\u201d Id.\nFor DCI records, \u201cminor clerical errors,... standing alone, do not render the evidence incompetent.\u201d State v. Safrit, 154 N.C. App. 727, 730, 572 S.E.2d 863, 866 (2002). In Safrit, the State offered court records and a DCI record to determine the defendant\u2019s prior record level. Id. at 729, 572 S.E.2d at 866. The defendant argued the evidence was insufficient because the documents \u201cerroneously stated an incorrect disposition date and incorrectly identified defendant as \u2018Howard Safriet, W, M.\u2019 instead of \u2018Howard Safrit.\u2019 \u201d Id. This Court held these \u201cminor clerical errors\u201d did not render the documents insufficient as evidence of prior out-of-state convictions. See id. at 730, 572 S.E.2d at 866. The documents\u2019 sufficiency was further supported by the fact that they contained identical social security numbers and driver\u2019s license numbers. See id.\nAdditionally, DCI records containing a \u201cdetailed description of defendant including his fingerprint identifier number and FBI number\u201d have \u201csufficient identifying information with respect to defendant to give it the indicia of reliability.\u201d State v. Rich, 130 N.C. App. 113, 116, 502 S.E.2d 49, 51 (1998).\nIn the present case, Defendant contends the NY DCI Record is not sufficient evidence of his prior out-of-state conviction due to inconsistencies with the NC DCI Record. The trial court found the State met its evidentiary burden. We agree with the trial court\u2019s determination.\nLike the discrepancies in Safrit, the inconsistencies of the DCI Records in this case are simply \u201cminor clerical errors.\u201d See Safrit, 154 N.C. App. at 730, 572 S.E.2d at 866. Here, the trial court was presented with DCI Records from North Carolina and New York. The documents are dissimilar in the following particulars. First, the NC DCI Record lists Defendant\u2019s name as \u201cErnesto Ricardo Claxton,\u201d while the NY DCI Record provides five names: \u201cErnest R Claxton,\u201d \u201cErnest Claston,\u201d \u201cErnest Ciaxton,\u201d \u201cErnest R Clayton,\u201d and \u201cErnest Chaxton.\u201d Second, the NC DCI Record describes Defendant\u2019s race as \u201cBlack,\u201d but the NY DCI Record lists his race as both \u201cBlack\u201d and \u201cAsian\u201d and his ethnicity as \u201cHispanic or Latino.\u201d Third, the NC DCI Record provides a birth date of 14 September 1958, while the NY DCI Record provides five possible birthdates: 14 September 1958, 14 September 1956, 14 September 1948, 4 September 1958, and 15 September 1958. Fourth, although the NC DCI Record lists Defendant\u2019s birthplace as New York, the NY DCI Record lists five possibilities: \u201cNew York,\u201d \u201cUnknown,\u201d Dominican Republic,\u201d \u201cDominica,\u201d and \u201cDenmark.\u201d Lastly, the NC DCI Record describes Defendant\u2019s height as six feet, two inches, while the NY DCI Record gives a height of five feet, ten inches.\nNonetheless, the NC and NY DCI Records still have numerous similarities. See id. at 730, 572 S.E.2d at 866. First, the Records list identical weights, eye colors, hair colors, and FBI numbers. As we held in Rich, DCI records with identical FBI numbers have an \u201cindicia of reliability.\u201d See Rich, 130 N.C. App. at 116, 502 S.E.2d at 51. Second, even though the spelling of the names in the two DCI Records vary slightly, they are substantially similar. Third, although the NY DCI Record provides five birthdates and birth locations, it lists the birthdate (14 September 1958) and birth location (New York) provided in the NC DCI Record.\nConsequently, since the burden of the State is only to produce a preponderance of evidence of Defendant\u2019s prior convictions, we conclude the State has met its burden here. Thus, the trial court did not err in using the NY DCI Record to determine Defendant\u2019s prior record level.\nB. Substantially Similar Offenses\nDefendant next argues the trial court committed prejudicial error in determining his prior New York convictions for (i) Third Degree Drug Sale and (ii) Fifth Degree Drug Sale were \u201csubstantially similar\u201d to North Carolina Class G felonies for sentencing purposes. We disagree.