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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. STEVEN CHARLES PRUSH
Filed: 21 August 2007
1. Sexual Offenses_first-degree sexual offenses_two acts of fellatio_sufficiency of
The State presented sufficient evidence to support defendant's 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's garage and once behind a shed.
2. Sentencing--calculation or prior record level--elements of prior
The trial court erred in calculating defendant's prior record level where defendant was
sentenced for several sexual offenses against a child, including first-degree sexual offense; none
of defendant's 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. § 15A-1340(b)(6), which
raised his prior record level. Defendant's stipulation to that prior record level is ineffective
because comparison of the elements of criminal offenses does not require the resolution of
Appeal 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.
Attorney General Roy Cooper, by Assistant Attorney General
David Gordon, for the State.
Jarvis John Edgerton, IV, for Defendant.
Defendant 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. § 14-27.4(a) (2005), two
counts of indecent liberties with a minor, N.C. Gen. Stat. § 14-
202.1 (2005), and one count of disseminating obscenity, N.C. Gen.Stat. § 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's conviction but remand for resentencing.
The State's evidence at trial tended to show that Diane
lived with her two sons, Charlie and Chad, a few houses down
(See footnote 1)
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 touched him
Thereupon, the Winston-Salem Police Department commenced an
Detective 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's garage and once behind the shed inCharlie's backyard
. On 7 July 2005, Detective Israel confronted
Defendant with Charlie's 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's garage and once
behind the shed
. Defendant was subsequently arrested, indicted,
SUFFICIENCY OF THE EVIDENCE
 Defendant 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 that a second sexual act of fellatio occurred beyond the
one [Defendant] was convicted for in case number 05 CRS 58324. We
Our standard of review of a trial court's ruling on a motion
to dismiss for insufficient evidence 'is 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's being the perpetrator of such offense.' State v.
, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002) (quoting State
, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980)).
Substantial evidence is that amount of relevant evidence necessary
to persuade a rational juror to accept a conclusion. Scott
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 'in the light most favorableto the State, giving the State the benefit of all reasonable
, 356 N.C. at 596, 573 S.E.2d at 869 (citation
omitted). 'Contradictions and discrepancies do not warrant
dismissal of the case but are for the jury to resolve.' Id.
Under North Carolina law, a person is guilty of a first-degree
sexual offense if the person engages in a sexual act 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.
§ 14-27.4(a)(1) (2005); see also State v. Griffin
, 319 N.C. 429,
355 S.E.2d 474 (1987) (listing the elements of first-degree sexual
offense). Sexual act 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's body. N.C. Gen. Stat. § 14-27.1(4) (2005).
In 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's argument is that there was
insufficient evidence of a second act of fellatio.
At trial, Charlie, then age seven, first testified that
Defendant put his mouth on Charlie's penis five times: three times
in the woods, once in Defendant's garage, and once behind Charlie's
Q. Okay. We're talking about if anybody --
if anybody ever touched you on your private
Q. Who touched you on your private part?
Q. And when he touched you, where were you?
A. Woods first.
Q. Okay. And was there a second time?
A. Three times.
Q. So, can we do it one at a time?
Q. So, the first time [Defendant] touched
you, where did it happen?
. . . .
Q. And . . . when you were in the woods, is
that the only thing -- well, what did -- did
[Defendant] touch your front part with?
A. His hand.
Q. And was that the only thing he touched
your front part with?
Q. What other part of [Defendant] touched
your body? Do you remember your body parts?
. . . .
Q. So -- you said he used another part to
Q. What part was it?
A. His mouth.
Q. And what did he touch on your body with
A. My front part.
. . . .
Q. What else happened in the woods?
A. He touched me on my bottom.
. . . .
Q. So, did all this happen on the first time?
Q. When did all of this happen?
A. I forgot.
Q. All right. Did -- you said something
happened three times?
Q. Was it the first time this happened?
A. It happened five times.
A. It happened three times in the woods and
it happened -- it happened one time in the
garage and one time in the back of my shed.
When asked more particularly about the incident in the garage,
however, Charlie contradicted his earlier testimony that Defendant
put his mouth on Charlie's penis on that occasion:
Q. And on -- on the -- in the -- in the
garage, did all three things happen that you
Q. What happened in the garage?
A. He felt my bottom.
. . . .
Q. And anything else happen?
A. He touched my front part.
Q. Okay. And what else happened?
A. That's all.
Likewise, when asked more particularly about the incident behind
the shed, Charlie contradicted his earlier testimony that Defendant
put his mouth on Charlie's penis on that occasion:
Q. Okay. What happened in the shed -- I mean
-- behind the shed?