\nIn North Carolina, \u201c \u2018[n]ew trials are not awarded because of technical errors. The error must be prejudicial.\u2019 \u201d Sisk v. Sisk,_N.C. App. _,_, 729 S.E.2d 68, 71 (2012) (quoting Dixon v. Weaver, 41 N.C. App. 524, 528, 255 S.E.2d 322, 325 (1979)). \u201cThe burden of showing such prejudice ... is upon the defendant.\u201d N.C. Gen. Stat. \u00a7 15A-1443(a) (2011). \u201cThis burden may be met by showing that there is a reasonable possibility that a different result would have been reached had the error not been committed.\u201d State v. Jones, 188 N.C. App. 562, 569, 655 S.E.2d 915, 920 (2008).\nN.C. Gen. Stat. \u00a7 15A-1340.14(e) explains how to treat prior out-of-state convictions when determining a defendant\u2019s prior record level:\nExcept as otherwise provided in this subsection, a conviction occurring in a jurisdiction other than North Carolina is classified as a Class I felony if the jurisdiction in which the offense occurred classifies the offense as a felony, or is classified as a Class 3 misdemeanor if the jurisdiction in which the offense occurred classifies the offense as a misdemeanor.... If 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.\nN.C. Gen. Stat. \u00a7 15A-1340.14(e) (2011).\nA prosecutor\u2019s statements at trial are not sufficient evidence of \u201csubstantial similarity\u201d under N.C. Gen. Stat. \u00a7 15A-1340.14(e). See State v. Mack, 87 N.C. App. 24, 34, 359 S.E.2d 485, 491 (1987); see also State v. Thompson, 309 N.C. 421, 424-25, 307 S.E.2d 156, 159 (1983) (\u201c[We hold] that the prosecuting attorney\u2019s statement concerning a prior conviction . . . constituted insufficient evidence to support a finding of that prior conviction ....\u201d). Rather, the trial court should examine \u201ccopies of the [other state\u2019s] statutes, and compar[e] . . . their provisions to the criminal laws of North Carolina\u201d to determine whether the State proves by preponderance of evidence the offenses are \u201csubstantially similar.\u201d Rich, 130 N.C. App. at 117, 502 S.E.2d at 52; see also N.C. Gen. Stat. \u00a7 8-3 (2011) (\u201cA printed copy of a statute, ... of another state . . . shall be evidence of the statute law [of such state].\u201d).\nIn the present case, Defendant\u2019s prior New York convictions at issue are: (i) Third Degree Drug Sale (N.Y. Penal Law \u00a7 220.39 (2012)) and (ii) Fifth Degree Drug Sale (N.Y. Penal Law \u00a7 220.31 (2012)). Defendant argues the trial court committed prejudicial error by finding these convictions were \u201csubstantially similar\u201d to North Carolina Class G felonies under N.C. Gen. Stat. \u00a7 90-95. If both New York drug convictions had instead been treated as North Carolina Class I felonies, Defendant would have only received 13 prior record points, as opposed to 17 points. See N.C. Gen. Stat. \u00a7 15A-1340.14(e) (2011). For sentencing purposes, this would have made him a Level IV offender rather than a Level V offender.\nPreliminarily, we note that at trial, the prosecutor contended Defendant\u2019s New York drug convictions involved heroin. However, these statements are insufficient evidence to establish the substance involved in Defendant\u2019s prior drug convictions. See Mack, 87 N.C. App. at 34, 359 S.E.2d at 491. Furthermore, nothing in the record indicates Defendant\u2019s prior convictions involved heroin. The NY DCI Record only describes these convictions as \u201cCriminal Sale Controlled Substance-3rd: Narcotic Drug (220.39 [])\u201d and \u201cCriminal Sale Controlled Substance-5th degree (220.31[]).\u201d\nTherefore, we now compare the relevant New York and North Carolina statutes. See Rich, 130 N.C. App. at 117, 502 S.E.2d at 52.