A. He touched me in my -- in my -- he touched
me at my front part.
Q. With what?
A. His hands.
Q. Anything else?
A. He rubbed my bottom.
Q. And anything else?
A. That's all.
Finally, Charlie testified as follows:
Q. Now, how many times did [Defendant] put
his mouth on your private part?
Q. And where did that take place?
A. In the woods.
Q. And how many times did he touch you with
his hand on your private part?
Q. And how many times did he touch your
bottom with his private -- I mean -- with his
Q. Okay. But he only touched you with your
[sic] mouth at -- in the woods?
Corroborating Charlie's initial testimony,
(See footnote 2)
testified, without defense objection, that Charlie told him
Defendant had twice performed fellatio on him: once in Defendant's
garage and once behind Charlie's shed
. Again without objection,
the State published Ms. Vaughn's videotaped interview with Charlie
to the jury in which Charlie stated that Defendant twice performed
fellatio on him: once in Defendant's garage and once behind
. Such evidence corroborates Charlie's 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's argument is overruled.
 In 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's express stipulation to
his prior record level:
[PROSECUTOR]: . . . Your Honor, for purposes
of sentencing, the defendant is a record Level
Mr. Ferguson, [defense counsel,] do you wish
to stipulate to his level of being a Level V?
MR. FERGUSON: I will stipulate.
Defendant so stipulated after the State introduced Defendant's
prior record level worksheet which assigned fourteen points for
prior convictions and one point pursuant to N.C. Gen. Stat. § 15A-
1340.14(b)(6) (2005) because all the elements of the present
offense are included in any prior offense[.] 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's imposition of felony
sentence proper where defense counsel stipulated to defendant's
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 contains an element not
found in any of [Defendant's] prior convictions,
the trial court
erred in assigning the fifteenth point which, pursuant to N.C. Gen.
Stat. § 15A-1340.14(c), increased his prior record level from IV to
V. We agree.
If an offender is convicted of more than one offense at the
same time, the court may consolidate the offenses for judgment andimpose a single judgment for the consolidated offenses. N.C. Gen.
Stat. § 15A-1340.15(b) (2005). Such a judgment shall contain a
sentence disposition specified for the class of offense and prior
record level of the most serious offense
[T]he court shall determine the prior record level for the
offender pursuant to G.S. 15A-1340.14. N.C. Gen. Stat. § 15A-
1340.13(b) (2005). The prior record level of a felony offender is
determined by calculating the sum of the points assigned to each of
the offender's prior convictions . . . . N.C. Gen. Stat. § 15A-
Points are assigned as follows:
. . . .
(3) For each prior felony Class E, F, or G
conviction, 4 points.
. . . .
(5) For each prior misdemeanor conviction as
defined in this subsection, 1 point. . . .
(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.
N.C. Gen. Stat. § 15A-1340.14(b) (2005). [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 to calculate a prior record level.
N.C. Gen. Stat. § 15A-1340.14(d) (2005). The State bears the
burden of proving, by a preponderance of the evidence, that a priorconviction exists . . . . N.C. Gen. Stat. § 15A-1340(f) (2005).
Prior convictions shall be proved by, inter alia
, [s]tipulation of
the parties. N.C. Gen. Stat. § 15A-1340(f)(1) (2005).
In 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
most serious offense in each consolidated judgment is first-
degree sexual offense, a Class B1 felony. N.C. Gen. Stat. § 14-
27.4(b) (2005). Pursuant to N.C. Gen. Stat. § 15A-1340.15(b),
then, the trial court was required to sentence Defendant according
to his prior record level for that offense.
Under 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.
§ 14-27.4(a)(1); 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's prior convictions
include all of the elements of first-degree sexual offense. See
, 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.
In 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 'does not require
the resolution of disputed facts.' 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 involves
statutory interpretation, which is a question of law. Id.
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. 'Stipulations as to questions of law are generally held
invalid and ineffective, and not binding upon the courts, either
trial or appellate . . . .' 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's stipulation is ineffective in
determining whether all the elements of the present offense are
included in any prior offense. This case is remanded for
NO ERROR IN TRIAL; REMANDED FOR RESENTENCING.
Chief Judge MARTIN and Judge STEELMAN concur.
Pseudonyms will be used throughout the opinion to protect the
The State's contention that Detective Israel's 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
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