\n1.Third Degree Drug Sale\nN.Y. Penal Law \u00a7 220.39 states \u201c[a] person is guilty of criminal sale of a controlled substance in the third degree when he knowingly and unlawfully sells:\u201d\n1. a narcotic drug; or\n2. a stimulant, hallucinogen, hallucinogenic substance, or lysergic acid diethylamide and has previously been convicted of an offense defined in article two hundred twenty or the attempt or conspiracy to commit any such offense; or\n3. a stimulant and the stimulant weighs one gram or more; or\n4. lysergic acid diethylamide and the lysergic acid diethylamide weighs one milligram or more; or\n5. a hallucinogen and the hallucinogen weighs twenty-five milligrams or more; or\n6. a hallucinogenic substance and the hallucinogenic substance weighs one gram or more; or\n7. one or more preparations, compounds, mixtures or substances containing methamphetamine, its salts, isomers or salts of isomers and the preparations, compounds, mixtures or substances are of an aggregate weight of one-eighth ounce or more; or\n8. phencyclidine and the phencyclidine weighs two hundred fifty milligrams or more; or\n9. a narcotic preparation to a person less than twenty-one years old.\nN.Y. Penal Law \u00a7 220.39 (2012). In New York, \u201c[criminal sale of a controlled substance in the third degree is a class B felony.\u201d Id. New York law defines a \u201cnarcotic drug\u201d as \u201cany controlled substance listed in schedule 1(b), 1(c), 11(b), or 11(c) other than methadone.\u201d N.Y. Penal Law \u00a7 220.00 (2012).\nThe State contends this offense is \u201csubstantially similar\u201d to N.C. Gen. Stat. \u00a7 90-95 (2011). This statute provides:\n(a) Except as authorized by this Article, it is unlawful for any person:\n(1) To manufacture, sell or deliver, or possess with intent to manufacture, sell or deliver, a controlled substance;\n(2) To create, sell or deliver, or possess with intent to sell or deliver, a counterfeit controlled substance;\n(3) To possess a controlled substance.\n(b) Except as provided in subsections (h) and (i) of this section, any person who violates G.S. 90-95(a)(l) with respect to:\n(1) A controlled substance classified in Schedule I or II shall be punished as a Class H felon, except as follows: (i) the sale of a controlled substance classified in Schedule I or II shall be punished as a Class G felony, and (ii) the manufacture of methamphetamine shall be punished as provided by subdivision (la) of this subsection.\n(2) A controlled substance classified in Schedule III, IV, V, or VI shall be punished as a Class I felon, except that the sale of a controlled substance classified in Schedule III, IV, V, or VI shall be punished as a Class H felon. The transfer of less than 5 grams of marijuana or less than 2.5 grams of a synthetic cannabinoid or any mixture containing such substance for no remuneration shall not constitute a delivery in violation of G.S. 90-95(a)(l).\nN.C. Gen. Stat. \u00a7 90-95 (2011) (emphasis added).\nWe do not believe the trial court erred in determining Defendant\u2019s conviction for Third Degree Drug Sale is \u201csubstantially similar\u201d to a North Carolina class G felony under N.C. Gen. Stat. \u00a7 90-95.\nThe record clearly states Defendant\u2019s New York conviction involved sale of a \u201cnarcotic drug.\u201d Under New York law, this means the substance fell under Schedules 1(b), 1(c), 11(b), or II(c). See N.Y. Penal Law \u00a7 220.00 (2012); N.Y. Public Health Law \u00a7 3306 (2012). These portions of the New York Drug Schedule are almost identical to the North Carolina lists of Schedule I and Schedule II controlled substances. See N.C. Gen. Stat. \u00a7\u00a7 90-89 and 90-90 (2011); N.Y. Public Health Law \u00a7 3306 (2012). In fact, of the over 120 drugs listed in New York Drug Schedules 1(b), 1(c), 11(b), or 11(c), we find only a small number of drugs that do not appear in Schedules I and II of the North Carolina statutes. In North Carolina, sale of a Schedule I or II controlled substance is a Class G felony. N.C. Gen. Stat. \u00a7 90-95 (2011). Consequently, the trial court did not err in determining Third Degree Drug Sale in New York is \u201csubstantially similar\u201d to a North Carolina Class G felony.\nAlthough the New York and North Carolina drug schedules are not exactly identical, \u201cthe requirement set forth in N.C. Gen. Stat. \u00a7 15A-1340.14(e) is not that the statutory wording precisely match, but rather that the offense be \u2018substantially similar.\u2019 \u201d State v. Sapp, 190 N.C. App. 698, 713, 661 S.E.2d 304, 312 (2008). Furthermore, Defendant makes no contention his New York convictions involve one of the few narcotics not listed in North Carolina Schedules I or II. Thus, even though the relevant New York and North Carolina Drug Schedules are not exactly identical, Defendant has not met his burden of showing this dissimilarity resulted in prejudicial error. See N.C. Gen. Stat. \u00a7 15A-1443 (2011); Jones, 188 N.C. App. at 569, 655 S.E.2d at 920.\nSince the relevant New York and North Carolina drug schedules substantially overlap, we conclude the trial court did not err by determining Defendant\u2019s Third Degree Drug Sale offense is \u201csubstantially similar\u201d to a North Carolina class G felony.\n2. Fifth Degree Drug Sale\nThe trial court also found Defendant\u2019s prior New York conviction for Fifth Degree Drug Sale was \u201csubstantially similar\u201d to N.C. Gen. Stat. \u00a7 90-95 (2011). We conclude no prejudicial error occurred.\nN.Y. Penal Law \u00a7 220.31 states \u201c[a] person is guilty of criminal sale of a controlled substance in the fifth degree when he knowingly and unlawfully sells a controlled substance. Criminal sale of a controlled substance in the fifth degree is a class D felony.\u201d N.Y. Penal Law \u00a7 220.31 (2012).\nThe record does not indicate the type of controlled substance involved in this offense. However, even if Defendant\u2019s conviction for Fifth Degree Drug Sale were treated as a North Carolina Class I felony under N.C. Gen. Stat. \u00a7 15A-1340.14(e), given our analysis of his Third Degree Drug Sale conviction he would still receive 15 prior record level points. He thus would still be classified as a Level V offender. Therefore, we conclude the trial court did not commit prejudicial error by finding Defendant\u2019s New York drug conviction for Fifth Degree Drug Sale is \u201csubstantially similar\u201d to a North Carolina Class G felony.\nIV. Conclusion\nWe conclude the trial court did not err by sentencing Defendant as a Level V offender despite inconsistencies in the NY and NC DCI Records. We further conclude the trial court did not commit prejudicial error by determining Defendant\u2019s two New York drug convictions were \u201csubstantially similar\u201d to North Carolina Class G felonies. Thus, the trial court\u2019s decision is\nAFFIRMED.\nJudges HUNTER, Robert C. and CALABRIA concur.", "type": "majority", "author": "HUNTER, JR., Robert N., Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Mary S. Mercer, for the State.", "Harrington, Gilleland, Winstead, Feindel & Lucas, LLP, by Anna S. Lucas, for Defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ERNESTO CLAXTON\nNo. COA12-556\nFiled 15 January 2013\n1. Sentencing \u2014 prior record level \u2014 calculation\u2014New York records \u2014 preponderance of evidence\nThe trial court did not err in a felonious breaking and entering, felonious larceny after breaking and entering, and felony possession of burglary tools case by using the New York Department of Criminal Investigation records to calculate defendant\u2019s prior record level' even though defendant alleged there were inconsistencies. Since the State was only required to prove defendant\u2019s prior convictions by a preponderance of evidence, the State met its burden.\n2. Sentencing \u2014 prior New York drug convictions \u2014 substantially similar to North Carolina Class G felonies\nThe trial court did not err in a felonious breaking and entering, felonious larceny after breaking and entering, and felony possession of burglary tools case by determining that two of defendant\u2019s prior New York drug convictions were substantially similar to North Carolina Class G felonies. The relevant New York and North Carolina drug schedules substantially overlapped.\nAppeal by defendant from judgment entered 12 October 2011 by Judge Laura A. Bridges in Mecklenburg County Superior Court. Heard in the Court of Appeals 10 October 2012.\nAttorney General Roy Cooper, by Assistant Attorney General Mary S. Mercer, for the State.\nHarrington, Gilleland, Winstead, Feindel & Lucas, LLP, by Anna S. Lucas, for Defendant-appellant." }, "file_name": "0150-01", "first_page_order": 160, "last_page_order": 171 }